A patient (the data subject) was treated in a hospital

Public Prosecutor's Office at the Supreme Court Date of conclusion 26-08-2022 Date of publication 26-08-2022 Case number 22/01253 Jurisdictions Civil Law Special features - Content indication Cassation in the interest of the law against a decision of the Central Disciplinary Court for Healthcare on the basis of art. 75 BIG Act. Does a patient have the right to inspect the findings of a doctor who has assessed on behalf of (the liability insurer of) the hospital – on the basis of the medical file but without seeing the patient in question – whether the treatment of the patient in question is in accordance with the regulation of art has taken place? Art. 7:464 paragraphs 1 and 2 and art. 7:456 BW, art. 6 and 8 ECHR and art. 15 and 23 GDPR. nl 2022-0541 Enhanced pronunciation Share pronunciation Print Save as PDF Copy link Quote Conclusion ATTORNEY GENERAL AT THE SUPREME COURT OF THE NETHERLANDS Number 22/01253 (CW 2021/269) Session 26 August 2022 CLAIM FOR CASSATION IN THE INTEREST OF THE LAW T.

Hartlief In the business [patient] (hereinafter: 'patient') against [the assessing doctor] (hereinafter: 'the assessing doctor') This case, which comes to your Council in the form of an action for cassation in the interests of the law, mainly relates to the following. The patient was treated in a hospital by a doctor (the attending physician). She took the position that a mistake was made during the treatment and addressed the hospital. On behalf of the hospital's liability insurer, another doctor from another hospital, the assessing doctor, checked, on the basis of the patient's file, whether the treatment had been carried out in accordance with the rules. He has reported his findings (also referred to as 'medical advice'1) to the insurer. The patient tried to obtain access to the medical advice, including through the assessing physician, who refused access. This resulted in a disciplinary complaint from the patient against the assessing doctor, who was declared 'manifestly unfounded' in the first instance.

5 of the Dutch Civil Code (the regulation of the medical treatment agreement). 0122 (hereinafter: 'the contested decision'), the CTG concluded that the assessing physician was not required to provide access to the medical advice. This conclusion is essentially based on the fact that the right of the hospital and the liability insurer “to prepare the defense in freedom and privacy” precludes the application of “the right of inspection” of art. 7:456 and art. 7:464 paragraph 2, opening words and under b, Dutch Civil Code. Against the contested decision, I argue on the basis of Art. 75 of the Individual Health Care Professions Act (hereinafter: 'BIG Act') in the interests of the law. The claim is based on the fact that, although the conclusion reached by the CTG is correct, the CTG reached it in the wrong way. 5 of the Dutch Civil Code and by extension that the conditions for the corresponding application of art.

7:456 BW and for the application of art. 7:464 paragraph 2, opening words and under b, of the Dutch Civil Code are not the same and (ii) both rights of inspection do not apply (correspondingly) in this case. 5 of the Dutch Civil Code. The ground of appeal proposed by me reads as follows: Violation of the law because the CTG in para. 5 up to and including para. 5 of the Dutch Civil Code, in particular Art. 7:446 para. 4, art. 7:464 par. 1 (in conjunction with art. 7:446 par. 2), art. 7:456 and art. 36. I explain the ground of appeal as follows. Content pg. Rnr. 1. 1 2. 1 3. 1 4. 1 A. 1 B. 3 C. 7 D. 38 E. Right of access to the hospital? 41 5. The relevance of art. 1 A. 1 B. The content and operation of art. 3 C. Protection of access to own health data and the required legal framework for medical liability under art. 6 D. 23 6. 1 A. 1 B. 3 C. 4 D. 17 E. 29 F. 36 7. 1 8. 1 9. 1 Does a patient have the right to inspect the findings of a doctor (referred to as 'medical advice') who, on behalf of (the liability insurer of) the hospital – on the basis of the hospital's medical file and without seeing the patient in question – has assessed whether the treatment of the patient in question has taken place in accordance with the rules of the art, and if so, on what grounds?

That is the central legal question in this case. 2 Broadly speaking, this case concerns a field of tension between two interests. On the one hand, it is in the patient's interest to have access to data (and documents) relating to a medical treatment he or she has undergone and a possible medical error. 3 On the other hand, there is the interest of (the liability insurer of) the hospital to arrive at a position in freedom and privacy with regard to the question of whether a medical error has been made for which the hospital is liable, as well as to prepare the defense against a (legal) claim. 3 In practice, this field of tension appears to manifest itself in a significant number of cases in court and out of court. In the meantime, disciplinary and lower courts have ruled on such cases several times. 5 of the Dutch Civil Code ('The agreement regarding medical treatment'). 5 Your Council has ruled in the Waterlandziekenhuis judgment in a case that touches on this field of tension, namely in the context of an incidental claim under art.

6 The cross-appeal was rejected on appeal and your Council upheld that decision. According to your Council, the medical advice as such could not be regarded as personal data, so that the reliance on the Wbp was not valid. The interest of (the liability insurer of) the hospital in an undisturbed exchange of views was not considered. 7 This case law and literature will be discussed further below, where relevant. 4 How should it be determined which interest – the interest of the patient or the interest of the hospital or its liability insurer – is decisive under which circumstances? Although this is a subject that in broad terms cannot be said to have been neglected by the legislator – by way of illustration I refer here to the Care Quality, Complaints and Disputes Act, which came into effect on 1 January 20168 – it is not yet entirely clear. how to settle a dispute such as this one. The fact that there are different eligible schemes is not helpful in this regard.

5 of the Dutch Civil Code and the rights of inspection included therein; (ii) the protection of privacy in art. 5 The subjects under (i) and (iv) were discussed in the contested decision. 5 of the Dutch Civil Code and the access rights included therein are in principle applicable mutatis mutandis in the present case on the basis of a linking provision included in that section, but that this does not apply to the application of those access rights with regard to the medical advice is received, (among other things) in view of the right of the hospital and the insurer “to prepare [their] defense in freedom and privacy”. 5 of the Dutch Civil Code, although in my opinion it has rightly pointed out – albeit in the wrong context – the right to (determination of position and) preparation of the defense in freedom and secrecy, the basis of which I believe can be found in art. 6 paragraph 1 ECHR.

6 Also important in a case like the present are Art. 8 ECHR (the subject under (ii)),13 and the GDPR (the subject under (iii)), even though they were not addressed in the contested decision. As mentioned, much case law on the right to access medical advice as discussed here relates to the Wbp as the predecessor in the Netherlands of the GDPR. I will therefore also discuss these topics. 7 Below I will briefly consider the disciplinary context of the case, as I believe that context is important for a proper understanding of the contested decision (section 2). Then I will discuss the facts and the course of the proceedings (Section 3). 5 of the Civil Code. , which question I answer in the negative (Section 4). Art. 8 ECHR (section 5) and the GDPR (section 6) are discussed next. This is followed by a discussion of the right to take a position and to prepare the defense in freedom and privacy (Section 7).

I conclude with my findings (section 8) and the claim (section 9). 1 The contested decision was reached in a disciplinary case in the health care sector. In total, almost 400,000 professionals in the Netherlands who are registered in the so-called BIG register14 are subject to disciplinary law for health care, so that the social importance of decisions made in that context is not small. 2 The disciplinary judge has a different task and uses a different assessment framework than the civil judge, but the disciplinary judge sometimes also applies civil law rules. The background to this is the following. Art. 15 This standard is not relevant to this case, as the RTG stated in the first instance. construction as the starting point,16 implicitly followed by the CTG in the contested decision. The so-called 'second disciplinary standard' concerns all acts or omissions of the professional practitioner contrary to what befits a proper professional (art.

17 This standard is important for the present case. 19 It is an open standard that can be fleshed out with more specific standards. 5 of the Dutch Civil Code. 3 I would like to make a few further remarks about the procedure in health care disciplinary cases. Cases can be brought by means of a complaint by (a) a directly interested party, (b) the person who has instructed the professional practitioner concerned, (c) the person with whom or the board of an institution where the accused works or for the provision of individual health care is registered or (d) the inspector of the Health Care and Youth Inspectorate (Art. 65 paragraph 1 BIG Act). Disciplinary cases are dealt with in the first instance by one of the three 'regional disciplinary courts', which have been established in Amsterdam, 's-Hertogenbosch and Zwolle since 1 April 2022 (art. 47 paragraph 3, art. 53 paragraph 1 and 54 BIG Act).

4 Appeals against decisions of the regional disciplinary courts can be made on the basis of art. 73 paragraph 1 BIG Act are instituted at the CTG, which is located in The Hague (art. 24 Pursuant to art. 2 The patient has held a hospital and an involved practitioner liable because she believes that a medical error was made during her treatment. In the context of that liability claim, the hospital's liability insurer (hereinafter: 'the insurer') requested the assessing doctor, who was then a gynaecologist in another hospital, to issue a medical opinion on the question of whether lege artis (according to the rules of the art ) has been traded. The assessing doctor has issued an advice to the insurer based on the patient's medical file (hereinafter: 'the medical advice'). 3 The patient's lawyer has requested the insurer for a copy of the medical advice drawn up by the assessing doctor. The insurer has refused to provide a copy.

The insurer's lawyer wrote about this in an email of 2 April 2019 to the patient's lawyer: “I was indeed medically informed by [the assessing doctor] in the investigation into liability. However, his advice is not available for external use and I will not give you access to it. It is our company's policy not to provide access to medical advice/information obtained as part of the liability assessment. 4 Later, the patient herself requested the assessing doctor to inspect the medical advice he had drawn up. The lawyer of the insurer has informed the lawyer of the patient by e-mail of 2 May 2019 on behalf of the assessing doctor that the medical advice is not available for inspection. 5 The patient subsequently filed a complaint against the assessing physician with the Regional Disciplinary Court for Healthcare in Eindhoven (hereinafter: 'the RTG'). 27 The RTG motivated its decision as follows, whereby the patient is referred to as the 'complainant' and the assessing physician as the 'defendant': “Substantive review The question at issue is whether the defendant has acted culpably in a disciplinary manner by not allowing the complainant to inspect his medical advice drawn up for his client, the insurer.

The complainant is of the opinion that the respondent should have allowed her access under Article 7:456 of the Dutch Civil Code jo. article 7:464 paragraph 1 of the Dutch Civil Code. Article 7:456 of the Dutch Civil Code provides that a care provider provides a patient, upon request, with access to and a copy of the data from the file. This article applies if there is a treatment relationship. As stated, there is (or has not been) a treatment relationship between the complainant and the defendant. According to Article 7:464 paragraph 1 of the Dutch Civil Code, Article 7:456 of the Dutch Civil Code also applies if medical procedures are performed in the exercise of a medical profession or business other than pursuant to a treatment agreement, insofar as the nature of the legal relationship not oppose it. It is common ground that the defendant did not assess the complainant itself. Defendant has stated without being contradicted that his medical advice did not relate to assessing the complainant's state of health, but to the question of whether lege artis had acted by the practitioner concerned.

According to the defendant, he was asked to prepare an advice for internal use by his client, the insurer, in the context of the assessment of the liability claim. The college considers as follows. Insofar as the medical advice by the respondent can already be regarded as an act in the field of medicine (on the basis of which Article 7:464 paragraph 1 of the Dutch Civil Code would apply), the Board finds that the nature of the legal relationship precludes the applicability of Article 7:456 BW (article about the inspection) because of the following. The hospital and by extension its insurer have the right to engage a party expert (here: defendant) in the context of the liability claim. Each party has its own right to prepare its defense in freedom and privacy. This right would be affected if there were an obligation to make public (read: granting access to) correspondence and (medical) advice.

By refusing to allow the complainant to inspect the advice he had drawn up for his client, the insurer, the defendant did not therefore act in a disciplinary manner. 6 The complainant lodged an appeal with the CTG against the decision of the RTG. In the contested decision of 29 January 2021, the CTG dismissed the appeal. In so far as is relevant, it has based this on the following. 7 First of all, the CTG has ruled that the relationship between the patient and the assessing physician, in view of art. 5 The complainant argues on appeal that the right of inspection applies on the basis of Article 7:464 paragraph 2 in conjunction with 7:446 paragraph 4 of the Dutch Civil Code (BW) or on the basis of Article 7:464 paragraph 1 of the Dutch Civil Code in conjunction with 7:456 of the Dutch Civil Code. The Central Disciplinary Court states first and foremost that the gynecologist has studied the complainant's medical file in order to be able to draw up his medical advice.

In the context of the complainant's liability, the gynecologist was asked whether the hospital had acted in the empty artis. Since the gynecologist has analyzed the complainant's medical file on behalf of the hospital's insurer, in which he has made an assessment of the complainant's medical supervision during her pregnancy, it follows from Article 7:446 paragraph 4 of the Dutch Civil Code that the relationship between the gynecologist and the complainant cannot be qualified as a treatment agreement. 8 This follows, at the end of para. 5: “The acts referred to in art. 9 The CTG then examined the question of whether art. 5 of the Dutch Civil Code apply (correspondingly) to the relationship between the patient and the assessing physician. 5 of the Dutch Civil Code, A-G] to various situations that are not based on a treatment agreement. According to article 7:464 paragraph 1 of the Dutch Civil Code, the right of inspection applies if medical procedures are performed in the exercise of a medical profession or business other than pursuant to a treatment agreement, insofar as the nature of the legal relationship does not preclude this.

This may mean that not all provisions of the Wgbo apply in full in the event of unilateral medical advice drawn up at the request of the insurer in the context of a liability claim. Like the Regional Disciplinary Court, the Central Disciplinary Court is of the opinion that the nature of the legal relationship precludes the applicability of the complainant's right of access and considers the following in this regard. 7 It is established that the gynecologist did not assess the complainant herself. The hospital's insurer has asked the gynaecologist to use the complainant's medical file to assess whether the practitioner concerned had acted lege artis. On the basis of that advice, the hospital took a position on liability and communicated it to the complainant (or his authorized representatives). The hospital and by extension the insurer have the right to engage a party expert (here: the gynaecologist) in the context of a liability claim.

In the opinion of the Central Disciplinary Court, a duty to allow the other party to inspect the medical advice of such a party expert also infringes the right of a party to the proceedings to prepare the defense in freedom and privacy. The Central Disciplinary Court ignores the claim made by the complainant on appeal that the right to prepare the defense in freedom and privacy has not been violated, because the insurer itself informed the complainant that medical advice was obtained from the gynaecologist. The mere announcement that and from whom medical advice has been obtained does not mean that (the content of) the medical advice has also been made known to the outside world, nor must it be made public. 8 The foregoing means that the Regional Disciplinary Court has rightly ruled that the gynaecologist, in refusing to allow the complainant to inspect the advice he had drawn up for his client, was not culpable under disciplinary law.

10 The contested decision was brought to the attention of the Cassation Committee in the interests of the law, which advised the Prosecutor General at the Supreme Court to file an appeal in cassation in the interests of the law against the contested decision. 5 of the Civil Code A. 5 of the Dutch Civil Code in the passages of the contested decision cited above. 5 of the Civil Code (Section B). 5 of the Dutch Civil Code. is entitled to inspect the medical advice (section D). 5 of the Civil Code gives the patient the right to inspect the medical advice vis-à-vis the hospital (section E). The answer to this question, in my view, is negative. B. 3 dept. 5 of the Dutch Civil Code is entitled 'The agreement regarding medical treatment'. 7 of the Dutch Civil Code (Assignment) makes it clear that a medical treatment agreement is a special type of assignment agreement. 5 BW is not deviated from.

30Dept. 5 The Dutch Civil Code does not contain an integral regulation of health (private) law by any means. 31 In addition to the Civil Code – and the aforementioned BIG Act – other regulations will often also be relevant. By way of illustration and without claiming to be complete, I refer to the Healthcare Quality, Complaints and Disputes Act, the Additional Provisions for the Processing of Personal Data in Healthcare Act and the Medical Examinations Act, the first two of which will be discussed later. 5 dept. 5 of the Dutch Civil Code relates to the 'medical treatment agreement', but on closer inspection it appears that its scope is broader than the elements 'medical treatment' and 'agreement' suggest. 32 Div. 5 The Dutch Civil Code also has a number of provisions that, in short, have been written for medical examinations and which do not apply to medical treatment agreements. 5 of the Civil Code, which will be discussed below in the analysis of the contested decision: (i) the regime for medical treatment contracts, as delineated by art.

