Lawyer article 96 of the BIG Act

Article 96 of the BIG Act contains two different criminal offenses. They are defined in the law as follows:

“ Section 1: Any person who, when performing acts in the field of individual health care, unnecessarily causes harm or a significant risk of harm to the health of another, shall, if he knows or has serious reason to suspect that, when performing those acts, he causes harm or a significant risk of harm to the health of another, be punished with a prison sentence of not more than two years or a fine of the fourth category.

Article 2: Any person who, when performing acts in the field of individual health care, unnecessarily causes harm or a significant risk of harm to the health of another person, shall be punished with imprisonment of up to one year or a fine of the third category.

Article 96 of the BIG Act aims to protect patients from reckless health care providers. The offence mentioned in paragraph 1 is a crime. It requires that the healthcare provider knew or had serious reason to suspect that his actions could be harmful. The offense referred to in paragraph 2 does not impose that requirement and is an offense.

The law describes various (maximum) penalties:

• In case of unintentional violation of Article 96 of the Healthcare Professions Act: imprisonment of up to one year or a fine in the third category (paragraph 2).

• In case of violation of Article 96, paragraph 1 of the Healthcare Professions Act: a prison sentence of up to two years or a fine in the fourth category.

• In case of violation of Article 96 of the Healthcare Professions Act, paragraph 1, if the act results in serious bodily harm: a prison sentence of up to four years or a fine in the fourth category (paragraph 4).

• In case of violation of Article 96 of the Healthcare Professions Act, paragraph 1, if the act results in death: a prison sentence of up to six years or a fine in the fourth category (paragraph 5).

Furthermore, the convicted person may be dismissed from his profession (paragraph 3).

For BIG-registered persons, prosecution under Article 96 of the BIG Act will often coincide with disciplinary proceedings.

Article 96 of the BIG Act applies to persons who perform acts in the field of individual healthcare. It does not matter whether that person is also registered as a healthcare provider in the BIG register. Non-BIG registered persons can also be prosecuted for article 96 of the BIG Act.

Article 96 of the BIG Act only applies to “acts in the field of individual healthcare”. This must be interpreted broadly. All actions and omissions of the professional fall under it, such as advising but also failing to act (see, for example, District Court Zutphen 9 November 2012, ECLI:NL:RBZUT:2012:BY2768, TvGR 2013/6, with commentary by JP van Barneveld).

Section 96 of the BIG Act only applies if someone performs risky care acts "out of necessity. At its core, this includes non-acute care provided by unauthorized personnel. For example, a qualified doctor performing surgery will not quickly be prosecuted for article 96 Wet BIG. On the other hand, an act is quickly 'out of necessity' if someone commits fraud during the application process, starts working as a doctor or as a nurse without having the proper papers to do so, and then starts performing (unauthorized) reserved acts (e.g.: Rb Zutphen 9 November 2012, ECLI:NL:RBZUT:2012:BY2768 and Rb. Overijssel December 13, 2021, ECLI:NL:RBOVE:2021:4681). Alternative, unproven and high-risk treatments may also qualify as "beyond necessity. See, for example, Court of Appeal Arnhem-Leeuwarden October 9, 2015, ECLI:NL:GHARL:2015:7562.

Conversely, 'necessity' usually does exist in acute situations, even if the caregiver on site is unskilled, according to the legislative history. In those cases, therefore, one need not readily fear prosecution for Section 96 of the BIG Act.