Criminal Defense Attorney: Breach of Professional Confidentiality

Breach of professional confidentiality is a criminal offense under Article 272 of the Dutch Criminal Code ( Dutch Penal Code). This article provides:

“Any person who intentionally breaches a secret that he knows or has reasonable grounds to suspect he is obligated to keep confidential by virtue of his office, profession, or legal requirement, or by virtue of a former office or profession, shall be punished by imprisonment for a term not exceeding one year or a fine of the fifth category.”

It follows from the legislative history that the disclosure of a secret within the meaning of Article 272 of the Dutch Penal Code be interpreted as the provision of confidential information to another person who is not authorized to access it. The manner in which this occurs is irrelevant.

For a conviction for breach of official secrecy, the following, among other things, must be established:

1. There is such a thing as a secret: A secret is information that is not intended for disclosure. In this context, it is not only the content of the information that matters, but also the context in which it was obtained. Thus, information that may later become public can still be considered a secret at the time it is disclosed.

2. The suspect was subject to a duty of confidentiality: The suspect must be subject to a duty of confidentiality by virtue of his or her office, profession, or a statutory requirement. It is also required that the person in question knew or should reasonably have suspected that he or she was subject to a duty of confidentiality.

3. The defendant intentionally breached that confidentiality: For intent to be established, it is sufficient that the defendant was aware that confidential information was being disclosed to someone who was not authorized to receive it. It is not required that the defendant intended to cause harm.

Doctors are subject not only to Article 272 of the Criminal Code, but also to Article 7:457 of the Civil Code and Article 88 of the Act on Professions in Individual Health Care. Based on these provisions, doctors may use medical information only for the purpose for which it was provided. The duty of confidentiality may only be breached with the patient’s consent, pursuant to a statutory provision, or in the event of a conflict of duties, and such consent must be given voluntarily. In the event of a conflict of duties where the physician feels compelled, for example, to involve the police due to criminal offenses committed by or against the patient, a breach of the duty of confidentiality is permitted only if there is an immediate danger to the patient or others that cannot be averted by any other means. In any case, the breach must never go beyond what is necessary for the purpose in question.

There is no breach of professional confidentiality when treating physicians disclose information to other persons, physicians, or (para)medical professionals directly involved in the treatment, provided that such disclosure is necessary for the treatment (Art. 7:457(2) of the Dutch Civil Code).

In the case of deceased patients, the duty of confidentiality continues to apply and cannot be waived by the heirs. In some cases, the patient’s consent may be presumed.

Professional confidentiality in healthcare applies not only to doctors, but also to:

• Dentists

• Pharmacists

• Health Care Psychologists

• Psychotherapists

• Physical Therapists

• Midwives

• Nurses

The duty of confidentiality for attorneys is codified in Rule 3 of the Rules of Professional Conduct. Rule 3.1 states:

“Under the law, the ‘ lawyer ’ is bound by a duty of confidentiality; thus, the ‘ lawyer ’ must maintain confidentiality regarding the details of cases he handles, the identity of his client, and the nature and scope of the client’s interests.”

Rule 3.3 lists a few exceptions. A “ lawyer ” is free to disclose information obtained in confidence to third parties if:

• to the extent that the proper performance of the task assigned to him justifies it;

• provided that the client has no objection to this when asked; and

• to the extent that this is consistent with sound professional practice.