7:446 paragraph 1 Dutch Civil Code; (ii) the regime for acts to which the regime referred to under (i) applies mutatis mutandis in whole or in part pursuant to art. 7:464 paragraph 1 Dutch Civil Code; and (iii) the regime for, in short, medical examinations (Article 7:446 paragraph 4 in conjunction with Article 7:464 paragraph 2 of the Dutch Civil Code). C. An analysis of the contested decision Principles with regard to the applicable regime (para. 7 The CTG has in para. 5 taken the complaint as the starting point. The patient argued that she had the right to inspect the medical advice on the basis of: (a) art. 7:446 paragraph 4 in connection with art. 7:464 paragraph 2 of the Dutch Civil Code and/or (b) the link provision in art. 7:464 paragraph 1 in connection with art. 7:456 BW. 6. The CTG has in para. 5 further ruled that the relationship between the patient and the assessing physician cannot be regarded as a medical treatment agreement as referred to in art.

7:446 paragraph 1 of the Dutch Civil Code (regime (i)). According to the CTG, the reason for this is that in this case art. 7:446 paragraph 4 of the Dutch Civil Code applies. 8 I'll start with this last topic. Indeed, as the CTG has ruled, a medical treatment agreement is not at issue in the present case. In my opinion, this already follows from art. 7:446 paragraphs 1 and 2 of the Dutch Civil Code, which must be read in conjunction with each other: “1 The agreement regarding medical treatment (…) is the agreement whereby a natural person or a legal person, the care provider, undertakes vis-à-vis another person, the client, in the exercise of a medical profession or business, to perform acts in the field of of medicine, directly related to the person of the client or of a specific third party. (…) 2 Acts in the field of medicine are understood to mean: a. all operations - including examinations and counseling - directly related to a person and with the aim of curing him of a disease, protecting him from the development of a disease or assessing his state of health, or this obstetrician to provide assistance; b.

9 To the group of care providers who practice a medical profession or business as referred to in art. 36 The term 'caregiver' is therefore somewhat unfortunate. This term is sometimes used in (disciplinary) case law and legal literature for the individual healthcare professional, such as the doctor, who treats a patient, regardless of whether he is the contractor. 37 Accuracy is nevertheless important here, because in current practice the care provider within the meaning of art. " The term 'actions in the field of medicine' is defined in the aforementioned art. 7:446 paragraph 2 of the Dutch Civil Code, which consists of two parts. The first part, art. ”39 prevent the onset of an illness or assess his/her state of health, or provide this obstetrical assistance. 40 Such actions are not always performed by a doctor. 43 The case under discussion here does not fall within this category. Studying a medical file, assessing whether the rules of art have been acted upon and drawing up medical advice in response to this are not traditionally considered to be part of the art of medicine.

I would also like to point out that this is not a question of assessing the patient's state of health, but of the course of events during a previous treatment. 11 Offers the second part, art. 7:446 paragraph 2, opening words and under b, BW, then solace? ”45 This tempers expectations somewhat. 47 This concerns cases that, as far as the relationship between doctor and 'treated person' is concerned, resemble a medical treatment. Whether a doctor acts in the capacity of a doctor will in most cases not be a matter of doubt. For example, a doctor who removes a kidney from a donor will obviously do so in the capacity of a doctor. However, not all acts performed by a doctor in their capacity fall under the acts intended by the legislature according to the foregoing. e. a doctor) is not regarded as an act as referred to in art. 12 In my view, the case at issue here does not fall under Art. 7:446 paragraph 2, opening words and under b, Dutch Civil Code.

The medical opinion, although prepared by a doctor in that capacity, concerns whether a treatment has been carried out according to the rules of art, so that the doctor in question contributes nothing to the health of the patient or of another (such as the would be the case with a donation). The advice relates to the actions of another doctor and therefore only indirectly to the patient. After all, the medical advice was also established on the basis of the study of a medical file, without the doctor in question having seen the patient and without the patient being involved in the investigation in any other way. Such a state of affairs is so far removed from medical treatment that, in my opinion, an equation with it cannot be justified. 13 Another condition for the existence of a medical treatment agreement is that the act for which the order is given relates directly to the person of the client or of a specific third party, the patient.

This criterion is expressed in both art. 7:446 paragraph 1 as in art. 7:446 paragraph 2 of the Dutch Civil Code. What does "directly relate to a person" mean? 49 This is a difficult criterion. Typical are those cases where, for example, a doctor sees and treats a patient. The individual orientation is then beyond doubt. 14 In my view, the study of the medical file and the preparation of the medical advice as to whether the treatment has been carried out according to the rules of art, while the patient is not seen by the assessing doctor, does not directly relate to the person of the patient. In contrast, it relates to an assessment of the course of events in a previous treatment for the purpose of settling a claim. This criterion is therefore also an obstacle for the qualification of the relationship between the patient and the assessing physician as a medical treatment agreement. 15 The CTG had in para.

5 can therefore simply conclude that a medical treatment agreement is not applicable in the light of the application conditions of art. 7:446 paragraphs 1 and 2 of the Dutch Civil Code. 16 However, the CTG has ruled that art. 7:446 paragraph 4 of the Dutch Civil Code ensures that the relationship between the patient and the assessing physician cannot be regarded as a medical treatment agreement. In my view that is incorrect, because Art. 7:446 paragraph 4 of the Dutch Civil Code does not apply here. Because the applicability of this provision, in connection with art. 7:464 paragraph 2 of the Dutch Civil Code, is a central theme in this case, I will go into this in more detail. 17 Art. 18 Textually, on a superficial reading, it can be argued that this provision applies to the present case. ) may even give the impression that the provision is pre-eminently written for a case such as the present one.

19 Is the legislative history taken into account and is art. 7:446 paragraph 4 of the Dutch Civil Code subjected to a careful reading, then in my opinion the picture tilts. e. medical examinations that take place on behalf of someone other than the examinee, while medical examinations on behalf of the examinee do fall under that. 55 In the literature, art. 58 On such medical examinations – on the basis of art. 59 An example is the standard of good care providership in art. 60 In summary, art. 7:446 paragraph 4 of the Dutch Civil Code therefore leads to a more flexible regime for medical examinations on behalf of someone other than the examinee than for medical treatments. The special rules of art. 7:464 paragraph 2 of the Dutch Civil Code provide for a different (shorter) retention period with regard to the medical data, a right of inspection of the examinee and (under further conditions) a blocking right of the examinee.

on art. 7:464 paragraph 2 of the Dutch Civil Code I will go into further. 20 The case at issue in this case has little to do with a medical examination and medical treatment, so that the application of art. 7:446 paragraph 4 of the Dutch Civil Code is not obvious to the ratio thereof. The text of art. 7:446 paragraph 4 of the Dutch Civil Code can be reconciled with this conclusion on further reading. It must be an “assessment of the state of health or medical supervision of a person”. There is obviously no question of medical supervision. 61 assessment has not been seen and no cooperation has been provided – apart from any permission required in the context of privacy regulations – is significant in this regard. It concerns a 'paper exercise' that took place without the patient's control and which is more reminiscent of, for example, a legal assessment than a medical examination. In my opinion, this will not change if the patient's state of health is also the subject of the advice, for example with regard to the question of whether there is an injury that is causally related to a possible medical error.

21 In my view, it would be different if, in the context of the assessment, not only a medical file is studied, but also the patient is seen. In such a case, the decisive factor is that the patient cooperates with the medical assessment and that new data is collected about his or her state of health, so that it is obvious that the patient enjoys the same protection as with a 'real' medical examination. This is supported by the case law of your Council with regard to art. 7:464 paragraph 2 of the Dutch Civil Code, which – of course – only applies if art. 7:446 paragraph 4 of the Dutch Civil Code applies. In various rulings, your Council has taken as its point of departure that art. 63 In 2007, your Council considered – also in response to an appeal in cassation in the interests of the law – in a case in which doctors had acted as arbitrators and in that context had physically examined someone that “the party who submits to a medical examination will in principle subsequently be allowed to invoke the right of inspection and blocking of art.

”64 The right of inspection was not an issue in those cases; it revolved around the blocking right. 22 In view of the foregoing, the CTG incorrectly held in the contested decision that Art. 7:446 paragraph 4 of the Dutch Civil Code applies. His art. 7:456 and art. 7:464 paragraph 2 of the Dutch Civil Code applies in principle? (para. 23 After the CTG became aware of art. 7:446 paragraph 4 of the Dutch Civil Code, in the final sentence of para. 5 ruled that on “such acts” (as I understand it: acts as referred to in art. 7:446 paragraph 4 of the Dutch Civil Code) in principle art. 7:456 and art. 7:464 paragraph 2 of the Dutch Civil Code apply. 24 This judgment is also partly incorrect. A look at the system of the law shows that the applicability of art. 7:446 paragraph 4 of the Dutch Civil Code does not entail that art. 7:456 Dutch Civil Code (in principle) applies. On the contrary, that provision does not apply in principle, because it is part of the regime for medical treatment contracts, while Art.

7:446 paragraph 4 of the Dutch Civil Code specifically concerns cases to which – as is apparent from the text of that provision – that regime does not, in principle, apply. Only the switching provision in art. 7:464 paragraph 1 of the Dutch Civil Code may entail otherwise under certain circumstances, but the CTG is only aware of this in par. 6 arrived. The distinction between and the application of art. 7:464 paragraph 1 and art. 7:464 paragraph 2 of the Dutch Civil Code (para. 25 That brings me to Rv. 6. 5 of the Dutch Civil Code, A-G] [has been] extended to various situations that are not based on a treatment agreement. 26 Art. 7:464 BW reads as follows: “1 If medical procedures are performed in the exercise of a medical profession or business other than pursuant to a treatment agreement, this Section as well as Articles 404, 405 paragraph 2 and 406 of Section 1 of this Title shall apply mutatis mutandis to insofar as the nature of the legal relationship does not dictate otherwise.

2 If it concerns acts as described in article 446 paragraph 4, then: a. the data referred to in Article 454 will only be kept for as long as this is necessary in connection with the purpose of the investigation, unless the provisions of or pursuant to the law preclude destruction; b. the person to whom the investigation relates is given the opportunity to state whether he wishes to be informed of the results and the conclusions of the investigation. 27 Art. 31. Art. 7:464 paragraph 2, opening words and under a, of the Dutch Civil Code provides for a different retention period. This provision is not of particular relevance to this case. More important is art. 65 The examiner must first of all be given the opportunity to state whether he has accepted the result and the conclusions of the inspection. (as the first) wishes to know, from which it follows that he may actually learn of that result and conclusion.

This is sometimes referred to as the 'right to information'66 or the 'right of inspection'67. However, this is a different right of access than the right of access in art. 52. If the examiner has expressed the wish to be informed of the result, then the examiner has a so-called 'blocking right' under certain circumstances, with which he can prevent the data concerned from being made available to third parties (including the client). 28 What is the relationship between the two paragraphs of art. 7:464 CC? Contrary to what the wording of the preamble of paragraph 2 suggests with the words “Concerns (…)”, paragraphs 1 and 2 form separate circuits. 19: with art. 7:446 paragraph 4 in connection with art. 7:464 paragraph 2 of the Dutch Civil Code, it is intended to exclude certain types of cases from the regime for medical treatment agreements and to create some special rules for this, possibly supplemented by the corresponding application on the basis of art.

7:464 paragraph 1 of the Dutch Civil Code of provisions that have been written for the medical treatment agreements. 29 Your Council ruled in 2004, in line with the aforementioned legislative history, that the applicability of art. 7:464 paragraph 2 does not depend on the applicability of art. 7:464 paragraph 1 Dutch Civil Code: “Art. According to the legislative history, 7:464 paragraph 2 of the Dutch Civil Code is intended as a specific regulation with regard to inspections performed on behalf of someone other than the examiner. Particularly in this light, there is no ground for this, in its original form by memorandum of amendment of 22 July 1991 as second paragraph to art. 25, paragraphs 1 and 2 must therefore be clearly distinguished. They each have their own application and are not interdependent. 30 That the CTG actually misjudged this is apparent from what the CTG in para. 6 otherwise considers and judges.

The CTG has only paid attention to the application conditions of art. 7:464 paragraph 1 and has no longer discussed art. 7:464 paragraph 2 of the Dutch Civil Code. It has considered that “[according to] Section 7:464(1) of the Dutch Civil Code (…) the right of inspection applies if medical procedures are performed in the exercise of a medical profession or business other than pursuant to a treatment agreement. ” With “the right of inspection”, the CTG apparently has both the right of inspection as referred to in art. 7:456 if it is in art. 7:464 paragraph 2, opening words and under b, of the Dutch Civil Code, envisaged an implicit right of inspection. The CTG therefore erroneously assumed that the latter right of inspection is subject to the clause at the end of art. 7:464 paragraph 1 Dutch Civil Code (“insofar as the nature of the legal relationship does not preclude this”). 31 In my opinion, the CTG also respects the content of art.

7:464 paragraph 1 BW misunderstood. in r. 6 it is decided that the CTG is of the opinion that art. 7:464 paragraph 1 of the Dutch Civil Code applies in this case, although it has not paid attention to the application conditions of that provision. In my view, those conditions of application have not been met. According to the legislative history, art. 72Art. 7:464 paragraph 1 of the Dutch Civil Code is, according to the text thereof, only applicable if 'actions in the field of medicine' are performed, as referred to in art. 12 inclusive. 75 Nowadays, this includes medical examinations for indications for care under the Social Support Act 2015, the Long-term Care Act or the Youth Act. The CTG has not explicitly ruled on the question of whether the actions at issue in the present case – studying a medical file to assess whether a treatment has been carried out according to the rules of the art, without seeing the patient – can be carried out.

regarded as 'actions in the field of medicine' as referred to in art. 7:446 paragraph 2 of the Dutch Civil Code. 12 that I am of the opinion that the answer to this question is in the negative. This means that, contrary to what the CTG has believed, art. 7:464 paragraph 1 of the Dutch Civil Code does not apply. Does the right to establish a position and prepare the defense in freedom and privacy prevent the applicability of the right of access? (para. 32 Art. 5 of the Dutch Civil Code to a legal relationship insofar as the nature of the legal relationship does not preclude this. 33 Assuming that art. 7:464 paragraph 1 of the Dutch Civil Code applies and the fate of this case decides, the CTG has ruled in par. 7 assessed whether the nature of the legal relationship in the present case precludes the application of “the right of inspection”. In the closing sentence of Rev. 6 it is stated that the CTG "is of the opinion that the nature of the legal relationship precludes the applicability of the complainant's right of access".

in r. 7, the CTG adds the following: “It is certain that the gynecologist did not assess the complainant herself. The hospital's insurer has asked the gynaecologist to use the complainant's medical file to assess whether the practitioner concerned had acted lege artis. On the basis of that advice, the hospital took a position on liability and communicated it to the complainant (or his authorized representatives). The hospital and by extension the insurer have the right to engage a party expert (here: the gynaecologist) in the context of a liability claim. In the opinion of the Central Disciplinary Court, a duty to allow the other party to inspect the medical advice of such a party expert also infringes the right of a party to the proceedings to prepare the defense in freedom and privacy. The Central Disciplinary Court ignores the claim made by the complainant on appeal that the right to prepare the defense in freedom and privacy has not been violated, because the insurer itself informed the complainant that medical advice was obtained from the gynaecologist.

34 Ignoring the legal text, let me state that I have great sympathy for this judgment. Indeed: this concerns medical advice drawn up on the basis of the medical file for the benefit of the insurer, who can determine a position on that basis. It must be possible to do this without the patient 'watching'. This also seems to be the dominant view in disciplinary courts and lower courts, in which indeed often reference is made to a right to (determination of position and) preparation of the defense in freedom and privacy, a '(right to) undisturbed exchange of views' or words to the same effect. ) and whether it can prevent access in a case like this. I will save that subject for section 7. Here I first focus on the question whether the way in which the CTG has taken into account that right – assuming that it exists – in its decision is correct. 35 With the legal text included, the judgment quoted above is less easy to follow.

