There are various laws that include caregiver requirements and patient/client rights (in this particular case, this pertains to Radboud University (RU) staff members). These laws include the Medical Treatment Contracts Act (WGBO), the Individual Healthcare Professions Act (BIG Act), the Healthcare Quality, Complaints and Disputes Act (WKKGZ) and the General Data Protection Regulation (GDPR). These guidelines are intended for in-house use by the campus psychologists and contain an overview of the campus psychologists’ various requirements as well as the staff members’ rights. Where relevant, this information has also been included in the ‘Staff Members’ Brochure’, which staff members receive when they utilise the campus psychologist’s services.
The following topics will be discussed in these guidelines:
1. Requirements pursuant to the Medical Treatment Contracts Act (WGBO)
1.1 Requirement to inform (Article 7:448 of the Dutch Civil Code (BW))
1.2 Consent (informed consent) (Article 7:450 of the Dutch Civil Code (BW))
1.3 Record-keeping requirement (Article 7:454 of the Dutch Civil Code (BW))
1.4 Alteration/deletion of medical records (Article 7:455 of the Dutch Civil Code (BW))
1.5 Inspection/copy of medical file (Article 7:456 of the Dutch Civil Code (BW))
1.6 Professional confidentiality (Article 7:457 of the Dutch Civil Code (BW))
2. Requirements pursuant to the Healthcare Quality, Complaints and Disputes Act (WKKGZ)
3. Requirements pursuant to the Individual Healthcare Professions Act (BIG Act)
4. Requirements pursuant to the General Data Protection Regulation (GDPR)
5. Appendix: ‘Brochure for staff members’
1. Requirements pursuant to the Medical Treatment Contracts Act (WGBO)
1.1 Requirement to inform (Article 7:448 of the Dutch Civil Code (BW))
The campus psychologist is well-acquainted with counselling techniques for stress, tension, mood, depression and anxiety symptoms. In the majority of cases, even though the staff member has little knowledge of these symptoms, they have been affected by them. It is vital that the campus psy-chologist provides the staff member with details about the counselling programme, so that they understand the aim of the programme and so that they know what they can expect to achieve (in practical terms and with regards to the content of the programme). The starting point is that the campus psychologist and the staff member must mutually decide how the counselling programme can best be implemented. The specific situation and personal needs of the staff member are cen-tral to this process. Among other things, the requirement to inform is vital to gaining the required consent of the staff member so that counselling may begin (see Section 1.2).
The requirement to inform has been expressed in the brochure as follows:
‘Before the campus psychologist begins your counselling, they will discuss with you what the counselling will entail, what the objective of the counselling is, the approach that the campus psychologists will take and how the process will work. You are always free to express which aspects you wish to work on and what you expect to achieve from the counselling.’
1.2 Consent (informed consent) (Article 7:450 of the Dutch Civil Code (BW))
A staff member must grant their consent for (i) entering into a medical treatment contract and (ii) for taking the specific steps that will be required for implementing this contract. This means that the campus psychologist must ask the staff member whether they wish to begin the proposed counselling programme and whether they agree with the proposed counselling plan (insofar as a counselling plan has been drawn up). Consent may be verbal or written, but it may also be implied or tacit. In this case, implicit consent for starting the counselling programme is sufficient. Since it was the staff member who approached the campus psychologist, if they wish to continue with the counselling after the campus psychologist has given them the necessary information during the intake interview, this would imply that the staff member has agreed to the programme. It is there-fore important that the campus psychologist provides the staff member with information about the counselling process (see above).
The requirement to obtain consent has been expressed in the brochure as follows:
‘Before the campus psychologist begins your counselling, they will discuss with you what the counselling will entail, the objective of the counselling, the approach that the campus psy-chologists take and how the process will work. […] You can then decide for yourself whether you wish to begin this process.’
