Answers by State Secretary Broekers-Knol of Justice and Security to the written questions by members Van Toorenburg (CDA) and Becker (VVD) on the message "Murder of Rik van de Rakt: gala of errors around Sudanese suspect; 'Crucial information not shared due to privacy'".
Question 1
Are you familiar with the message 'Murder of Rik van de Rakt: error gala around Sudanese suspect; 'Crucial information not shared due to privacy''?(1)
Answer to question 1
Yes.
Question 2
Are you familiar with the investigation report of research firm Necker van Naem that was engaged by the municipality of Bernheze to investigate the murder of Rik van de Rakt? Do you intend to share that report with the Chamber?
Answer 2
I have taken note of the research report. The report in question has been made public by the municipality of Bernheze. For the full report, I refer you to the website of the municipality of Bernheze.(2)
Question 3
Can you indicate whether the conclusions of the research report, as reflected in the newspaper article, are correct?
Answer 3
The research report referred to by De Telegraaf was commissioned by the Municipality of Bernheze. To what extent the conclusions from the report, as presented in the newspaper article, are correct, I cannot indicate, partly because I had no involvement in the investigation. It is also important to await the criminal investigation underway into the circumstances of the incident to complete the picture. However, I do think it is valuable that the municipality has initiated the investigation and that the results will be used to see if there are possibilities to improve the information exchange in housing and guidance of status holders. This is an important point of attention from the report.
Question 4
Can you please indicate how it happened that crucial information about this status holder's mental state was not shared with the placement municipality? Could you indicate whether it is common practice that information about the mental state of status holders is not shared with placement municipalities or other relevant government agencies? Even if the relevant status holder has already committed a criminal offense on several occasions and there were therefore indications that things were going in the wrong direction with the status holder? What (legal) obstacles prevent these data from being (or being able to be) shared?
Question 5
Can you indicate how municipalities should assess the mental state of a status holder - and thus what is needed in terms of assistance and housing - if they do not have crucial information? Do you share the opinion that placement municipalities should have this information?
Answers 4 and 5
Strict privacy laws and regulations apply to the sharing of medical information, which is no different for status holders than for other citizens in the Netherlands. COA must comply with these and can only share information if it fits within the legal framework. In this case, COA shared as much information as possible with involved partners, including crucial information regarding the special circumstances of the particular status holder. I explain this in more detail in the following paragraphs.
COA processes personal data of residents within the framework of its tasks primarily on the basis of the performance of a task in the public interest or a task in the exercise of public authority. This legal basis is included in Article 6(1)(e) of the AVG. This public task is further elaborated in article 3 paragraph 1 part d of the COA Act, based on which COA is charged with mediating the outflow of permit holders to housing in the municipality. Upon first entering a COA location, an asylum seeker is asked for permission to share his/her personal data with chain partners, including the municipality. Subsequently, municipalities are responsible for housing permit holders in accordance with the imposed task order based on Section 28 of the Housing Act 2014. In order to carry out its task, COA shares through the Task Order Tracking System (TVS) those data necessary for the municipality in the context of housing the permit holder(s).
As mentioned, the sharing of medical information is subject to strict privacy laws and regulations. COA does not have access to and/or disposition of medical records because it is not a healthcare facility. Within its remit, however, COA is responsible for organizing accessibility to care for residents. That is why COA has concluded cooperation agreements with care partners for both public health care (GGD GHOR NL) and curative health care (Gezondheidszorg Asielzoekers, GZA), in accordance with the principles of regular health care in the Netherlands. GZA provides general practitioner care at locations and in that role has access to a status holder's medical file.
When a resident moves to a municipality, the new general practitioner there has the option of requesting the medical records of this status holder from GZA. However, this requires the consent of the status holder.