The CTG has followed the in art. 7:464 paragraph 1 of the Dutch Civil Code referred to “nature of the legal relationship”. 31 too much. Art. 7:464 paragraph 1 of the Dutch Civil Code assumes that a legal relationship exists between two or more (legal) persons, whereby at least one acts in the exercise of a medical profession or business. 31 it became clear that this does not have to be a legal relationship under private law and that a legal relationship under public law also qualifies. It is now conceivable that such a legal relationship is of such a nature that not all provisions that apply to medical treatment agreements lend themselves to mutatis mutandis. What can be considered? 79 Art. 5 BW aimed at 'civil society' are suitable for full application, now the health status of soldiers influences the (joint) performance of tasks in abnormal circumstances. Thus the in art. 7:448 Dutch Civil Code, the obligation to provide information may not always be met and the patient's control over treatments is more limited.

The nature of the legal relationship is therefore important here. 36 What about the present case? What does the right to (determination of position and) preparation of the defense in freedom and privacy have to do with the nature of the 'legal relationship' between the patient and the assessing physician? I think the answer is: nothing. It escapes me what 'legal relationship' should exist between the patient and the assessing physician and what the nature of this is. It also escapes me why a right of the insurer would influence the nature of that legal relationship. The CTG's reasoning that the right of the hospital and the insurer to prepare the defense in freedom and privacy means that the nature of the legal relationship precludes the application of 'the right of inspection' in this task is therefore incorrect. 37 Could the right of the hospital and the insurer to prepare the defense in freedom and privacy in another way play a role in the reasoning of the CTG?

An answer to this question is not necessary here, but may be useful. 5 of the Dutch Civil Code would, in principle, entail that the patient has the right to inspect the medical advice vis-à-vis the assessing physician, then the right of the hospital and the insurer to prepare the defense in freedom and privacy I think lead to a different outcome. If it is assumed, as I argue in paragraph 7, that the latter right is enshrined in art. 6 paragraph 1 ECHR, then the right in the light of art. 81 D. 38 This brings me to an intermediate conclusion. 5 of the Dutch Civil Code: (i) the regime for medical treatment agreements, as delineated by art. 7:446 paragraph 1 Dutch Civil Code; (ii) the regime for acts to which the regime referred to under (i) applies mutatis mutandis in whole or in part pursuant to art. 7:464 paragraph 1 of the Dutch Civil Code and (iii) the regime for, in short, medical examinations (Article 7:446 paragraph 4 in conjunction with Article 7:464 paragraph 2 of the Dutch Civil Code).

5 of the Dutch Civil Code. right to inspect the medical advice. I summarize my findings: - regime (i) does not apply, because the actions of the assessing physician – the assessment of the medical file to answer the question whether a treatment has been carried out in accordance with the rules of the art and the preparation of the medical advice – are not “acts in the field of medicine directly related to the person of the client or of a specific third party” as referred to in art. 14 inclusive); - regime (ii) does not apply, because the actions of the assessing physician are not “actions in the field of medicine” as referred to in art. 31); and - regime (iii) does not apply, because (a) this regime relates to medical examinations on behalf of a person other than the examinee and in a case such as the present - where the doctor does not see the person concerned - is not in life and (b) the actions of the assessing physician do not constitute an “assessment of the state of health or medical supervision of a person” as referred to in art.

20). 5 of the Dutch Civil Code, so that the CTG did not have to pay attention to it. spend. 40 I could suffice with these findings. However, there are good reasons to discuss a few more topics. 5 of the Civil Code, while this concerned the relationship between the patient and the assessing physician, is indeed important in the relationship between the patient and the hospital, also with regard to the answer to the question whether the patient is entitled has access to the medical advice. Although the relationship between the patient and the hospital is not the subject of the contested decision, for the sake of completeness, I will nevertheless discuss below the question whether the patient could request access from the hospital. Furthermore, in the introduction I already referred to art. 8 ECHR and the GDPR. In my view, they cannot be left untouched. Art. 8 ECHR is important for the legal position of patients, also when it comes to obtaining information.

3 above). I therefore pay attention to art. 8 ECHR and in paragraph 6 of the GDPR. 5 of the Dutch Civil Code is therefore not obvious. If art. 8 ECHR and/or the AVG would have given a patient the right to inspect, then the CTG may have had to arrive at a different outcome. With the discussion of art. 2 between the interest of patients in access and that of the hospital and/or its liability insurer in the case of privacy is brought up again. The question is whether the latter interest is recognized in the law. In other words: does the right to take a position and to prepare the defense exist in freedom and privacy and what is its basis? I will focus on this question in section 7. E. Right of access to the hospital? 5 of the Civil Code gives the patient the right to inspect the medical advice vis-à-vis the assessing physician. 5 of the Dutch Civil Code. As mentioned, it is useful to also discuss this question.

In doing so, I assume that a medical treatment agreement as referred to in art. 7:446 paragraph 1 of the Dutch Civil Code exists. 6. In addition, I assume that the medical advice has been shared with the hospital. 42 To answer this question – whether the patient has a right to inspect the medical advice vis-à-vis the hospital – the right of inspection of art. 7:456 BW important. That provision reads as follows: “The care provider [in this case the hospital, A-G] provides the patient with access to and a copy of the data from the file upon request. 43 This provision was adapted in 2018 to the GDPR83 and builds on it, as will become clear below. In addition, the Additional Provisions for the Processing of Personal Data in Healthcare (hereinafter: 'Wabvpz') and the Healthcare Quality, Complaints and Disputes Act (hereinafter: 'Wkkgz') are important for the finer points of the in art. 7:456 BW regulated right of inspection, as will also become apparent below.

44 The phrase “inspection and copy of” in art. 7:456 BW makes it clear that in principle the patient may choose (a) to view the file (on location) or (b) to request copies of documents, or both. Pursuant to art. 15d paragraph 1 Wabvpz, since 1 July 202085, the inspection and/or the copy must, in short, be granted or provided electronically, if the patient so requests. The right of inspection applies almost categorically. 86 According to art. 7:456, second sentence, Dutch Civil Code, the provision of access to and/or copies of the data is not provided insofar as this is necessary in the interest of protecting the privacy of another person. This doesn't seem to happen often. 87 Exceptions of this nature are not relevant in this case. 45 Art. 88 It is assumed that inspection and copies will be “immediately and in any event within one month of receipt of the request” as referred to in art. 12 para.

89 Art. 92 Only if “requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive nature” may a “reasonable fee” be charged, as is apparent from art. 12, paragraph 5, opening words and under a, in conjunction with art. 15 GDPR. 93 Art. 15d paragraph 3 of the Wabvpz provide for a right to free electronic provision of inspection or copy. 46 The right of inspection of art. 7:456 BW relates to the medical file. Important questions that arise here are what the medical file is exactly and whether a medical advice such as the one at issue in this case is part of it. 47 Art. 7:454 paragraph 1 of the Dutch Civil Code contains the so-called file obligation: “The care provider sets up a file regarding the treatment of the patient. He shall keep a note in the file of the data concerning the patient's health and the procedures performed with regard to him and shall include other data therein, insofar as this is necessary for proper care for the patient.

48 The file obligation serves several purposes. 95 This is already implied in the text of art. 96 The healthcare professionals involved – who rarely work alone – must know a patient's history . 49 What does the medical file consist of? ”101It is therefore about the nature of the data, irrespective of how it is collected and managed. What is in a paper file folder is therefore not necessarily decisive. 50 In light of the foregoing, which types of data belong to the medical record and which do not? 110 In addition, a written record of the patient's consent for procedures of a major nature (see art. 111 Statements from the patient can also be part of the medical file (see art. 114 The argument that, according to the legal history, underlies the choice to separate these notes from the medical file, is the following: “In practice, care providers [meaning the practitioners here, A-G] usually make work notes, in addition to the notes of the medical data about the patient necessary for proper care, which serve as a memory aid for their own thoughts.

These so-called personal work notes are not about recording data, but about impressions, suspicions or questions that the care provider [the practitioner, A-G] has. 116 As soon as personal work notes are shared, it can be assumed that this is apparently necessary for proper care to the patient. 117 Although the notes in question still represent “impressions, suspicions or questions”, the Minister and State Secretary wanted to make a distinction between such 'subjective' data and 'objective' data. ”119 'FONA' stands for errors, accidents and near-accidents. 121 This terminology is used in the context of quality and safety monitoring within a hospital, the in art. 124 Therefore, according to art. 125 (iv) Although the aforementioned incident reports are in principle not part of the medical file, since the introduction of the Wkkgz on 1 January 2016, incidents must also be reported in the medical file if they have or could have noticeable consequences for the patient's health.

126 Art. ” (v) Consulting financial information relating to the legal relationship between a specialist medical company and/or the hospital on the one hand and a health insurer on the other is not necessary for proper assistance to the patient. 51 In my opinion, it follows from the foregoing that medical advice such as that at issue in this case will not form part of the medical file. Such medical advice is not drawn up in the context of the treatment and is not necessary for proper care to the patient. 50 under (i) – such as reports of conversations with the patient, reports regarding the procedures performed, nursing data, administered medication, etc. 50 under (iii) that relate to incident reports, which in principle do not belong to the medical file. The aforementioned art. In my opinion, 10 paragraph 3, first sentence, Wkkgz cannot entail that a medical advice such as the present one must be added to the medical file.

50 under (v), which does not form part of the medical file, in the sense that even in the case of medical advice such as the present, it largely revolves around the legal position and the financial position of the hospital and not (directly) because of the care provided. 5 of the Dutch Civil Code does not entitle a patient to inspect the medical advice in a case such as the present one with regard to the hospital. This concludes the discussion of this section. 5 of the Civil Code is sufficient for the assessment of the contested decision, but it is not sufficient for a full understanding of the subject matter of the present case and similar cases. As mentioned, Art. 8 ECHR and the right of access under the GDPR is of great importance. 5 The relevance of art. 8 ECHR for access to health data A. 1 As I noted, Art. 8 ECHR important for the legal position of patients vis-à-vis (among other things) the hospital, also when it comes to obtaining information.

Art. 8 ECHR is also important for the way in which the right of access included in the GDPR should be interpreted, as I discuss in paragraph 6. Therefore, a discussion of art. 8 ECHR and its significance for cases such as the present are useful. 2 I will first make some general remarks about the content and operation of art. 8 ECHR (section B). After that, I will discuss the provisions laid down in art. 8 ECHR protection of access to own health data and the protection provided by art. 8 ECHR required “legal framework for medical liability”, where I discuss what this protection means in the context of the present case (Section C). I close with an interim conclusion (section D). The conclusion is that art. 8 ECHR in a case where the present case does not require the right to inspect the medical advice. B. The content and operation of art. 3 Although it is a well-known provision, it is nevertheless useful to read the text of Art.

8 ECHR to take a closer look. This provision reads – in the authentic English text – as follows: “1 Everyone has the right to respect for his private and family life, his home and his correspondence. 4 The first paragraph has been interpreted more broadly over the years. To begin with, the words “private and family life” should not be construed narrowly. 132 Recognizing a positive obligation is a step towards (indirect) horizontal effect of ECHR rights. A positive obligation may mean that guarantees in objective law are required from the government in the relationship between citizens, after which it is a relatively small step for the court to consider the 'correct' legal rules to be present in the relationship between citizens. 133 It is therefore not art. 8 ECHR itself, but the art. 8 ECHR required a rule of law, which operates horizontally. 5 A limitation of the in art. 8 paragraph 1 ECHR is possible under certain conditions on the basis of art.

8 paragraph 2 ECHR. 135 Secondly, the limitation must be necessary in a democratic society (“necessary in a democratic society”). 136Art. 8 paragraph 2 ECHR mentions points of reference in this regard, which presumably include every legitimate need: “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. The element of 'democratic society' is vaguer. 140 The margin-of-appreciation doctrine therefore in no way entails that the national court should exercise restraint when it comes to reviewing legislation against the ECHR. 141 C. Protection of access to own health data and the required legal framework for medical liability under art. 6 What meaning does art. 8 ECHR possibly for the present case and similar cases? To begin with, it follows from ECtHR case law that information relating to a person's health by definition affects his private life as referred to in art.

142 This not only means that the confidentiality of that information must be protected, but also that the data subject must, under certain circumstances, be able to inspect those data,143 as will become clear below. However, ECtHR case law goes further: if someone has been the victim of a medical malpractice, (national) law must provide a legal framework to enable the victim to hold the responsible party liable and obtain compensation. The protection required in that regard could also include the possibility of accessing certain information. Below I will discuss these topics in relation to each other on the basis of the relevant ECtHR case law. Some statements are discussed in more detail than others. 7 Health information touches on the core of the information in art. 144 The case law with regard to art. 8 ECHR assumes, as will be shown below, that those involved must be able to know how health information is used, which may also be important for the subject matter of this case.

e. the medical file, and therefore its study by the assessing doctor and the preparation of the medical advice touches on the scope of Art. 8 paragraph 1 ECHR referred to private life. 8 Whether this means that the patient must be able to view the medical advice is another question. In my view, this question must be answered in the negative, as will become apparent below, now that (i) Art. 8 paragraph 1 ECHR in a case such as the present does not require a right of access and (ii) even if this were otherwise, the interest (or possibly: right) of the hospital and the insurer to determine a position in freedom and privacy and to prepare the defence, a limitation of the patient's right in accordance with art. 8 paragraph 2 ECHR can justify. The subject under (i) is discussed below; the subject under (ii) in paragraph 7. H . 149 Uslu was examined as a prisoner by a doctor in the prison clinic.

The doctor noted in the clinic's records that Uslu was suffering from tension headaches and decided to refer Uslu to a hospital's neurology department. In the meantime, Uslu applied to the judge to obtain copies of the report of the doctor who examined him in the prison clinic and of the relevant pages of the aforementioned records. The judge granted that request, but after an appeal by the prosecutor, the request was still rejected. 11 The ECtHR ruled as follows: “22. The Court considers that personal information relating to a patient undoubtedly belongs to his or her private life and, as such, the question of that individual's access thereto falls within the ambition of Article 8 (…). Indeed, this has not been contested by the parties. (…) 25. The Court accepts that the applicant had an interest in obtaining a copy of the report issued by the prison doctor following his visit, as well as the relevant registry page regarding his admission to the prison clinic so that he could be properly involved in the choice of the medical care to be provided.

26. The Court observes that the applicant – a detainee – was refused a copy of the doctor’s report issued after his medical examination at the prison clinic on 14 January 2004 and the relevant registry page regarding his admission there. It appears that this decision was taken on the basis of a practice – with reference to a Ministry of Justice circular – whereby no copies of official prison documents were to be given to detainees on grounds of security and public order. The Government have not submitted any observations on the legal basis and the manner in which this practice of restricting access to documents to detainees/prisoners was applied so as to enable the Court to weigh the relevant competing individual and public interests, or assess the proportionality of the restriction at issue. Nor have they submitted any particular justification for such a measure. 27. In these circumstances and taking into account, particularly, the nature of the documents requested by the applicant, the Court cannot find any security or public order considerations that would justify overriding the applicant's interest in having a copy of them.

28. Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests. 12 It is clear from this judgment that someone who has been examined by a doctor has in principle the right – the ECtHR speaks of an interest – to inspect the report of that doctor and to receive a copy of it. ” There must be good reasons for withholding access and copies. Since those reasons did not come to light at all here, the ECtHR quickly finished and ruled that art. 8 ECHR has been violated. 13 In my opinion it does not follow from this that the patient in the present case on the basis of art. 8 ECHR the right must be granted to access medical advice. After all, the medical advice is not based on an examination to which the patient was subjected, but on the study of the medical file. Contrary to what was at issue in the Uslu/Turkey case, no new data relating to her state of health were therefore collected.

H. 152 They were treated separately from each other in gynecological and obstetric departments. from various hospitals, where they had given birth by Caesarean section. Afterwards they found out that they could no longer get pregnant. They suspected that they had been sterilized by hospital staff during their hospital visits. Several applicants had been asked to sign documents before the delivery and/or upon discharge from hospital, but these applicants were not aware of their contents. The lawyers requested by them were not allowed to copy the applicants' medical files if they so requested. Procedures did not lead to a different result. 15 Because it provides insight into the way in which ECtHR applies art. H. /Slovakia to be quoted in more detail: “47. e. to provide an effective and accessible procedure enabling the applicants to have access to all relevant and appropriate information, A-G] should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.