1.3 Record-keeping requirement (Article 7:454 of the Dutch Civil Code (BW))
The campus psychologists are required to create and maintain a file for each staff member. The campus psychologist must include all of the information in this file that is necessary for adequate care. This may include: correspondence, interview reports and completed questionnaires. Non-personal work notes that are kept by the campus psychologist do not fall under the record-keeping requirement. This refers to notes that have been written for personal use, which should not be accessible to other persons. The files must be stored for twenty years, counting from the time when the file was last amended. A file may obviously have to be deleted before the twenty years have passed if the staff member so requests (for more information about this, see Section 1.4). The files may be deleted after twenty years without the staff member’s request, unless good caregiver-ship dictates that a file should be kept for a longer period.
The record-keeping requirement has been expressed in the brochure as follows:
‘The campus psychologist shall keep a file of the information from all of the sessions. The campus psychologist shall include all of the information in this file that is relevant for the counselling that you receive.’
1.4 Alteration/deletion of medical records (Article 7:455 of the Dutch Civil Code (BW))
The staff member has the right to request either in writing or electronically that their medical file be deleted. With relation to this right, the Central Disciplinary Committee for the Healthcare Sector (CTG) has stated that a patient (in this case: the staff member) may also specifically request the deletion of certain words, phrases, paragraphs or sections (1). In accordance with current case law, this means that a staff member may also make a particular request to have specific subject matter or a specific section deleted from their file. The campus psychologist must ‘immediately’ comply with a request to delete information, i.e., in any case within one month of having received the re-quest. In this case, it does not matter that the retention period of twenty years has not yet expired. The law states that a request to delete information need not be fulfilled if (i) the retention of the data is in the interests of someone other than the staff member (e.g., if the staff member has lodged a disciplinary complaint against the campus psychologist) or (ii) certain legislation precludes the deletion of information. Whether any of these exceptions apply will depend on the circum-stances of the situation.
(1) CTG The Hague 19 March 2021, ECLI:NL:TGZCTG:2021:61
The right to alter/delete information has been expressed in the brochure as follows:
‘There is a legal requirement to retain your file for twenty years. It is possible to have your file deleted, except where otherwise stated. You may request that the information be delet-ed by submitting your request in writing or electronically (by email) to your campus psy-chologist. The campus psychologist will process your request and respond to it as soon as possible.’
1.5 Inspection/copy of medical file (Article 7:456 of the Dutch Civil Code (BW))
The staff member has the right to inspect their medical file as well as to obtain a copy of their med-ical file. This is a fundamental right; the campus psychologist may not refuse such a request (sub-ject to some exceptions). If the staff member requests a copy of their file, it must be provided free of charge. When it comes to access requests, it is always important to take note of who issued the request. Any persons other than the staff member will not usually be entitled to this information (also see Section 1.6). The staff member may only be refused access to the file or a copy of the file if this is deemed necessary for the protection of the privacy of another person. The interests of the other person must subsequently outweigh the right to inspect/have a copy of the file. Much like the exception stated in (i) regarding the right to delete information, this exception does not occur so readily and if it does, it will hinge on the circumstances of the specific situation.
The right to inspect/have a copy of the file has been expressed in the brochure as follows:
‘As a starting point, you have the right to inspect the file that the campus psychologist has created for you or to obtain a copy of it. You may submit such a request to your campus psy-chologist. The campus psychologist will subsequently process your request as quickly as pos-sible and provide you with a response.’
1.6 Professional confidentiality (Article 7:457 of the Dutch Civil Code (BW))
The campus psychologist is bound by medical confidentiality. This means that any information about the staff member, or inspection of or a copy of information from the file, will not be given to anyone other than the staff member, unless they have given their consent. Medical confidentiality not only extends to ‘specific’ medical information, but also to information that the campus psy-chologist has been given because they were consulted by the staff member (for example, infor-mation that the staff member has imparted about their colleagues and supervisors). Information about the staff member that has been provided by a third party in the context of the counselling process also falls under professional confidentiality. There are also a number of grounds for excep-tion on the basis of which medical confidentiality may be broken. Information may still be shared without consent if there is (a) a legal requirement, (b) a conflict of duties or (c) a severe enough reason (2).
(2) For more information about these grounds for exception, see: KNMG, ‘Dealing with medical information’, KNMG April 2021, p. 18-23.