Recently, the organizations involved in the reception and guidance of status holders (COA, VluchtelingenWerk Nederland, Pharos, GGD, GZA, Landelijke Huisartsen Vereniging (LHV) and VNG) agreed to make an adjustment in TVS which will make it possible for COA to proactively report to the municipality from January 2020 onwards when there is reason to bring a new GP into contact with the status holder at an accelerated pace. Such information was previously also shared with the municipality when necessary, possibly supported by a Social Medical Advice (SMA).(3)
The initiative to request a medical record lies with the health care provider and the encouragement to get in touch with a general practitioner lies with the municipality. Moreover, it is up to the person concerned to actually keep the appointments with health care providers. In this case, the preparation for the deportation of the concerned status holder had already taken place before this recent adjustment in TVS was made.
The research report had as a major concern for COA the exchange of information when placing a status holder from an asylum seekers' center in a municipality. As I mentioned above, COA does not have access to and/or disposition of medical records because it is not a health care institution. In this particular situation, as the report also shows, there was contact between the municipality and COA on several occasions with the goal of providing appropriate housing and guidance. Also, on its own initiative, COA twice requested a Social Medical Opinion (SMA) and shared its purport through the TVS.
This is a period of more than a year, during which concerns and concerns about the status holder were shared between the municipality and COA.
Question 6
Do you share the view that societal security should never be compromised because of privacy?
Answer 6
Societal security is a great good and that is the reason that information may be shared in the cases at hand. The balance of interests between societal security on the one hand and privacy on the other is discounted in the laws and regulations cited above. For COA, the basis is that it shares what it is allowed and required to share pursuant to privacy laws and regulations. The TVS is an aid in this regard.
Question 7
Do you share the opinion that culpable "particularly" serious crimes such as this murder/death should always lead to revocation of the residence permit in line with the policy tightened in 2015 to be able to revoke residence permits? Are you prepared to revoke the residence permit if the accused is irrevocably convicted?
Answer to Question 7
It is standing Cabinet policy that exhibiting socially unacceptable behavior should affect a residence permit as much as possible, including an asylum permit. On July 1, 2020(4) I sent your Chamber a letter where the obstacles regarding the revocation of an asylum residence permit were outlined. Importantly, for the revocation of an asylum residence permit there are more stringent international requirements in addition to the national criminal standards of the sliding scale. Furthermore, a conviction must be irrevocable before the asylum residence permit revocation procedure can begin. For further answers to this question, I refer to the letter I sent to your Chamber on July 1, 2020 on this topic.
Question 8
Do you share the view that everything must be done to prevent another tragedy like this one? Are you therefore prepared to scrutinize the system of allocation of status holders to municipalities and the information sharing that goes with it very quickly, so that crucial information about a status holder's mental state can be shared from now on? If so, are you prepared to inform the Chamber about this before the end of the summer recess?
Answer to question 8
Obviously, I find what happened very regrettable. It is important that the parties involved in the housing and guidance of status holders jointly examine whether improvements in the process are possible. When it comes to cooperation and the exchange of information (incl. TVS), there were several consultations on this between COA, some municipalities and the Association of Netherlands Municipalities (VNG) during the year. The system of allocation and guidance of status holders is periodically reviewed by these involved parties for opportunities for improvement. This tragic incident is of course included in this.
As indicated above, the process of sharing medical information of a status holder upon transfer to a municipality has been the subject of frequent consultation between COA, VWN, Pharos, GGD, GZA, LHV and VNG until recently. Among other things, this has led to the above-mentioned improvement with which, since January 2020, it can be indicated in TVS whether there is reason to accelerate the appointment of a GP to discuss medical problems.
(1) Telegraph July 2, 2020, https://www.telegraaf.nl/nieuws/1470354892/moord-op-rik-van-de-rakt-foutengala-rond-soedanese-verdachte
(2) https://www.bernheze.org/nieuws/2020/07/02/onafhankelijk-onderzoek-naar-proces-statushouder-afgerond
(3) A Social Medical Opinion (SMA) is an independent medical opinion provided by MediFirst. COA requests an SMA if a permit holder may be eligible for specific housing upon removal to the municipality based on medical and/or psychosocial circumstances.
(4) https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2020Z13020&did=2020D27786