48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility. 49. The applicants in the present case obtained judicial orders permitting them to consult their medical records in their entirety, but they were not allowed to make copies of them under the Health Care Act 1994. The point to be determined by the Court is whether in that respect the authorities of the respondent State complied with their positive obligation and, in particular, whether the reasons invoked for such a refusal were sufficiently compelling to outweigh the Article 8 right of the applicants to obtain copies of their medical records.

50. Although it was not for the applicants to justify the requests for copies of their own medical files (see paragraph 48 above), the Court would nevertheless underline that the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant documents concerning their health. The original records, which could not be reproduced manually, contained information which the applicants considered important from the point of view of their moral and physical integrity as they suspected that they had been subjected to an intervention affecting their reproductive status. 51. The Court also observes that the applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are or relevance.

As to the latter point, it cannot be overlooked that the medical file of one of the applicants had actually been lost (see paragraph 27 above). 52. The national courts justified mainly the prohibition on making copies of medical records by the need to protect the relevant information from abuse. The Government relied on the Contracting States' margin of appreciation in similar matters and considered that the Slovak authorities had complied with their obligations under Article 8 by allowing the applicants or their representatives to study all the records and to make handwritten excerpts thereof. 53. The arguments put forward by the domestic courts and the Government are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8, to outweigh the applicants’ right to obtain copies of their medical records. 54. In particular, the Court does not see how the applicants, who had in any event been given access to the entirety of their medical files, could abuse information concerning their own persons by making photocopies of the relevant documents.

55. As to the argument relating to possible abuse of the information by third persons, the Court has previously found that protection of medical data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention and that respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention (…). 56. However, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants. For example, communication or disclosure of personal health data that may be inconsistent with the guarantees in Article 8 of the Convention can be prevented by means such as incorporation in domestic law of appropriate safeguards with a view to strictly limiting the circumstances under which such data can be disclosed and the scope of persons entitled to access to the files (…).

57. The fact that the Health Care Act 2004 repealed the relevant provision of the Health Care Act 1994 and explicitly provides for the possibility for patients or persons authorized by them to make copies of medical records is in line with the above conclusion. That legislative change, although welcomed, cannot affect the position in the case under consideration. 58. 16 Although this ruling in the light of the in the Netherlands in art. 45) is certainly not shocking, it can nevertheless be concluded that the interpretation of art. 8 ECHR is far-reaching on this point by the ECtHR. Without hesitation, the ECtHR presupposes in this judgment that, if the exercise of art. 8 ECHR are practical and effective, the person concerned must be able to obtain a copy of a medical file relating to him without giving reasons (paragraphs 47 and 48). 17 This positive obligation is not without exceptions.

On the basis of art. 8 paragraph 2 ECHR there may be reasons for not opening up the option to obtain a copy, at least not without any clauses, as is apparent from points 49 to 56. Good reasons will, however, according to the judgment, not easily lie in (vague notions of) the prevention of abuse (paragraphs 52 to 56). According to the ECtHR, it is not easy to see that the person concerned abuses the possibility of obtaining a copy (paragraph 54). Abuse by third parties can be prevented without completely denying the data subject the possibility of access (paragraphs 55 and 56). 18 In my opinion, this ruling also does not entail that the patient in the present case on the basis of art. 8 ECHR the right must be granted to access medical advice. Where this judgment concerned a limited and cumbersome option to copy data from the file – data subjects and their legal advisers were only allowed to make handwritten notes – in the present case it concerns the denial of access to a doctor commissioned by an external doctor.

medical advice drawn up by the insurer, which is based on medical data to which the patient has direct access. Although it is going too far to say that these situations have nothing to do with each other, they are in any case issues of a different order. 19 In SB/Romania, a ruling from 2014,156 the following was discussed. The applicant has visited a dentist's practice since 2001 for the placement of crowns and bridges. In summary, after several visits to the dentist, it appeared that the crowns and bridges were not functioning properly. The applicant subsequently lodged a complaint, which was sent to the College of Physicians of Bucharest. She was then examined by another dentist, who, according to the applicant, informed her that the bridge work had not been carried out properly. A second examination took place a few days later. According to the applicant, it was informed at the time of that investigation that the bridges were not to be supported.

A few months later, the applicant requested to be informed about the findings in the medical expert report. She was informed by the College of Physicians of Bucharest that those findings were for internal use only by the Disciplinary Panel of the College of Physicians of Bucharest and that if she wished to obtain a medical expert report, she should contact the National Institute of Forensic Medicine . She was subsequently told by that institute that a medical expert report is only drawn up in the context of a judicial procedure. After the applicant had filed a report and a criminal investigation had been initiated, she was again examined by order of the aforementioned institute and a medical expert report was drawn up. The applicant tried to obtain a copy of the report, but was initially unsuccessful. She was informed that this would not be possible until the case had been referred to court.

She eventually got a copy of the report. After more than ten years, the judge reached a verdict in which the applicant was wrong. The applicant's appeal was dismissed. 20 In Strasbourg, the applicant complained of a violation of Art. 6 ECHR (not art. 8 ECHR) due to, among other things – in short – the lack of access to the findings of the medical examination that had taken place on behalf of the College of Physicians of Bucharest and the lack of the possibility to prepare a medical expert report. obtain without initiating a civil procedure or filing a report. However, the ECtHR treated the complaint in the context of art. 8 ECHR157 and considered it justified. An extensive description of the ECtHR's considerations makes sense here, since they are formulated in principle and are also important for the design of Dutch law: “2. The Court's assessment (a) General principles 65. The Court notes that it has already held that people's physical and psychological integrity, their involvement in the choice of medical care administered to them and their consent in this respect, as well as their access to information enabling them to assess the health risks to which they are exposed, fall within the ambition of Article 8 of the Convention (…).

69. When reviewing a Contracting State's compliance with its positive obligations arising under Article 8 in the field of medical negligence, the Court has sought to establish whether the victim had access to proceedings that allowed the existence of any liability on the part of the medical practitioner or establishment concerned to be established. (…) 71. In the instant case, the lack of access to the findings contained in the medical reports prepared by the College of Doctors and the Institute (until October 2004 in this last case) suggest that the applicant might have been deprived of access to an effective remedy allowing her to establish whether she had been a victim of malpractice and to obtain adequate redress. (…) 73. D. H. and Others v. Slovakia, no. 32881/04, § 58, ECHR 2009 (extracts)). 74. The importance of obtaining a timely medical expert report is also revealed by the fact that its findings may be determinative in establishing the correct legal qualification of the acts committed by the practitioner concerned and therefore the admissibility of any complaint against the doctor.

(…). 75. The Court does not find lack of merit in the applicant's argument that, before embarking on lengthy and costly litigation, a patient needs to have access to a reliable and timely medical expert report that can identify whether any medical negligence has been committed. On the basis of the findings of such a report, one may decide whether or not to initiate such litigation and/or identify the legal remedy judged to be best suited to the case. 76. The Court will further ascertain whether the remedies at the applicant's disposal were sufficient to provide her redress for the loss she suffered as a result of the medical procedure. 77. The Court notes that in the instant case the applicant attached a civil claim to her criminal complaint against the dentist (…). In theory, at least, at the end of those proceedings, the applicant could have obtained an assessment of, and compensation for, the damage suffered (…).

This remedy was therefore appropriate in the present case and the Court will thus examine the manner in which the investigation was carried out. 78. The Court observes that the Bucharest Sector 1 District Court held in its judgment of 8 March 2011, upheld by the Bucharest County Court in its decision of 4 October 2011, that there had been no medical negligence on the part of the dentist. The district court concluded that the applicant's condition was the result of her own negligence, as she had refused to have the faulty dental prosthetics permanently fixed. D. (…) . The Court further notes that the same court dismissed the civil complaint joint to the criminal proceedings holding that the conditions required to attract civil delictual liability had not been met in this case. 79. Moreover, the Court finds it relevant in the present case that the applicant did not remain inactive, nor was her sole goal to have the dentist criminally punished (…).

She lodged requests with the Ministry of Health and the Bucharest College of Doctors and pursued a civil claim within the criminal proceedings. However, neither of those authorities offered her redress. 80. D. lasted more than eight years. The criminal and civil complaints lodged by the applicant concerned an urgent matter related to her state of health and the delay in reviewing her complaints contributed to the aggravation of her state of health. 81. The foregoing considerations are sufficient to enable the Court to conclude that the applicant suffered an infringement of her right to respect for her private life. Furthermore, the system in place as at the date of the facts of the present case prevented the applicant from obtaining redress for that infringement. The respondent State has therefore failed to comply with its positive obligations under Article 8 of the Convention. 82. H. /Slovakia (see paragraph 73), but does so in a somewhat different context.

H. /Romania puts truth-finding at the center for the purpose of establishing liability in the context of a possible “serious interference with the right to physical integrity”, which touches on art. 8 ECHR (paragraphs 65 and 67). 160 This is remarkable. That this positive obligation, which directly relates to liability law and (civil) procedural law, arises from art. 8 paragraph 1 ECHR, not everyone who consults this provision will immediately notice. It is also striking that the ECtHR has ruled without much ado that art. 8 ECHR provides for a right “to obtain, within a reasonable time, a medical expert report which could have determined whether – from a medical standpoint – there was a case of medical negligence” (paragraph 73) and that it appears to endorse that should be possible before judicial proceedings are initiated (paragraphs 74 and 75). The ECtHR seems, inter alia, to rule that for that reason the applicant should have received a copy of the medical expert report drawn up on behalf of the College of Physicians of Bucharest, even if it had been drawn up for the purpose of a possible disciplinary procedure (paragraphs 71 and 73 ).

22 What does this statement mean for the present case? To begin with, there are definitely similarities. The fact that there is a positive obligation “to maintain and apply in practice an adequate legal framework enabling victims to establish any liability on the part of the physicians concerned and to obtain appropriate civil redress” is without doubt important for determining the legal position of patient. The fact that in that regard it has the right “to obtain, within a reasonable time, a medical expert report which could have determined whether – from a medical standpoint – there was a case of medical negligence” is of particular importance. However, I do not believe that this means that the patient, pursuant to art. 8 ECHR the right must be granted to access medical advice. B. was subjected to a physical medical examination in response to a complaint lodged by her and was nevertheless manifestly not entitled to a copy of the report prepared as a result of that examination under national law.

That is not easy to explain. However, the patient in the present case was not involved in the examining physician's examination. 21 with regard to the application of art. 7:464 paragraph 2 of the Dutch Civil Code. D. 23 This ECtHR case law deserves to be kept in mind. It extends further than many might think. In my view, however, this case-law is not so far-reaching that it entails that, in the present case, access must be given to the medical advice. Even if it were assumed that art. 8 ECHR in principle entails that access must be given to medical advice such as that at issue in this case, then in my opinion the interest of the hospital and its liability insurer in determining a position and preparing the defense in freedom and privacy in the light of the limitation clause of art. 8 paragraph 2 ECHR can – and often: will – entail otherwise, as will be discussed below in paragraph 7. I will now first discuss the right of access regulated in the GDPR.

6 Access under the GDPR A. 3, a significant part of the lower courts and disciplinary courts on access to medical advice of the type at issue here relate to the application of the Wbp, with which the Data Protection Directive was implemented in the Netherlands. 161 The AVG aims to protect private life and personal data and to protect the free movement of personal data, in line with art. 7 and 8 of the Charter of Fundamental Rights of the European Union (hereinafter: 'ECU') and Art. 2 Below I will first discuss the scope of application of the GDPR (section B). Then I will discuss the right of access under the GDPR (section C). This will be followed by a discussion of the term 'personal data' in the GDPR (section D), after which I will discuss the scope for limiting the exercise of the right of access under the GDPR (section E). I close with an interim conclusion (section F). In general terms, I note that it is quite conceivable that in a case such as this, a patient is in principle entitled to inspect (part of) the medical advice and to a copy of it, now that that medical advice is fully or partially can be regarded as 'personal data'.

However, the GDPR offers scope for limiting this right, also on the basis of the protection of the undisturbed exchange of views. This means that in a case such as the present one, a patient will usually not be able to request access to the medical advice on the basis of the AVG. B. 3 Art. 2 para. 164 A 'file' is “any structured set of personal data that are accessible according to certain criteria, whether this is completely centralized or decentralized or on functional or geographical grounds has been disseminated” (Art. 4, preamble and under 6), GDPR). 167 C. 4 The right to access personal data is enshrined in Art. ” Art. 1 para. ” This forms the background of the right of access provided for in the GDPR. 5 This right of inspection is regulated in art. 15 paragraphs 1, 3 and 4 GDPR. Those provisions, in so far as relevant, read as follows: “1. The data subject has the right to obtain confirmation from the controller as to whether or not personal data concerning him/her is processed and, if so, to obtain access to those personal data (…).

(…) 3. The controller shall provide the data subject with a copy of the personal data being processed. If the data subject requests additional copies, the controller may charge a reasonable fee based on the administrative costs. Where the data subject submits his request electronically, and does not request another arrangement, the information shall be provided in a commonly used electronic format. 4. 6 According to art. 15 para. 1 GDPR, the data subject has the right to obtain from the controller access to personal data concerning him that are being processed. The controller is the (legal) person who determines why and how that processing takes place (art. 4, preamble and under 7, GDPR). 168 I note that for the exercise of the right of access under art. 15 para. 51 with regard to Art. 7:456 BW was discussed. The GDPR, as directly effective EU law, does not care about the concept of 'medical file'.

At the same time, art. 7:456 Dutch Civil Code not limited to personal data. The access rights in art. 7:456 BW and art. 7 Art. 15 para. 3 GDPR entitles the data subject to “a copy of the personal data being processed”. 171 What is meant by 'a copy'? A similar term is found in other language versions (“a copy”, “une copie” and “eine Copy”). 172 Is it an overview of the personal data concerned or copies of the documents containing the personal data? An answer to these questions is important for the present case and similar cases, so I will go into them in a little more detail. e. 173 According to this case law, the data subject is not automatically entitled to copies of the documents containing the personal data in question. 9 In the context of art. 35 Wbp has previously ruled in a comparable but more far-reaching sense that “the controller in the fulfillment of the obligations laid down in art.

”174 According to your Council – as I understand – it may be necessary under certain circumstances to provide a copy of a document in which personal data occur, but it does not apply that there is a right to this in a general sense. In my view, providing a copy of the document containing the personal data will be particularly relevant in cases where the personal data is closely intertwined with what is otherwise contained in a document. The cases leading to this case law of Your Council mainly concerned transcripts of telephone conversations. 10 In my opinion, there are insufficient indications that the GDPR intends to make a far-reaching change on this point. The text of art. 15 (3) GDPR does not refer to copies of documents, but only copies of personal data. In the preamble to the GDPR - in which the word 'copy' as referred to in Art. 15 paragraph 3 GDPR - no indications can be found that the data subject is (in principle) entitled to copies of documents containing personal data.

Recital 63 of the GDPR states, inter alia: “A data subject should have the right to access the personal data collected about them and to exercise that right easily and at reasonable intervals so that they can can notify the processing and verify its lawfulness. This also means that data subjects should have the right to access their personal data regarding their health, such as the data in their medical file, which contains information about, for example, diagnoses, research results, assessments by treating physicians and treatments or interventions performed. (…) Where possible, the controller should be able to provide remote access to a secure system on which the data subject can directly view his personal data”. In my view, this does not state that the data subject must simply receive copies of documents containing personal data; this always involves consulting personal data as such.

11 In the literature175 and lower case law176 it is therefore assumed that even after the introduction of art. 177 The European Data Protection Board (hereinafter: 'EDPB') also assumes this. Recent guidelines state the following: “The obligation to provide a copy is not to be understood as an additional right of the data subject, but as modality of providing access to the data. It strengthens the right of access to the data and helps to interpret this right because it makes clear, that access to the data under Art. 15(1) comprises complete information on all data and cannot be understood as granting only a summary of the data. ”178 And further: “Unlike the directive [the Data Protection Directive, A-G], the GDPR [the AVG, A-G] expressly contains an obligation to provide the data subject with a copy of the personal data undergoing processing. This, however, does not mean that the data subject always has the right to obtain a copy of the documents containing the personal data, but an unaltered copy of the personal data being processed in these documents.