Professional confidentiality has been expressed in the brochure as follows:
‘The campus psychologist is bound by medical confidentiality. This means that no infor-mation about you or copies of information from your file will be provided to others. Such in-formation will only be provided if a specific exception applies (for example, because you have given your consent).’
2. Requirements pursuant to the Healthcare Quality, Complaints and Disputes Act (WKKGZ)
The Healthcare Quality, Complaints and Disputes Act (WKKGZ) (and the corresponding Implementa-tion Decree) applies to ‘healthcare providers’. In this case, Radboud University is the healthcare provider. This means that the requirements described below rest with Radboud University. This does not alter the fact that complaints and disputes may pertain to the actions or negligence of campus psychologists (or one of these psychologists), which means that Radboud University may involve the campus psychologists in its response to a complaint or dispute that is being handled by the Disputes Committee. For a detailed explanation of the rights and requirements arising from the Healthcare Quality, Complaints and Disputes Act (WKKGZ), please refer to our recommendations from 4 March 2022 and 4 May 2022.
The staff member’s right to complain about the campus psychologist’s actions or negligence on the grounds of the Healthcare Quality, Complaints and Disputes Act (WKKGZ) has been expressed in the brochure as follows:
‘It is always the intention of the campus psychologist to respectfully provide high-quality counselling. Nevertheless, it is possible that you are not satisfied with the work methods or the counselling service. Your campus psychologist invites you to discuss this with them. Your campus psychologist will do their utmost to resolve your complaint. If this does not lead to a satisfactory solution or if you feel that you would rather discuss your complaint with some-one else as soon as possible, you can contact the independent Complaints Officer. The Com-plaints Officer can be contacted for advice on the submission and formulation of complaints and for advice on the subsequent steps that will need to be taken. See the website for more information on our Complaints and Disputes Procedure and the Complaints Officer’s contact details.'
3. Requirements pursuant to the Individual Healthcare Professions Act (BIG Act)
In the course of their work, campus psychologists must exercise the care of prudent caregivers and act in accordance with the responsibility that they bear, which is based on the professional standard and quality standards. This duty of care requires that they exercise the care that a reasonably competent and sensible caregiver would have exercised in the same circumstances. When it comes to the interpretation of the professional standard, both the law and the professional group’s protocols and guidelines must be taken into account, which in this case involves the Code of Professional Ethics for Psychologists (Professional Code). Disciplinary rules and case law play a role in the interpretation of the professional standard and the application of the Professional Code. Among other things, the Individual Healthcare Professions Act (BIG Act) includes the statutory disciplinary law that applies to healthcare psychologists. The disciplinary regulations of the Dutch Association of Psychologists (NIP) apply to both healthcare psychologists and general psychologists. See our recommendation about this from 4 May 2022.
4. Requirements pursuant to the General Data Protection Regulation (GDPR)
The General Data Protection Regulation (GDPR) provides a general framework for the processing of personal data. The GDPR also provides for the various rights of the data subject whose personal data are processed; this includes healthcare data. An example of this is the right to inspect information from Article 15 of the GDPR. This right is different to the right to inspect information from the Medical Treatment Contracts Act (WGBO) (see above).
In this case, Radboud University is also the employer of the staff member who is being counselled by the campus psychologist. For this reason, extra care must be taken when it comes to information about the staff member’s counselling process. As an employer, Radboud University is theoretically prohibited from processing staff members’ healthcare data. This means that this data should not end up in a file in another department, such as Human Resources (HR). Radboud Uni-versity has a Data Protection Officer (DPO) who usually deals with requests that are submitted on the grounds of the GDPR. When it comes to requests that concern a staff member’s personal data and its subsequent processing by the campus psychologists (or one of these psychologists), these requests are handled by the relevant campus psychologist. When the DPO receives such a request, they will forward it to the campus psychologist who is counselling the staff member who made the GDPR request. If the campus psychologist is not able to deal with a request, they may seek advice (legal or otherwise) from another member of staff such as the DPO. It is vital here that as little patient data as possible is shared when advice (legal or otherwise) is sought.