Section 96 of the BIG Act

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

"Paragraph 1: The person who, in the performance of acts in the field of individual health care, causes harm or a significant likelihood of harm to the health of another, without necessity, shall, if he knows or has serious reason to suspect that in the performance of such acts he causes harm or a significant likelihood of harm to the health of another, be punished by imprisonment for not more than two years or a fine of the fourth category.

Paragraph 2: The person who, in the performance of acts in the field of individual health care, causes harm or a significant risk of harm to the health of another without necessity, shall be punished by imprisonment not exceeding one year or a fine of the third category."

Other components

The term "when performing acts in the field of individual health care" in Article 96 of the BIG Act should be interpreted broadly. It includes everything a healthcare provider does or fails to do with respect to a patient, including counseling. This also means that if a healthcare provider fails to carry out a necessary treatment or action and this results in damage to the physical or mental health of the patient, this conduct falls under the penalty provision for non-qualified healthcare providers. (e.g. Rb. Zutphen November 9, 2012, LJN BY2768).

(Criminal) liability under Section 96 of the BIG Act also requires a causal link between the harm suffered by the patient and the perpetrator's act or omission. This means that the perpetrator's act or omission may have formed an indispensable link in the occurrence of the damage. Moreover, it must be possible to establish that the injury was caused with a substantial degree of probability by the actions of the healthcare provider (HR 04-04-2017, ECLI:NL:HR:2017:585, cf. H.D. Wolswijk).

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.

Article 96 of the BIG Act criminalizes causing harm to the health of a person receiving medical care if the healthcare provider is not registered in the official register according to Article 3, paragraph 1. This also applies to healthcare providers who are registered, but who exceed their expertise as stipulated in Chapter III, thereby causing harm to the health of the patient.

According to article 96 paragraph 2 of the BIG Act, it is punishable for a person who is not registered in a register to cause harm or a significant risk of harm to the health of another person without necessity when performing acts of health care. This is considered an offense (art. 102(2) BIG Act). If the perpetrator knew or had serious reason to suspect that the act could be harmful, the act is considered a crime (art. 96 paragraph 1 BIG Act jo. art. 102 paragraph 1 BIG Act).