Such copy of the personal data could be provided through a compilation containing all personal data covered by the right of access as long as the compilation makes it possible for the data subject to be made aware and verify the lawfulness of the processing. Hence, there is no contradiction between the becoming of the GDPR and the ruling by the CJEU regarding this matter. The word summary in the ruling should not be misinterpreted as meaning that the compilation would not encompass all data covered by the right of access, but is merely a way to present all that data without giving systematically access to the actual documents. 12 According to the EDPB, it is therefore important that the data subject can take cognizance of all personal data in 'raw form' and is able to assess the lawfulness of the processing thereof. e. when this is the only way in which the data subject can verify which personal data are processed and how.

This may be the case if, as stated, the personal data are closely intertwined with what is otherwise contained in a document. 180 The motto in this interpretation of art. 15 para. 181 In my opinion, support for this can also be found in Art. 15 para. 4 GDPR, which provides that in Art. 15 (3) GDPR, the right to obtain a copy does not affect the rights and freedoms of others. This provision would hardly be necessary if Art. 15 paragraph 3 of the GDPR would in principle only entitle you to an overview of the personal data, because this will not quickly jeopardize the rights and freedoms of others. The rights and freedoms of others can certainly be at stake if copies of (parts of) documents have to be provided. Those documents may contain personal data of others, while the confidentiality of those documents may also serve the exercise of rights, such as the right to express a position and to prepare the defense in freedom and privacy, which, as stated in paragraph 7 to order comes.

H. et al. e. ”182 As mentioned, the ECtHR assumes, at least where medical information is concerned, that the person concerned must in principle be able to inspect the documents in which that information is included and must be able to receive copies thereof. This case law is also important for the application of the GDPR. The GDPR must, in accordance with Art. 8 ECHR are interpreted, having regard to art. 7 and 8 CEU, which is based on art. 8 ECHR to regulate an equivalent right or a right to the protection of personal data, in conjunction with art. 52 paragraph 3 and art. 45 are also important here. Access must be made pursuant to art. 12 para. 3 GDPR "promptly and in any case within one month of receipt of the request". e. only if “requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive nature”, as is apparent from Art. 12, paragraph 5, opening words and under a, in conjunction with art.

16 In view of the foregoing, it is important to know what exactly 'personal data' is. I will now turn to this difficult subject. Only once this has been done will it be possible to assess whether the GDPR gives the right to inspect the medical advice in the present case. D. 17 What is 'personal data'? According to art. 4, preamble and under 1) GDPR, “all information about an identified or identifiable natural person” falls under the term “personal data”. The said provision further states that “identifiable is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or one or more elements characteristic of the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person”. 185 This means that the answer to the question of whether a piece of data is personal data cannot be should be the same for everyone.

Strangely enough, a piece of data can therefore be personal data with regard to A if the latter is able to trace the data back to an identified or identifiable natural person and at the same time not be personal data with regard to B and C if they are unable to do so. 186 The status of 'personal data' can therefore have a kind of 'relative effect'. 18 It should be clear that, in view of the fairly broad meaning of the term 'personal data', the protection offered by the GDPR extends beyond the data that the data subject has provided to another person (for example by means of a form). In principle, data created by another person relating to the data subject also fall under the protection offered by the GDPR if they can be traced back to the data subject. 19 An important question for this case is whether – and in which cases – an analysis based on personal data itself is again personal data.

It is a contentious issue, the discussion of which will take up some space. 187 This is a good starting point. That case concerned a liability action against the Waterland Hospital. The hospital's liability insurer had asked a doctor from another hospital to review the case, which resulted in a note with findings. Pursuant to art. 843a Rv requested the person concerned to inspect the memorandum in the context of the liability procedure. One of the (additional) aspects involved was the significance of the Wbp for the application of art. 843a Rv in this case. S. 3. Insofar as the part argues that the Court of Appeal in weighing interests on the basis of art. 843a paragraph 4 DCCP should have attached decisive importance to the circumstance that the documents for which inspection is requested relate to personal data of [the son] within the meaning of the Wbp, the following applies. e. the parties whom [plaintiff] has filed for a (alleged) professional misconduct are held liable.

S. /Minister for Immigration, Integration and Asylum, A-G]. Insofar as relevant here, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (OJEU 1995, L 281 /31), which has been implemented by the Wbp, enables the data subject to check whether his personal data are correct and have been processed lawfully, in order to protect the data subject's right to respect for his or her privacy. This control can then lead to rectification, erasure or blocking of the data. The present claim of [claimant] is aimed at obtaining information for the purposes of the present proceedings and not at the aim of Directive 95/46/EC (unlike, for example, the case in the judgment of the CJEU referred to in 2 above). 20 December 2017 [Nowak/Data Protection Commissioner, A-G]).

This does not therefore concern personal data within the meaning of that directive. cf. the aforementioned judgment of the CJEU of 17 July 2014, paragraphs 44-46. 22 If this case is compared with the present case, then it is obvious that the medical advice in the present case is not (wholly or partly) personal data, so that for that reason alone there is no right of access under the GDPR (as successor of the Data Protection Directive and the Wbp), although this does not concern a claim or request based on art. 843a Rv. , cited by the Council. /Minister for Immigration, Integration and Asylum of the CJEU and in view of the fact that the CJEU seems to have changed course in the meantime. S. 191 The ECJ has ruled to the contrary. 24 I immediately note that – if I am not mistaken – the above-mentioned judgment of your Council in the Waterland Hospital judgment seems to be based on a different reasoning than is expressed in the judgment of the ECJ.

Your Council ruled there: “The present claim by [claimant] is aimed at obtaining information for the purposes of the present proceedings and not at the aim of Directive 95/46/EC (…). S. /Minister for Immigration, Integration and Asylum has ruled along those lines. In that judgment, the ECJ only ruled that a legal analysis in the minute of an immigration decision cannot be regarded as personal data as such in view of the objectives of the Data Protection Directive (not taking into account the objectives of the request for access). The purpose for which access is required in a specific case is irrelevant in the reasoning of the ECJ. S. 199 Van Graafeiland writes mildly in his AB annotation, but apparently looking for a meaningful interpretation: the answer to the question whether personal data is involved therefore not only with regard to the definition of that term, but also with regard to the purpose served by the Privacy Directive [the Data Protection Directive, A-G].

201 Personal data are data that can be traced back to an identified or identifiable natural person. 202 The argument that checking and rectification with regard to such data is not possible convinces me – in within the framework of, meanwhile, the GDPR – at least not. Assuming that checking and rectifying a legal analysis is indeed not possible, the GDPR also provides for the right of data subjects to – in short – check how their personal data are processed (Art. 15 para. 1),203 which right is not depends on the right to rectification (art. 206 In that context, it may also be important that access is given to a (quasi-)legal analysis prior to a decision by an administrative body, regardless of whether checking and rectification of that analysis is possible. S. /Minister for Immigration, Integration and Asylum, seems to me difficult to maintain, partly against this background and in the light of the spirit and objectives of the GDPR.

This approach also carries the risk of abuse: call something an 'analysis' and the right of access disappears. Please note: as will become apparent below, in certain cases there may be good reasons not to allow access to personal data, but the royal road of art. 23 GDPR, which requires a balancing of interests and (fundamental) rights. I will also come back to that. S. /Minister for Immigration, Integration and Asylum. S. 209 The comments of an examiner are no better than a legal analysis for checking and rectification. In essence, they even come down to the same thing: certain input is assessed on the basis of a predefined assessment framework, whereby the input for a legal analysis usually even undoubtedly consists of personal data, while that for the answers given by an examinee to the at first sight does not apply. ” personal data and does that also apply to the assessment by the examiner?

One can hesitate. However, the ECJ ruled, apparently without hesitation, that this concerns personal data: the answers of the examinee and the comments of an examiner in response to them can indeed be regarded as personal data. The ECJ bases this, among other things, on the following: “33 As the Court has already established, the scope of Directive 95/46 is very wide and the personal data referred to therein are of a diverse nature (…). 34 The use of the words 'any information' in the definition of the concept of 'personal data' in Article 2(a) of Directive 95/46 indicates that the intention of the EU legislature was to give a broad meaning to this concept, which is not limited to sensitive or personal information but potentially includes any kind of information, both objective information and subjective information in the form of opinions or assessments, provided that this information 'relates' to the data subject.

35 The latter condition is fulfilled where that information is linked to a specific person by reason of its content, purpose or effect. (…) 42 As regards the examiner's comments on the candidate's examination answers, it must be noted that, like the candidate's answers, they constitute information concerning the latter. 43 The scope of the examiner's comments reflects his opinion or assessment of the candidate's individual performance during the examination and, in particular, of his knowledge and skills in the field concerned. Moreover, those observations are precisely intended to record the examiner's assessment of the candidate's performance and may have an effect on the latter, as explained in paragraph 40 of this judgment. (…) 49 Consequently, the failure to qualify as 'personal data' information concerning a candidate contained in his answers to a professional examination and in the examiner's comments on those answers, would completely deprive that information of the protection of the principles and safeguards relating to personal data , in particular the principles laid down in Articles 6 and 7 relating to the quality of such data and the admissibility of their processing, as well as to the data subject's rights of access, rectification and opposition provided for in Articles 12 and 14 of that Directive and to the supervision carried out by the supervisory authority pursuant to Article 28 of the aforementioned Directive.

50 In addition, it is common ground that, as the Advocate General noted in point 26 of her Opinion, an examination candidate has a legitimate interest, on the basis of the protection of his privacy, in being able to oppose the processing of his examination answers and the comments of the examiner with these answers outside the examination procedure, and in particular against communication to third parties or publication thereof, without his permission. Likewise, the body organizing the exam, as the controller, is responsible for ensuring that those answers and comments are kept in such a way that third parties do not have unauthorized access to them. (…) 56 Since the written answers given by a candidate to a professional examination and any comments made by the examiner on those answers can thus be checked, in particular as regards their accuracy and the need to be kept within the meaning of Article 6(1)(d) and (e) of Directive 95/46, as well as may be the subject of a rectification or erasure under Article 12(b) of the Directive, it must be stated that granting a right of access to those replies and observations pursuant to Article 12(a) of this Directive, the purpose of that Directive is to ensure the protection of the candidate's right to privacy with regard to the processing of his/her personal data (see, a contrario, judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraphs 45 and 46), whether or not that candidate has such a right of entry under the procedure applicable national law.

57 In that regard, it must be borne in mind that the protection of the fundamental right to respect for private life means, inter alia, that any natural person can satisfy himself that his personal data are accurate and lawfully processed. As is apparent from recital 41 of Directive 95/46, in order to be able to carry out the necessary checks, the data subject has the right under Article 12(a) of that directive to access data concerning him or her which are the subject of form a processing. This right of access is, in particular, necessary to allow the data subject to obtain from the controller, where appropriate, the rectification, erasure or blocking of those data and, consequently, to exercise the right referred to in Article 12(b) of that Directive. 28 It is difficult to see this judgment in anything other than as a poorly worded change of course. ” Thus in paragraph 34. ” Against this background, I certainly do not rule out the possibility that an analysis such as that contained in a medical advice such as that at issue in this case should indeed (at least partially) be regarded as personal data.

Suppose such a medical opinion states – I will give a non-imaginary example – that when excluding pulmonary embolism in accordance with protocol P, the patient was not subjected to a CT scan because the result U of the blood test gave no reason to do so and, in accordance with the The usual method M also showed no indications of pulmonary embolism or a related condition. 22) – less likely to be personal data than the assessment of my answer to the exam assignment about the content of the reversal rule? That seems hard to accept. E. 29 Although in view of the foregoing it is justifiable that a patient under art. 15 paragraphs 1 and 3 GDPR is in principle entitled to inspect and to a copy of a medical advice as discussed here, or at least to inspect and a copy of passages contained therein that are in accordance with the foregoing personal data, I believe nevertheless, the patient will ultimately not be able to exercise that right in a case like this.

The reason for this lies in the right of the hospital and the insurer to prepare the defense in freedom and privacy. Below I will discuss how that right is important in the context of the GDPR. In section 7 I will then discuss the content and basis of that right. 30 Art. 23 GDPR creates some scope for limiting the exercise of, among other things, the right of access under Art. 15 para. 1 GDPR. The provision reads, in so far as relevant here: “1. The scope of the obligations and rights referred to in Articles 12 to 22 and Article 34 (…) may be limited by a Union or Member State legislative measure applicable to the controller or processor, provided that such restriction is without prejudice to the essential content of fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to ensure: (…) i) the protection of the data subject or the rights and freedoms of others; (…) 2.

31 The conditions for a limitation formulated in the first paragraph are very reminiscent of art. 210 Does such a legislative measure now exist in the Netherlands? Art. 41 paragraph 1 preamble and under i of the Implementation Act General Data Protection Regulation (hereinafter: 'UAVG') provides the following: “1. The controller may waive the obligations and rights referred to in Articles 12 to 21 and Article 34 of the Regulation insofar as this is necessary and proportionate to ensure: (…) i. ”211 They add the following: “After all, Article 23, second paragraph, of the GDPR prescribes that the legal measures referred to in Article 23, first paragraph, contain 'specific provisions' with regard to (at least) the subjects mentioned there. Article 41 of the GDPR Implementation Act does not contain any specification in this sense; the regulation of Article 23(2) of the GDPR is passed on in full to the controller by stipulating that the controller must, where applicable, take into account the elements laid down in Article 23(2) of the GDPR.

On the other hand, the choice made in the GDPR Implementation Act is also understandable; it is highly unforeseeable if the in Article 41, first paragraph, of the GDPR Implementation Act jo. ”212 I think they have a point on both counts. On the one hand, art. 41 UAVG indeed virtually no additional support compared to art. 23 para. 1 GDPR and this is at odds with the requirements of Art. 23 para. 2 GDPR. On the other hand, the cases that may arise are probably so disparate that additional guidance will also be difficult to achieve, especially when it comes to balancing fundamental rights, as is the case here, which will become clear below. 33 Legislative history therefore clarifies that Art. 41 UAVG does not provide a basis for categorical restrictions and that a case-by-case assessment is needed: “The provision provides (…) an option to derogate from the rights under the Regulation in individual cases only, if this is strictly necessary in view of the interests referred to in Article 23 of the Regulation.

34 Offers art. 23 GDPR in conjunction with Art. 41 paragraph 1, preamble and under i of the UAVG now the possibility to give zero to a patient who wishes to inspect a medical advice such as the one at issue in the present case, in view of the right of the hospital and its liability insurer to determination of position and preparation of the defense in freedom and privacy? 215 Although that right, as will become clear in paragraph 7 below, does not have a clear basis in a fundamental rights document such as the ECHR or the CEU, the corresponding interest is acknowledged in so many words. in the GDPR. Recital 52 of the GDPR states, inter alia: “The prohibition on the processing of special categories of personal data should also be subject to derogation if Union or Member State law so provides and appropriate safeguards are provided for the protection of personal data and other fundamental rights, when it is in the public interest, (…).

A derogation must also provide for the possibility of processing those personal data if this is necessary for the establishment, exercise or substantiation of a legal claim, in judicial proceedings or in administrative or extrajudicial proceedings” (emphasis added by me, A-G ). under art. 9 paragraph 1 in connection with paragraph 2, preamble and under f, of the GDPR, it is stated in so many words that an exception to the aforementioned prohibition applies if “the processing (…) is necessary for the establishment, exercise or defense of [read : against, A-G] a legal action” (emphasis added by me, A-G). Although this concerns a derogation from the prohibition on the processing of certain types of personal data (and not a limitation on the exercise of the right of access), it is clear that in the drafting of the GDPR it was recognized that someone may have an interest when processing personal data for the purpose of defending a legal claim.

