What is medical criminal law?
Medical criminal law is the collective term for all criminal cases with a medical aspect. It usually concerns individuals working at or for a healthcare institution who commit a criminally culpable act or omission during their work. Examples include medical blunders—such as a patient dying during surgery due to a surgeon’s error—or the performance of a specific medical procedure by an unauthorized person, which sometimes occurs in cases of euthanasia. Medical criminal law ranges from intentional acts in violation of the law to the failure to observe the required duty of care.
Not only an employee, but also the legal entity for which they work—for example, a hospital—can be involved in criminal prosecution. The Public Prosecution Service may take the position that the legal entity has (also) acted or failed to act in a criminally culpable manner.
The role of medical criminal law is limited. Given the possibilities of disciplinary settlement and administrative enforcement, criminal prosecution will, in principle, only take place in cases involving injury or where the patient has died as a result of errors made within healthcare.
Who investigates crimes within medical criminal law?
Medical care is primarily supervised by the Health and Youth Care Inspectorate (IGJ). It monitors the quality and safety of care. However, if a suspicion of a criminal offense arises during this supervision—possibly due to abnormal complications, an unexpected death, or other serious consequences of medical interventions—this will be reported to the Public Prosecution Service.
The Public Prosecution Service, in collaboration with the IGJ and the police, will then launch a criminal investigation. This investigation is led by the medical public prosecutor, who specializes in this very specific area within criminal law.
Criminal investigations are further supported by the Medical Affairs Expertise Center in Rotterdam. The expertise center has the following tasks, among others:
- advising the Public Prosecution Service on the settlement of medical cases in all their facets;
- building, maintaining, and organizing expertise;
- stimulating and advising the public prosecutor’s offices in developing and implementing local policies and local agreements;
- contributing to the development of national policy.
Before initiating criminal prosecution, the medical public prosecutor will always first submit the case to the Expertise Center.
What is the difference between disciplinary law and medical criminal law?
When you, as a doctor, nurse, or other healthcare provider, commit an error—whether intentional or not—within your professional practice, criminal prosecution will not always follow. In the majority of cases, the matter will be settled through disciplinary law. Although both legal proceedings aim to assess the conduct of healthcare professionals and sanction errors, they are fundamentally different in terms of their purpose, nature, and consequences.
While medical criminal law serves the classic penal goals of retribution and prevention, disciplinary law is a disciplinary system. Its purpose is to ensure that actions are carried out in accordance with all professional standards. A disciplinary procedure will start after a complaint has been filed against you. This can be done by a patient, a client, or a supervisor such as the IGJ. Following that complaint, an internal investigation will be launched, in which you as a healthcare provider are obliged to cooperate. The complaint will ultimately be handled by a disciplinary board. If it is declared well-founded, you will not receive a punishment—such as you would after a criminal conviction—but you may receive a warning, reprimand, or (temporary) suspension. You can also be removed from the BIG register.
It is possible that a disciplinary procedure and a criminal procedure are running against you at the same time. Since your rights and obligations differ in both procedures, it is important to seek advice on this. Feel free to contact us without obligation.
Are you allowed to just share medical data with the police or justice authorities?
When you are involved in a criminal investigation, your cooperation will be requested. Apart from the fact that as a suspect you may invoke your right to remain silent at any time, you may also be bound by a duty of confidentiality based on your profession. The rules regarding the professional secrecy of healthcare providers are laid down in the Medical Treatment Contracts Act (WGBO) and the General Data Protection Regulation (GDPR).
Even if you would like to make a statement, it is not always possible. Breaking professional secrecy is a disciplinary offense and is also an independent crime. It is therefore in your interest not to immediately comply with a request or demand from the police to make a statement. First, seek advice from a criminal defense lawyer with knowledge of medical criminal law.
Why is it wise to hire a lawyer if you are suspected of a criminal offense?
Medical criminal law is a very specific area within criminal law and therefore requires a lot of specialized knowledge. Medical criminal law has various interfaces with disciplinary law, administrative law, and civil law. A criminal defense lawyer who can assist you throughout the entire procedure and advise you on your rights and obligations within the criminal investigation is therefore of great importance. In the criminal case, the central question will be whether you have acted or failed to act in a culpable manner. That question is often not easy to answer and requires a proper analysis by a knowledgeable criminal defense lawyer. Please contact us.
