On May 20, 2020, the Internet consultation for the draft Data Protection Collection Bill was launched. This bill will amend the General Data Processing Regulation Implementation Act (UAVG) and other legislation regarding the processing of personal data.
The changes relevant to healthcare have been listed in a previous blog. One of the adjustments relates to the retention and management of medical records in the event of special circumstances. For example, the bankruptcy or death of the care provider. The bill creates a legal basis to transfer these duties to another care provider.
A health care provider is required to establish, maintain and retain medical records. The retention obligation is for 20 years from the last change in the record. The duty to keep a medical record is not linked to maintaining caregiver status. This means that this obligation continues to apply in case of, for example, bankruptcy, retirement or death of a caregiver. It therefore remains the responsibility of the care provider (which may also be a legal entity) to ensure that records are kept for the prescribed retention period.
In practice, this often goes well, but not always. Then it is not arranged that the responsibility for keeping the medical record is taken over by another care provider. It is often still possible to find another care provider to take on these tasks. For example, in the case of a relaunch in bankruptcy: the acquiring party.
When this fails, the Minister of Health, Welfare and Sport (VWS) or the Minister of Medical Care (MZ) comes around the corner. The Minister may deem that care for the preservation of medical records can no longer be guaranteed. If no other solution is possible, the relevant Minister will play a facilitating role in preserving the records. The care for the preservation of the records will then be assigned to a third party. On this third party also has medical confidentiality. This may be, for example, a care provider or healthcare institution. This care provider or institution thus becomes solely responsible for keeping the records. The responsibility for the quality of care remains with the original care provider.
In such a case, the medical records are transferred directly from, for example, the receiver (in case of bankruptcy) or a next of kin (in case of death of the care provider) to the other care provider or institution. The Minister of Health, Welfare and Sport or the Minister for MZ do not receive the files themselves.
Whenever possible, consent will be sought from the patient for the transfer of medical records to that third party. In very exceptional cases, however, this is practically impossible. For example, because of the number of records, or when the patients' current address information is no longer retrievable (because asking was impossible or required disproportionate effort).
In assessing, whether there is a situation in which care for the preservation of medical records can no longer be guaranteed, the relevant minister will take into account the extent to which attempts have been made to obtain current address information and the considerations involved. Furthermore, the intended transfer will be made known as widely as possible in a timely manner. For example, by notification through various channels (such as by general practitioners in the vicinity of the care provider whose responsibility for managing and keeping the medical records has been taken over). This will prevent records being transferred to a third party against the patient's wishes.
The reason for creating this legal basis is the bankruptcy of MC Slotervaart. During the settlement of the bankruptcy, it turned out that the transfer of medical records is a time-consuming exercise. This also revealed that there are ambiguities as to whether transferring medical record data to a third party meets the requirements of the AVG.
The Personal Data Authority and MC Slotervaart trustees were involved in the preparation of the provision.
The Data Protection Collection Act is before you for consultation. You have until July 14 to submit your response to the consultation.
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