This shows that in a democratic society there is a need to protect this interest to some extent and that claims by others sometimes have to give way. This importance, as will become clear in a moment, is also recognized in domestic case law. 35 Is the other conditions for a restriction pursuant to Art. 23 GDPR, in particular that denying access is a proportionate measure? That will have to be answered in each individual case, but the answer will usually be 'yes' in cases similar to the present one. After all, the patient has 'normal' access to the medical file (pursuant to Article 7:456 of the Dutch Civil Code) and to his personal data (Article 15(1) of the GDPR), insofar as such access is possible without affecting the interest (and the right) of the hospital and the insurer to determine a position and to prepare the defense in freedom and privacy is (too) limited. No new personal data were collected when the medical advice was drawn up (regardless of whether the medical advice itself is personal data or consists of personal data), so that the patient's interest in monitoring the processing of his personal data is only limited to a limited extent.

affected. However, the balancing of the interests involved cannot and does not have to be made generically. Herein lies the disadvantage of legal uncertainty, but also the advantage that customization is possible. F. 36 The foregoing leads me to the conclusion that, in a case such as the present one, a patient is generally not allowed to act on the basis of art. 15 paragraphs 1 and 3 GDPR will be able to request access to the medical advice. The reason for this is not that such medical advice cannot be regarded in whole or in part as personal data, but that the hospital and/or its liability insurer will generally be able to invoke the patient's right to take a position and prepare the defense in freedom and privacy. I will now elaborate on that right. 7. 1 I conclude my reflections with a subject which, unfortunately, is no simpler than the preceding subjects. 216 In 2018 your Council considered – in a different kind of matter than the one at issue here – “that for a party an important reason within the meaning of art.

843a paragraph 4 DCCP can exist by maintaining the confidentiality of its internal decision-making and thinking, including the role of its external advisers, if any. Whether in a specific case there is such an invoked weighty reason that should lead to the rejection of the claim or request with regard to those confidential data, must be decided by the court, taking into account all interests involved. an undisturbed exchange of ideas is therefore certainly recognised. The exercise of a right of access to medical advice drawn up on behalf of the hospital and/or its liability insurer violates that interest, it can be argued, because it means that the participants in that exchange of views, including the medical adviser, may not more entrusting everything to paper. 9). 2 In the foregoing it has already become clear that I can agree with the widely held view that the undisturbed exchange of views deserves protection.

So far it's a simple matter. More difficult is whether this only concerns an interest or also a right and, if it concerns a right, what the basis is. In other words: is there a basis for a 'right to take a position and prepare the defense in freedom and privacy'? This is especially relevant where the GDPR is concerned. After all, EU law does not simply have a 'message' to an 'interest' recognized in Dutch case law, in view of the requirements of Art. 23 GDPR proposes the limitation of the right of access (in broad outline: a legislative measure that meets the requirements of Art. 23 paragraph 2 GDPR, which contains a limitation that does not affect the essential content of the fundamental rights and which, in a democratic society, provides a necessary and proportionate measure to safeguard one of the interests referred to in Art. 23 para. GDPR). A sturdier base is needed. 3 That foundation is there for me.

In my opinion, it can be defended – as has actually happened218 – that Art. 6 paragraph 1 ECHR requires that the interest of a party to freely and privately determine a position and to prepare the defense against a (legal) claim is protected. I explain this in more detail. It has rightly been pointed out that art. 219 I am not aware of any judgments of the ECtHR in which a generic right to establish a position and preparation of the defense in freedom and privacy is anchored in art. 6 paragraph 1 ECHR. However, that is not a reason to rule out that this right is indeed in art. 6 paragraph 1 ECHR. 220 The ECtHR is therefore not a 'letter servant', but checks whether the result corresponds for the purpose of the relevant ECHR law. It should also be borne in mind that Art. 6 ECHR is of course not addressed exclusively to the courts, but to the state as a whole and thus to all state organs.

The legislation must therefore also be in accordance with Art. 6 paragraph 1 ECHR (this also includes the right of access to the courts). 14, EU law must also offer at least as much protection as the ECHR, which means in concrete terms that the art. 23 GDPR must be interpreted in accordance with the convention, for which it also leaves plenty of room. 4 It is arguable that the right to a fair trial of art. Article 6(1) of the ECHR may indeed be compromised if a party is required to provide access to the exchange of views underlying that party's position and defense prior to a procedure. However desirable it is for hospitals and their liability insurers to be transparent in the settlement of (possible) medical errors and however much an out-of-court solution to a dispute is preferable, it should not be made (practically) impossible for a party to make a well-thought-out decision. and to put forward a reasoned position in the forum of the judge.

Precisely because the views of the parties can be put forward in that forum as effectively as possible, there is a fair trial and the judge's judgment has authority. It is easy to see that this process can be thwarted if parties – or worse, one party but not the other – are allowed access to the documents that arise during the exchange of views prior to a procedure. Who is going to commit to paper the arguments that the other party may be able to put forward and then see how they might be responded to? Who would dare to write that their own behavior 'certainly does not deserve a beauty prize because X, Y and Z'? These questions answer themselves. 5 The undisturbed exchange of views also applies to a medical opinion such as that delivered in this case. A hospital or a liability insurer must also be able to ask a medical adviser to assess a case in the safe knowledge that his findings will not reach the other party.

Otherwise they probably won't do that anytime soon. 221 The ex ante expectation that access will still have to be given at some point disrupts the exchange of views just as much as the knowledge that this must be done immediately. 6 Is the undisturbed exchange of views always the deciding factor? No, of course this applies as art. 6 paragraph 1 ECHR indeed includes a right to determine a position and to prepare the defense in freedom and privacy, which does not mean that it always dominates. This will usually be the case, but a consideration of (fundamental) rights remains necessary,222 as also art. 23 GDPR in conjunction with Art. 35 inclusive). 1 I now come to formulating some findings. 5 of the Dutch Civil Code and has essentially ruled that the right of the hospital and the liability insurer to defend the defense in freedom and privacy. to prepare stands in the way of the application of 'the right of access' of art.

7:456 and art. 7:464 paragraph 2, opening words and under b, Dutch Civil Code. 5 of the Dutch Civil Code and that this section – contrary to what the CTG has taken as the point of departure – does not provide for a right of inspection of the patient vis-à-vis the assessing physician. 3 The conclusion on this point is therefore clear in any case. This conclusion is also, in my view, satisfactory. First of all, it is far-reaching if a patient in a case such as the present could require an assessing doctor to provide access to medical advice that has been drawn up for the benefit of another person, not to mention the interests of that other person. The assessing physician thus becomes involved, as an outsider, against his or her will in the issue between the patient and the hospital. That seems burdensome and undesirable to me. It seems to me difficult to accept that it would be disciplinaryally culpable if the assessing doctor reacts negatively to such a request for access.

5 of the Dutch Civil Code does not provide for a right of access to the medical advice that can be exercised vis-à-vis the hospital (as a care provider), because a medical advice such as this is not part of the medical file. belongs. In that light, too, the conclusion that the patient has no right of inspection vis-à-vis the assessing physician can be well defended. It would be remarkable, barring exceptions, if a right of inspection can be invoked with regard to the assessing physician and not vis-à-vis the hospital (assuming that the evaluating physician has shared his findings with the hospital). 5 Although art. 8 ECHR and the GDPR were not addressed in the contested decision, these subjects also merited attention, if only because in practice similar cases arise in which potentially – to substantiate a request or claim for access – one or even both of these schemes are invoked. That is not inconceivable because, as has been shown several times above, a considerable amount of case law has appeared with regard to the application of the Wbp to a case such as the present one.

6 The right to privacy as referred to in art. As it became clear in paragraph 5, 8 paragraph 1 ECHR entails that a patient in principle has the right to inspect the health data collected with regard to him or her. Although that right is interpreted broadly in the case law of the ECtHR, at the same time limitations are in accordance with Art. 8 paragraph 2 ECHR possible. It became clear that art. 8 ECHR in a case such as this, in my opinion, does not entail that a patient should be given the right to inspect medical advice, so that the same outcome is achieved as when applying art. 5 CC. 7 As it turned out in paragraph 6, the GDPR creates more complications. In particular, it is difficult to maintain that medical advice such as the one at issue in this case is not (largely) partly personal data. In principle, this argues in favor of adopting a right of access to that medical advice. On the other hand, in the context of the GDPR, significance also belongs to the right of the hospital and/or its liability insurer to determine a position and prepare the defense in freedom and privacy, which can prevent the exercise of a right of access and that in my view in my view, will usually do in cases such as the present.

8 I discussed the latter subject, the right to take a position and prepare the defense in freedom and privacy', in section 7. A difficulty in interpreting that right is that the basis for it is not crystal clear. Although case law of the ECtHR confirming this is lacking, I believe that this basis can be found in art. 6 paragraph 1 ECHR, since in my opinion the protection of an undisturbed pre-procedural exchange of views and the determination of a position can be a condition for a 'practical and effective' right to a fair trial. Of course, this does not mean that this protection is decisive in every specific case. 9 In essence, the CTG based the dismissal of the complaint on the right of the hospital and the insurer to determine a position and prepare the defense in freedom and privacy. One can live with the result, but the contested decision is nevertheless flawed. 5 of the Civil Code as a whole lacks application to the relationship between the patient and the assessing physician.

The assessment of the right to a free statement of position should therefore not have been discussed in that context. 5 of the Dutch Civil Code and in the second place in exploring the basis(s) and scope of the right of access from a somewhat broader perspective, in which context art. 8 ECHR and the GDPR are important. My exploration has led me to the conclusion that in a case such as the present one, the patient cannot, in principle, demand access to the medical advice. 9 The claim The claim is that Your Council will annul the contested decision in the interest of the law and will understand that the annulment will not prejudice the rights acquired by the parties. The Attorney General at the Supreme Court of the Netherlands A-G 1 I hesitate at this term. According to Van Dale, advice is 'advice'. This is not necessarily decided in an assessment of a medical file. However, the term "medical advice" does not seem unusual for the resulting findings.

See for example A. , The Hague: Bju 2015, p. P. Wijne, Liability for care-related damage, The Hague: Boom Legal 2021, p. 892-900. So I agree with this word usage. 2 CTG January 29, 2021, ECLI:NL:TGZCTG:2021:42. 3 See, among others, A. Wilken 'The significance of the Personal Data Protection Act for the medical assessment process in the event of personal injury', TVP 2008, p. M. Simons, "The Blacksmith's Secret. ', TVP 2014, p. 93-101, A. , The Hague: Bju 2015, p. 62 and J. Legemaate, 'Openness about medical errors requires policy', NJB 2016, p. 115-116. M. Giard at Arnhem-Leeuwarden Court 15 May 2018, ECLI:NL:GHARL:2018:4396, JA 2018/99. Several authors refer to the Code of Conduct for Openness to Medical Incidents, which was drawn up under the auspices of De Letselschade Raad and was drawn up by representatives of, among others, the KNMG, the Dutch Patients' Consumer Federation (NPCF) and the Dutch Association of Insurers.

pdf (last consulted on 16 August 2022). 4 Supervisory Board Insurance 12 December 2005, 2006/009 WA, Injury & Damage 2006, p. nt. L. L. pdf (latest consulted on 16 August 2022)), Rb. nt. A. Wilken (X/IJsselland Hospital) (no access; critical annotation), Rb. Zutphen 8 October 2009, ECLI:NL:RBZUT:2009:BK4206 (X/Achmea) and in the same matter Rb. nt. A. Wilken (although perusal, predominantly annotation in agreement), Rb. nt. M. nt. C. nt. M. nt. L. ) (no access; annotations in agreement), Rb. nt. M. nt. H. de Jager (X/Veduma Medical Advisers) (no access; predominantly critical annotations) (and on appeal Arnhem-Leeuwarden Court of Appeal, 1 May 2018, ECLI:NL:GHARL:2018:4161 (no access)) and, Rb. nt. M. ) (no access; predominantly critical annotation) (and on appeal the Hague Court of Appeal, 3 October 2017, ECLI:NL:GHDHA:2017:2723 (no access)). 5 This concerns the case with number 12/02277.

nl. nl/2016/phr-290313 (last consulted on 16 August 2022). nt. J. M. nt. H. de Jager and TVP 2018, p. 112 ff. M. Simons (alternating annotations). Your Council's judgment was rendered in the appeal in cassation against the Amsterdam Court of Appeal, 13 September 2016, ECLI:NL:GHAMS:2016:3739, TvGR 2017, p. 248 ff. A. nt. H. de Jager (no access; mainly critical annotations). P. Wijne, Liability for care-related damage, The Hague: Boom Legal 2021, p. 888-906. See also, chronologically, A. Wilken, 'The significance of the Personal Data Protection Act for the medical assessment process in the event of personal injury', TVP 2008, p. 109-117, A. Wilken, A. J. Akkermans and J. Legemaate, Medical assessment process in Personal Injury. Inventory of existing standards, bottlenecks and possible solutions, De Letselschade Raad 2010, p. J. Weering and E. Wytema, 'Life sphere, medical data and file', PIV-Bulletin Special (June 2010), p.

3-8, A. ', TvGR 2011, p. J. Wijnakker, 'Handling medical information in accordance with Article 8 ECHR', VR 2012, p. M. Simons, "The Blacksmith's Secret. ', TVP 2014, p. 93-101, A. , The Hague: Bju 2015, p. 51-72, 95-128 and 157-187, A. Wilken, 'The medical assessment process for personal injury; a number of subjects in more depth', VR 2016, p. 182-188 and GS Special agreements, art. 7:456 BW (updated through March 2, 2022), no. P. Wijne). 8Stb. 2015/407 and Stb. 2015/525. 9 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC . 10 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

11 A significant part of the case law referred to in footnote 4 concerns the application of the Wbp. 12 In addition, art. 843a DCCP has a role, as has already been shown above. The effectuation of the entitlement under art. 843a paragraph 1 DCCP, by definition requires a legal process. In view of the case at hand and with a view to the manageability of this document, however, I limit myself to obtaining access out of court, so that I can use Art. 843a Rv disregarded. The case law relating to art. 843a DCCP, is discussed where it is relevant to the issues at hand. Obligations to submit documents pursuant to art. 21 and 22 DCCP as well as the so-called enhanced obligation to state reasons are not discussed here. Violation of these obligations leads to a sanction in the procedure; these obligations cannot, unlike, for example, the GDPR, lead to an actually enforced inspection. 11 of the statement of A-G Langemeijer mentioned in footnote 5 (following an appeal in cassation withdrawn prior to the judgment being given).

nl/over-het-big-register/digits (last consulted on 16 August 2022). This concerns doctors and other professionals who appear in the so-called BIG register (such as physiotherapists and nurses) (art. 47 paragraph 1, preamble, in conjunction with paragraph 2 BIG Act). This concerns professionals within independent practices and hospitals, but also, for example, insurance physicians. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. C. F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 278-281. 16 See RTG Eindhoven 11 December 2019, ECLI:NL:TGZREIN:2019:74, para. 5. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. C. de Jong). The wording of art. 47, paragraph 1, opening words and under b, BIG Act is of recent date. It applies from 1 April 2019 as a result of art. X, preamble and under 2 of the Act of 11 July 2018 amending the Individual Health Care Professions Act in connection with the improvements made to disciplinary law as well as improvements with regard to the functioning of the Act (Stb.

2018 /260, entry into force: Official Gazette 2019/111). I have not found any transitional provisions. In the present case, the complaint was submitted to the RTG on 27 June 2019, so it must be assumed that the amended art. 47 paragraph 1, opening words and under b, BIG Act applies. The RTG also assumed this in para. 5. of the decision in the first instance (RTG Eindhoven 11 December 2019, ECLI:NL:TGZREIN:2019:74). 18 See RTG Eindhoven 11 December 2019, ECLI:NL:TGZREIN:2019:74, para. 5. nt. H. Hubben and CTG June 9, 2015, ECLI:NL:TGZCTG:2015:181. Both decisions were made before the amendment of the law mentioned in footnote 17, which meant that the words “acting or omissions in that capacity [in the capacity of healthcare practitioner, A-G] are contrary to the interests of proper performance of individual healthcare” (emphasis added by me, A-G) in art. 47, paragraph 1, opening words and under b of the BIG Act have been replaced by “any act or omission other than as referred to under a, contrary to what befits a proper professional”.

See Parliamentary Papers II 2016/17, 34629, no. 3, p. F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 282-306. F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 280. 21 Art. 53 paragraph 1 BIG Act was amended with effect from 1 April 2022 by art. I under D of the Act of 22 December 2021 amending the Act on the professions in individual health care in connection with the organization of the regional disciplinary courts and making a number of other amendments (Stb. 2022/15; entry into force: Stb. 2022/98). 22 Before the amendment of the law referred to in the previous footnote, on the basis of art. 53 paragraph 1 BIG Act determined by order in council which regional disciplinary courts existed. The regional disciplinary court in Eindhoven was designated in the then art. 2, opening words and under e, of the Disciplinary Decree BIG. 23 In view of art.

73 paragraph 1 BIG Act only open to (i) the complainant insofar as he has been declared inadmissible or the complaint has been found to be unfounded (and therefore not insofar as the complaint has been found to be well-founded but the complainant does not agree with the measure imposed) , (ii) the accused and (iii) the inspector of the Health and Youth Care Inspectorate (irrespective of whether he was the complainant in the first instance). F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 317. 24 The notice of appeal must contain the grounds of the appeal (Article 73(2), second sentence, BIG Act in conjunction with Article 19(1), opening words and under c, BIG Disciplinary Decree). Art. 74 paragraph 4 of the BIG Act provides, however, that the central disciplinary court can also rule on parts of the decision of the regional disciplinary court against which no objections have been raised in the appeal.

According to the case law of the CTG, however, the formulation of new complaints on appeal is not permitted. See CTG 14 August 2020, ECLI:NL:TGZCTG:2020:132, para. 3. F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 327-328 this option has only been used 'sporadically'. I share that impression. nt. J. nt. P. nt. J. Hubben (X/IGJ). These precedents are, moreover, irrelevant to the issue at stake in this case. 26 CTG January 29, 2021, ECLI:NL:TGZCTG:2021:42, para. 2. in connection with para. 3. 27 RTG Eindhoven 11 December 2019, ECLI:NL:TGZREIN:2019:74. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 387. 29 Law of November 17, 1994 amending the Civil Code and any other laws relating to the inclusion of provisions regarding the agreement to perform medical acts (Stb. 1994/837 and Stb.

67-68. 32 See also Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 7: “The regulation of the subject matter in the context of contract law means that the envisaged regime will apply in various cases. Agreements within the meaning of this bill are not only concluded for comprehensive treatment relationships, with a long or even in principle indefinite period of time; Agreements with a limited, very specific purpose, for the execution of which actions in the field of medicine must be performed, are also agreements within the meaning of this bill. ” 33 See art. 18 and 19 BIG Act. 34 The term 'hospital' appears in art. 7:462 BW (central liability) for. The second paragraph of that provision contains a definition. This need not be further elaborated here. 35GS Special agreements, art. 7:446 BW (updated through March 20, 2022), no. P. Wijne). 36 See for example Rb. Central Netherlands March 9, 2022, ECLI:NL:RBMNE:2022:887, para.

23. and further, with regard to the question of whether a doctor is a care provider in a specific case as referred to in art. 7:446 paragraph 1 of the Dutch Civil Code, Arnhem-Leeuwarden Court of Appeal 31 August 2021, ECLI:NL:GHARL:2021:8347, para. 7. 37 Cf. B. H. Biesaart, The medical treatment agreement, Deventer: Kluwer 2005, p. 4. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. 111 (J. Legemaate) write: “The WGBO lacks a regulation stating that a care provider-legal person is only a care provider to the extent that he concludes the agreement with the patient and must ensure that a care provider-person provides the help in accordance with the WGBO grants. ” They probably refer to the following comment in Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. ” 38 See, for example, Parliamentary Papers II 1990/91, 21561, no. 6 (Reply), p. 55. E. Tjong Tjin Tai, Volume 7-IV.

Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 402. 39 See Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 28. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. 109 (J. Legmaate). 41 See in this regard expressly Art. 7:446 paragraph 3 of the Dutch Civil Code. ” Such actions must therefore be related to a medical treatment and cannot be the subject of an independent medical treatment agreement. An example concerns Rb. Groningen 24 June 2010, ECLI:NL:RBGRO:2010:BN9168, para. 6 (ambulance transport). 42 See for example Rb. Amsterdam September 1, 2017, ECLI:NL:RBAMS:2017:6400, para. 11. M. Gevers, 'The application of the WGBO in atypical situations', TvGR 1996, p. 9. For various examples, see also B. H. Biesaart, The medical treatment agreement, Deventer: Kluwer 2005, p. P. Wijne, The medical treatment agreement (Mon.

BW B87), Deventer: Wolters Kluwer 2021, p. 8. In The Hague Court of Appeal, 9 February 2022, ECLI:NL:GHDHA:2022:128, para. 5 it was considered that (ortho)pedagogical assistance does not fall within the scope of art. 7:446 paragraph 2, opening words and transactions referred to under a, of the Dutch Civil Code must be counted. In Amsterdam Court of Appeal 21 October 2016, ECLI:NL:GHAMS:2016:4283, para. 9 was rejected as to whether received aliens had entered into a medical treatment agreement with the Salvation Army. Also dismissive with regard to support and guidance in independent living, Rb. East Brabant 25 April 2019, ECLI:NL:RBOBR:2019:2399, para. 2. 3. M. Gevers, 'The application of the WGBO in atypical situations', TvGR 1996, p. 10-11. 45Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 28. 46Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p.

28. 47 Obviously, this does not include cosmetic treatment by a person other than a doctor. For a case where that occurred, see Rb. Amsterdam December 2, 2019, ECLI:NL:RBAMS:2019:9004 (a laser treatment by a beautician). nt. M. Giard, r. 5. 49Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 28. 50Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. 5. 52 Cf. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 394. 53 Previously, this provision was included in art. 7:446 paragraph 5 Dutch Civil Code. It was renumbered on 1 July 2007. See art. II under A of the Act of 8 February 2007 amending Chapter III of the Medicines Act and Section 5 of Title 7 of Book 7 of the Civil Code (Stb.

2007/92; coming into force: Stb. 2007/227) . 54 A. , The Hague: Bju 2015, p. 162-163 and A. Wilken, 'The medical assessment process for personal injury; a number of subjects in more depth', VR 2016, p. 186. A. Wilken's YES annotation at Rb. Rotterdam 4 March 2009, ECLI:NL:RBROT:2009:BI6309, JA 2009/131 (X/IJsselland Hospital). Under 14 of this she writes: “I conclude that an injured party in a personal injury case on the basis of the literal text of art. 7:464 paragraph 2 under b of the Dutch Civil Code also has a right of inspection and blocking with regard to advice from the medical adviser of his counterparty. ” 55 In Parliamentary Papers II 1991/92, 21561, no. 6 (Reply), p. 21 is stated: “The fifth paragraph of article 1653 [now art. 7:446 paragraph 4 of the Dutch Civil Code, A-G] has been replaced by a new paragraph, which ensures that all inspection situations in which the order has been given by someone other than the examiner himself are no longer included in the treatment agreement to which the first paragraph of Article 1653 refers.

” In Parliamentary Papers II 1991/92, 21561, no. 12 (second memorandum of amendment), p. 2 is stated: “Article 1653, fifth paragraph, [now art. 7:446 paragraph 4, A-G] means that there is no treatment agreement if medical examinations are performed on behalf of someone other than the examinee. J. C. de Jong, 'Misunderstandings and solutions regarding the right of access and blocking in civil cases; some practical examples’, TvGR 2005, p. 384. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. M. P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 467. P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. 25. 58 See footnote 55. See also Parliamentary Papers II 1991/92, 21561, no.

11 (further response statement), p. 16. nt. B. nt. A. E. nt. H. nt. C. de Die (X/Univé Schade), para. 1 Your Council considered that it was “the intention of the legislator to leave inspection assignments over which the examiner does not have control himself, outside the scope of the statutory regulation of the treatment agreement – subject to the corresponding provisional application pursuant to art. E. Markenstein, 'The Medical Examination Act: a piece of an (as yet) unfinished puzzle', TvGR 1998, p. 263 and Parliamentary Papers II 1991/92, 21561, no. 11 (further response statement), p. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. M. Gevers). J. , Health Law Handbook, The Hague: Boom Legal 2020, p. M. Gevers). J. C. de Jong, 'Misunderstandings and solutions regarding the right of access and blocking in civil cases; some practical examples’, TvGR 2005, p. 384 and p. P. Wijne, Liability for care-related damage, The Hague: Boom Legal 2021, p.

900. See also A. Wilken's YES annotation at Rb. Rotterdam 4 March 2009, ECLI:NL:RBROT:2009:BI6309, JA 2009/131 (X/IJsselland Hospital), under 13. 62 Anders A. Wilken in her YES annotation to Rb. Rotterdam 4 March 2009, ECLI:NL:RBROT:2009:BI6309, JA 2009/131 (X/IJsselland Hospital), under 13. , where it considers it decisive whether there is an assessment of the state of health. J. C. de Jong, 'Misunderstandings and solutions regarding the right of access and blocking in civil cases; some practical examples’, TvGR 2005, p. 396 argue that partial access should be given to the medical advice insofar as it relates to the assessment of the state of health. I think otherwise, for the reasons stated in the main text. nt. B. nt. A. E. nt. M. Klaassen (X/Levob Schadeverzekering), para. nt. B. nt. A. E. nt. H. nt. C. de Die (X/Univé Schade), para. 2. See also HR 22 February 2008, ECLI:NL:HR:2008:BB5626, NJ 2010/542 (Fortis ASR Schadeverzekering/X), para.

nt. J. M. Klaassen (Fortis ASR Schadeverzekering/X), para. 4. nt. J. Snijders and J. nt. J. nt. E. Tjong Tjin Tai, para. 6. ” See also G. de Groot, 'Room for legal development in civil proceedings at the Supreme Court', NTBR 2016, p. ” 65 Art. 7:464 paragraph 2 under b of the Dutch Civil Code has been amended with effect from 1 March 2006 by the Act of 22 December 2005 amending certain provisions of the Civil Code regarding the agreement on medical treatment and of Article IV of the Act of 17 November 1994, stb. 837 (Stb. 2006/29). The previously applicable text read as follows: “The person subject to the investigation shall be given the opportunity to indicate whether he wishes to be informed of the results and the conclusions of the investigation and, if so, whether he wishes to be the first to know. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no.

467. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. M. Gevers). E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, nos. 465 and 467 and GS Special agreements, art. 7:464 BW (updated through March 20, 2022), no. P. Wijne). C. de Jong, 'The unbearable darkness of the blocking right', TvGR 2011, p. 405 and 411. nt. B. nt. A. E. nt. M. Klaassen (X/Levob Schadeverzekering), para. 3. nt. B. nt. A. E. nt. H. nt. C. de Die (X/Univé Schade), para. 3. 71Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 7. On p. ” 72 See the explanatory memorandum to the Decree of 13 March 2000, specifying situations referred to in Article 464 of Book 7 of the Dutch Civil Code, for which this Article will enter into force later than on 1 May 2000 (Stb. 3). M. Gevers, 'The application of the WGBO in atypical situations', TvGR 1996, p.

12 reads: “According to art. 7:464, the law 'applies mutatis mutandis' to medical acts performed in the context of a medical profession or business 'other than pursuant to a treatment agreement'. The background to this provision is that in the latter case too, people can be involved in the actions of doctors in many and diverse ways. ” 73 In Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 46 are mentioned, among other things: “medical care in prisons, the care of patients who undergo compulsory treatment in a judicial institution for the nursing of detainees pursuant to a decision of the criminal court, the activities in the context of social insurance medicine or child protection”. It is interesting that it also mentions: “acting as an expert witness before judicial authorities”. nt. SI. Gerling, rev. 1. 75 CRvB 16 November 2016, ECLI:NL:CRVB:2016:4349, para.

1. 2. M. Gevers, 'The application of the WGBO in atypical situations', TvGR 1996, p. M. Gevers, 'The application of the WGBO in atypical situations', TvGR 1996, p. 13. P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. 26-27. 78 I have already included the locations of these statements in footnote 4. 79 Art. 12h of the Defense Civil Servants Act and Chapter 9 of the General Military Civil Servants Regulations. 80Parliamentary Papers II 2005/06, 30674, no. 3 (explanatory memorandum), p. 9. 81 On the meaning of fundamental rights for the content of reasonableness and fairness, see among others R. de Graaff, 'The meaning of reasonableness and fairness for the protection of fundamental rights', RM Themis 2016, p. J. de Vries, The agreement in general (Mon. BW B54), Deventer: Wolters Kluwer 2016, no. N. Schelhaas, Reasonableness and fairness (Mon. BW A5), Deventer: Wolters Kluwer 2017, p.

9-11 and GS Law of obligations, art. 6:2 BW (updated June 24, 2021), no. 3 (A. A. Möhring). F. L. L. ), Disciplinary Law Handbook, The Hague: Boom Legal 2022, p. 317, where RTG Amsterdam 2 May 2017, ECLI:NL:TGZRAMS:2017:55 is mentioned as an example. 83 Art. 1 under B of the General Data Protection Regulation Amendment Act (Stb. 2018/247; entry into force: Stb. 2018/248). htm (last consulted on 16 August 2022). The KNMG is the Royal Dutch Society for the Promotion of Medicine, a federation of seven professional organizations for doctors and the association for medical students. The guidelines it has drawn up are authoritative as a form of self-regulation, including in medical disciplinary law and personal injury practice. A. C. A. Kurris, “Dealing with medical data - the practice”, TLP 2017/68. 85 Decree of 10 June 2020, determining the date of entry into force of Articles 15d and 15e of the Additional Provisions for the Processing of Personal Data in Healthcare Act (Stb.

2020/178). 86 Cf. Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 17. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 433. 88 Previously defined art. 7:456 BW that the provision had to take place “as soon as possible”. This phrase has been deleted as a result of art. 1 under B under 1 of the General Data Protection Regulation Amendment Act (Stb. 2018/247; entry into force: Stb. 2018/248). 89Parliamentary Papers II, 2017/18, 34939, no. 3 (explanatory memorandum), p. 63. Cf. C. Hendriks, Administrative health law, Deventer: Wolters Kluwer 2018, p. C. Hendriks). 90 Art. 7:456, last sentence, BW. This sentence has lapsed as a result of art. 1 under B under 2 of the General Data Protection Regulation Amendment Act (Stb. 2018/247; entry into force: Stb. 2018/248). 91 Apparently, the legislator assumed that Art.

15 GDPR applies to all cases where Art. 7:456 Dutch Civil Code applies. It is doubtful whether that is correct, but I will not go into that matter in detail. Suffice it to say that the scope, conditions of application and legal consequences of the right of access of art. 7:456 BW do not automatically correspond to the scope, application conditions and legal consequences of the right of access of art. 14, does not automatically entitle you to copies of documents containing personal data). The fact that these access rights only partially overlap is reinforced by the fact that enforcement of art. 7:456 BW was apparently not considered superfluous at the time of the introduction of the GDPR. 92 Parliamentary Papers II, 2017/18, 34939, no. 3 (explanatory memorandum), p. 63: “[I]n Article 7:456 of the Dutch Civil Code [will] (…) the regulation on the compensation for a copy lapse. The GDPR already provides that the data subject has the right to a copy of the personal data being processed.

2 of the KNMG guideline on Handling medical data. 94 The text of this provision has been amended with effect from 1 January 2020. Previously, the provision contained the words “and include other records containing such particulars therein” instead of “and include other particulars such” (emphasis added by me, A-G). The background to this change is the emergence of electronic medical data. In addition, the provision contained the words "necessary to him" instead of "necessary to the patient". With regard to these changes, see the Act of 5 June 2019 amending Book 7 of the Civil Code, the Youth Act and a number of other laws to improve patient-oriented care and the inclusion of a statutory regulation for the right to inspect the medical file of a deceased person. patient (Stb. 2019/224; entry into force: Stb. 2019/284). 95 B. H. Biesaart, The medical treatment agreement, Deventer: Kluwer 2005, p.

E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 427. C. Hendriks, Administrative health law, Deventer: Wolters Kluwer 2018, p. 220 (S. Nouwt). 2 of the KNMG guideline on Dealing with medical data, which considers good assistance as the primary purpose of the file obligation. 97 Cf. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 427. 10 of the KNMG guideline on Dealing with medical data. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. C. de Jong). 2 of the KNMG guideline on Dealing with medical data. 99 See also art. 2 of the KNMG Guideline on Handling Medical Data.

100 Cf. Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 427. 101Sdu Comment on Personal Injury, art. 7:454 BW (published on July 14, 2021), no. K. J. de Boer and C. Vernooij). 102 In Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 17, although it is stated that “the term “patient record” is a collective term, which includes all forms of registration of patient data used by care providers” and that this refers to “the entirety of registered data relating to a patient”, but later in the In the explanatory memorandum, this is nuanced, as will become apparent below. 103 As of 1 January 2020, various provisions have been put in place with a view to this, including Art. 7:454 paragraph 1 of the Dutch Civil Code, amended.

Instead of 'documents' or 'modest', the term 'data' is now used. See the amending act mentioned in footnote 94. In connection with electronic filing, see also art. 15a ff. Wabvpz. E. Tjong Tjin Tai, Volume 7-IV. Assignment, including the medical treatment agreement and the travel agreement, Deventer: Wolters Kluwer 2022, no. 427. 105 Art. 8 paragraph 1 Wabvpz. 2 of the KNMG guideline on Dealing with medical data. C. Hendriks, Administrative health law, Deventer: Wolters Kluwer 2018, p. 220 (S. Nouwt). 107Sdu Comment Injury damage, art. 7:454 BW (published on July 14, 2021), no. K. J. de Boer and C. Vernooij). 108Parliamentary Papers II 1989/90, 21561, no. 15 (note following the final report), p. 32. 109Sdu Comment Injury damage, art. 7:454 BW (published on July 14, 2021), no. K. J. de Boer and C. Vernooij). 110 Cf. in connection with the last three Parliamentary Papers II 1989/90, 21561, no.

3 (explanatory memorandum), p. 34. 2 of the KNMG guideline on Dealing with medical data. 3 of the KNMG guideline on Dealing with medical data. 113 See Parliamentary Papers II 2017/18, 34994, no. 3 (explanatory memorandum), p. 25. This concerns the explanatory memorandum to the bill entitled Amendment of Book 7 of the Civil Code, the Youth Act and a number of other laws to improve patient-oriented care and the inclusion of a statutory regulation for the right to inspect the medical file of a patient. deceased patient (Stb. 2019/224; entry into force: Stb. 2019/284). 114Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 35. ” 115Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 35. 116Parliamentary Papers II 1991/92, 21561, no. 10 (further provisional report), p. 21-22 in conjunction with Parliamentary Papers II 1991/92, 21561, no. 11 (further response statement), p.

26-27 with regard to the questions from the CDA and D66 fractions. See also B. H. Biesaart, The medical treatment agreement, Deventer: Kluwer 2005, p. P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. 50. 1 (final) of the statement of A-G Langemeijer mentioned in footnote 5 (in response to an appeal in cassation withdrawn prior to the judgment being given). 118Parliamentary Papers II 1991/92, 21561, no. 11 (further response statement), p. 26-27. 119Parliamentary Papers II 1989/90, 21561, no. 3 (explanatory memorandum), p. 35. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. T. Dorenberg). J. , Health Law Handbook, The Hague: Boom Legal 2020, p. T. Dorenberg). P. Wijne, The medical treatment agreement (Mon. BW B87), Deventer: Wolters Kluwer 2021, p. 50. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. T. Dorenberg). 123 In Parliamentary Papers II 1989/90, 21561, no.

3 (explanatory memorandum), p. 35 states: “The purpose of the FONA registration is to enable people who work in a health care institution to learn from the mistakes and near misses that take place in the institution, in order to provide better and safer patients in the institution from now on. 2 of the KNMG guideline on Handling medical data: “When an investigation is conducted into an incident, certain information is generated. The purpose of recording this information is to improve the quality of care by learning from mistakes and near misses. These registrations cannot be regarded as activities relating to the care provided to an individual patient. J. , Health Law Handbook, The Hague: Boom Legal 2020, p. T. Dorenberg). 54 inclusive. 7 of the KNMG guideline on Dealing with medical data. 127 The term 'client' (see art. 1 paragraph 1 Wkkgz) is broader than the term 'patient', now that the Wkkgz comprises a broader palette of care types.

4 of the KNMG guideline on Dealing with medical data. 21. I cannot deduce from this legislative history that with the passage “make note of the nature and circumstances of incidents in the client's file” in art. 10 paragraph 3 Wkkgz means more than is stated verbatim. nt. M. Giard, r. , which ruled that “the care provider [pursuant to art. 10 paragraph 3, first sentence, Wkkgz] should include an autopsy report in the medical file where appropriate. There will be grounds for this, for example, if there has been an incident within the meaning of Article 10(3) of the Wkkgz and the autopsy report contains information that may be relevant for the assessment of the incident. If no such incident has occurred, the care provider is not obliged to add an autopsy report to the file, unless it is necessary to add the report – as another document within the meaning of Article 7:454 paragraph 1 of the Dutch Civil Code.

Gerards et al. ), Sdu Commentaar ECHR. Part I, The Hague: Sdu 2020, p. 909-912 (No. J. Wijnakker, 'Handling medical information in accordance with Article 8 ECHR', VR 2012, p. P. Wijne, Liability for care-related damage, The Hague: Boom Legal 2021, p. 889-891. nt. G. nt. L. L. v France), para. 44, ECtHR 17 January 2012, 20376/05, ECLI:CE:ECHR:2012:0117JUD002037605 (Varapnickaitė-Mažylienė v Lithuania), para. nt. J. nt. C. nt. C. H. v Latvia), paragraph 56. nt. J. Dommering (Gaskin v United Kingdom), paras 38 to 49, ECtHR 28 January 2000, 21825/93 and 23414/94, ECLI:CE:ECHR:2000:0128JUD002182593 (McGinley and Egan v United Kingdom), paras 98-103 and ECtHR October 19, 2005, 32555/96, ECLI:CE:ECHR:2005:1019JUD003255596, NJ 2009/453 (Roche v United Kingdom), paras 155 to 169. 146 ECtHR 20 January 2009, 23815/04, ECLI:CE:ECHR:2009:0120JUD002381504. nt. C. nt. C. Hendriks. 148 ECtHR 23 September 2014, 24453/04, ECLI:CE:ECHR:2014:0923JUD002445304.

149 ECtHR 20 January 2009, 23815/04, ECLI:CE:ECHR:2009:0120JUD002381504 (Uslu/Turkey). 150 ECtHR 20 January 2009, 23815/04, ECLI:CE:ECHR:2009:0120JUD002381504 (Uslu/Turkey). nt. C. nt. C. Hendriks. 152 This is stated in the judgment (see point 6), but is not discussed further. However, the relevance of this fact can be guessed. C. Hendriks writes under 9. that “there is now various indications that Roma women are systematically subjected to sterilization and other forms of inappropriate treatment in health care. It cannot therefore be ruled out that – assuming that the medical records show that the applicants have been subjected to sterilization – the applicants are victims of discriminatory treatment. nt. C. nt. C. H. /Slovakia). C. Under paragraph 2, Ploem writes: “(…) This ruling has clear consequences for the privacy regulations of the states that have acceded to the ECHR. After all, the ruling means that the right to a copy of data in personal files must be guaranteed at the level of those regulations themselves.

101-102. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p. 101-102. 165 Recital (15) GDPR, where the words “this Directive” have been used in error. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p. 112. 167 This is – rightly – taken as the starting point in the KNMG guideline on Dealing with medical data. ) (art. 18. 169 See also – at the time under the Wbp – the JA annotation by A. , at Rb. Zutphen 29 January 2010, ECLI:NL:RBZUT:2010:BL1734, JA 2010/85. 45 with regard to the period within which the inspection as referred to in art. 7:456 of the Dutch Civil Code must be granted and the question of whether a fee may be charged for this, in which context in the legislative history is aligned with the rules from the AVG. ) (art. 35 inclusive. R.

Central Netherlands March 24, 2021, ECLI:NL:RBMNE:2021:1354. In Rb. nt. C. Raat, para. 6, on the other hand, seems to be taken for granted that Art. 15 para. 3 GDPR entitles you to copies of documents, with the consent of the annotator. ) (art. 35 inclusive in a case in which the Wbp still applied. 0 of 18 January 2022, marginal 23. pdf (last accessed August 16, 2022). 0 of January 18, 2022, marginal 150. nt. J. Dommering (Nowak/Data Protection Commissioner), which concerned written answers to a professional examination and the examiner's comments on those answers. 28. nt. M. Hennekens (The Reformed Church (Free)/X), para. 14. 19. nt. C. nt. C. H. /Slovakia), paragraph 47. 183 On the dynamics between the ECtHR and the ECJ in this area, see B. van der Sloot, 'We are two friends, you and me: the intimate tango of the two European courts in the field of privacy and data protection', SEW 2021 , p.

582-594. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p. 103. 185 See recital (26) GDPR. nt. J. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p. 105-106. nt. J. nt. J. nt. M. Hennekens, TVP 2018, p. 112 ff. M. nt. H. de Jager (Waterland Hospital). nt. J. M. Hennekens, TVP 2018, p. 112 ff. M. nt. H. 80. nt. J. M. Hennekens, TVP 2018, p. 112 ff. M. nt. H. de Jager (Waterland Hospital). nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 ff. E. Brouwer & F. Zuiderveen Borgesius. nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 ff. E. Brouwer & F. S. /Minister for Immigration, Integration and Asylum), point 35. nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 ff.

E. Brouwer & F. S. /Minister for Immigration, Integration and Asylum), point 40. nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 ff. E. Brouwer & F. S. /Minister for Immigration, Integration and Asylum), paragraphs 43 and 44. nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 ff. E. Brouwer & F. S. /Minister for Immigration, Integration and Asylum), paragraphs 45 and 46. 195 A. Wilken, ‘The medical assessment process for personal injury; a number of subjects in more depth', VR 2016, p. 182-188. nt. J. nt. M. Hennekens, TVP 2018, p. 112 ff. M. nt. H. de Jager (Waterland Hospital), para. 3. 197 Cf. M. Simons (p. ) (art. 81 RO). ) (art. 28. 200 D. M. Klingenberg consider the judgment in their JHG annotation to be incorrect in the light of the definition of 'personal data', as it revolves around traceability to the data subject. E. Brouwer & F.

Zuiderveen Borgesius are also critical in their annotation in Asylum and Migrant Law. 2 (p. 300) they write, among other things: “The Court of Justice does not provide clarity in practice by making the distinction between legal analysis with personal data and legal analysis without personal data. ” JBP annotator G. Overkleeft-Verburg also has reservations under marginal number 5. See also E. ', P&I 2014, p. M. Simons, The Blacksmith's Secret. ', TVP 2014, p. " verify if he only has access to the personal data used in the analysis, but not to the analysis itself” (p. 98). See also M. Jansen, 'Judgment ECJ on the concept of personal data and the nature of the right of access', P&I 2015, p. 200-206 and M. Jansen, 'How the least explicit statement about the right of access may provide the most insight', P&I 2019, p. 10-16. nt. J. M. Hennekens, TVP 2018, p. 112 ff. M. nt. H. 80. 202 Cf. the JHG annotation by D.

M. nt. A. nt. G. Overkleeft-Verburg, JHG 2015/48 and Asylum and Migrant Law 2014, p. 299 ff. E. Brouwer & F. S. : “In our opinion, there are two forms of 'personal data'. , (…). Secondly, the further processing of those data in the light of the circumstances relating to the situation of the data subject, which must also be verifiable as to the correctness and lawfulness of the processing. (…) Whether the second form is also present in the legal analysis of the minute depends on whether it is merely an abstract interpretation of the law or whether the analysis (also) relates to the applicant's situation. If the latter is the case, then in accordance with the interpretation of the Privacy Directive, this form must also be designated as 'personal data'. ” See also the annotation by H. nt. J. nt. M. Hennekens, TVP 2018, p. 112 ff. M. nl 2018-0138 (Waterland Hospital): “A registered opinion (or in other words: 'assessment' or 'analysis') about a person (or about his or her state of health) in a file can also be entered as personal data.

” 203 See recital (63). 204 Cf. E. Brouwer & F. Zuiderveen Borgesius in their annotation in Asylum and Migrant Law at the ECJ 17 July 2014, C-141/12 and C-372/12, ECLI:EU:C:2014:2081, AB 2014/365 m. nt. A. nt. G. nt. D. M. Klingenberg and Asylum and Migrants Law 2014, p. 299 et seq. S. 2 (p. 300, right column). 205 I refer, among other things, to art. 5 ('Principles regarding the processing of personal data'), Art. 6 ('Lawfulness of the processing') and Art. 7 (“Conditions of Consent”). 206 I let Prime Minister Rutte speak (Acts II 2020/21, no. 45, item 4 (Statement of the Prime Minister and report of the Interrogation Committee on Childcare Allowance), p. 64): “The Dutch Data Protection Authority has established that Allowances in has unlawfully processed three nationality processing operations. (…) The use of nationalities by the tax authorities was not aimed at making distinctions on the basis of ethnicity or race, the AP concludes.

” It is to be hoped that access to those involved cannot be denied on the grounds that this is an 'analysis' that cannot be checked for accuracy or rectified. nt. J. Dommering (Nowak/Data Protection Commissioner). 208 Cf. nt. J. Dommering (Nowak/Data Protection Commissioner). In marginals 60 to 63, the AG nevertheless concludes that the comments of the examiner must be regarded as personal data of the examination candidate. 209 Likewise M. Jansen, 'How the least explicit statement about the right of access may provide the most insight', P&I 2019, p. 10-16. nt. also point in this direction. J. nt. JAN. Baas (‘SS’ SIA/Valsts ieņēmumu dienests), points 63 to 74. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p. 250. R. M. Verhey, The General Data Protection Regulation in a European and Dutch perspective, Deventer: Wolters Kluwer 2018, p.

8, Rb. East Brabant 29 June 2016, ECLI:NL:RBOBR:2016:3387, para. , Rb. Overijssel April 6, 2021, ECLI:NL:RBOVE:2021:2525, para. 10. and Rb. The Hague 26 May 2021, ECLI:NL:RBDHA:2021:5308, para. 5. nt. R. nt. N. ), para. 2. 218 See A. Wilken in her YES annotation to Rb. E. Santen, ‘At the intersection of fundamental rights’, PIV bulletin 2014-1, p. 1-7, the response to this in H. de Jager, 'Response to article by A. Santen in PIV-Bulletin 2014, 1', PIV-Bulletin 2014-2 , p. E. Santen, ‘Postscript Santen’, PIV bulletin 2014-2, p. 22-23 and Amsterdam Court of Appeal 13 September 2016, ECLI:NL:GHAMS:2016:3739, TvGR 2017, p. 248 ff. A. nt. H. de Jager (Waterland Hospital), para. 6. 16 of the statement of A-G Langemeijer mentioned in footnote 5 (following an appeal in cassation withdrawn prior to the judgment being given). P. Wijnakker, 'Viewing medical information: not via the equality of arms principle', Injury & Damage 2011, p.

J. Wijnakker, 'Handling medical information in accordance with Article 8 ECHR', VR 2012, p. L. nt. M. ), under 11. P. Wijne, Liability for care-related damage, The Hague: Boom Legal 2021, p. 899. nt. A. 's reasoning. ', TVP 2010, p. 45-46 and its YES annotation to Rb. Utrecht November 17, 2010, ECLI:NL:RBUTR:2010:BO5222, JA 2011/50 (X/MediRisk). E. Santen, ‘At the intersection of fundamental rights’, PIV bulletin 2014-1, p. 1-7, the response to this in H. de Jager, 'Response to article by A. Santen in PIV-Bulletin 2014, 1', PIV-Bulletin 2014-2, p. E. Santen, ‘Postscript Santen’, PIV bulletin 2014-2, p. nl annotation by H. de Jager at the Amsterdam Court of Appeal 13 September 2016, ECLI:NL:GHAMS:2016:3739, TvGR 2017, p. 248 ff. A. nl 2016-0363 (Waterland Hospital). 17 of the opinion of A-G Langemeijer mentioned in footnote 5 (following an appeal in cassation that was withdrawn prior to the judgment being given).