There is a gap in medical legislation regarding enforcement of quality control and accountability. Due to an absolute right to confidentiality and professional silence, doctors are able to conceal misconduct, medical errors, and even criminal behavior. Victims of medical malpractice often have their medical files incomplete or altered, hindering investigation and legal recourse. While laws exist, they can be arbitrarily respected due to a "conspiracy of silence" that protects doctors. This lacuna in legislation allows misconduct to continue without proper accountability. Reform is needed to limit confidentiality rights when used to conceal crimes and restrict this space for improper behavior.

1. The Lacuna of Medical Justice. MEDICAL PROGRESS HURTS WHAT IS IN IT’S WAY.
When somebody is visiting a physician, one is risking to fall into the hands of a career-adventurer?
Lectori Salutem! The writing underneath is about the gap in medical legislation concerning enforcement.
Medical care is fallible, that is spoken out loud rarely, but simply put also with the development of medical
knowledge medical insights and questions regarding treatment become more and more complex. Next to
´normal´ medical injury of harm because of unforeseen circumstances, there are also treatments wíth patient-
consent wherefore no treatment-protocol is yet, because it is ´new´ and whereof the out coming of a treatment
also can involve unforeseen risks. But if nothing is done the result can be fatal as well for a patient, and always
there is a certain risk for failure. We should not start to argue on that point, but the progress of issues with
medical injury of harm in general can get obscure to a certain level already. But how come medical activities can
happen without patient-consent, in which the activities are not necessary related directly to the treatment of
the pathology? Why? This writing exposes a collection of statements coming from various experts regarding the
issue around medical injury of harm, and with the total summary is tried to give an answer on that question.
Above all, where we have to be sharp upon is, is on one hand to make a clear separation between ‘normal’
medical errors regarding medical injury of harm and on the other hand causal gross negligence and/or medical
violation; and next to that medical injury of harm has to be investigated when happening: why did something
went wrong, and how we can learn from that situation, and how such specific medical information can be used
anonymously spread nationwide to function in a preventive knowledge-oracle for other doctors after. This also is
giving sense to victimization. The patient-safety therefore has to be put central in the liability definition by law.
But in any case we have to get rid of gross negligence and career-adventurism (also clandestine) in disadvantage
of patient by doctors acting with wrongful awareness of the existing excessive cult of protection.
That époque is a long time ago, that we had a so called ‘I’m Doctor Mess-around’, and next to that the excising
cult of covering up of the aspect of trial-and-error of those days in the 19th century. But the legislation from
those days has not developed at the same speed along with the medical progress towards the modern values of
rights and awareness. In the beginning the oath of Hippocrates was nearly literally part of the (Dutch) book of
legislation, where gradually from in replacement a medical legislation came into existence. First the rights of a
patient were a derivation of the duty of care for a doctor. Finally since April 1st (!) 1995 the WGBO (Legislation
Agreement Medical Treatment) came into practice, wherein is described the legislation regarding medical
treatment for doctors and patient. After the case of a certain Dr. Jansen Steur 2003 there was added a Code of
Behavior how to deal with medical injury of harm (GOMA). But even then, anno 2016, medical abuses can have
their existence. The absolute use of the professional right of silence enables the right claiming that privilege in
procedure when such abusive issues are at hand, and thus is that absolute setting providing the room for this.
So to speak there is an excessive setting of cult of protection, also being called the conspiracy of silence, when
(unwanted) out comings of a treatment are with medical injury of harm in result; by which causal investigation
after medical errors even can be hindered. That awareness of that extreme setting for doctors also provides
room for medical unlawful behavior. Technically speaking these practices are being tolerated by ‘enforcement’.
The medical scandals which came up over the last decades in the Netherlands (with gratitude for the modern
communication tools) all appeared to have continued (forth) in existence under the warm blanket of the
Conspiracy of Silence. That conspiracy of silence as phenomena was recognized by the (impotent) Inspection of
Healthcare IGZ in 2015 as still going. Apparently after the inauguration speech of Prof. Leegemate in 2006 at the
VU Amsterdam with first quotes regarding the existence of the cult of silence after medical injury of harm
(unwanted out comings with damage after treatment) occurs. Unfortunately not so much has changed… As an
expert of experience of medical injury of harm I went looking for answers how come this can happen, and that in
spite of a WGBO (and the up following GOMA) today still that an evil/abusive praxis can be going on in secret.
The collection underneath with reference of sources from expert messages put together make clear where the
‘leak’ is in medical legislation. That results ABSOLUTELY nót into a conspiracy theory or an explicit conspiracy-
praxis to deliberate harming and secondary victimizing of patient-victims after. But we do can speak about a
certain implicit code of (deliberate and conscious) silence within an actual setting of legislation and policy. To
start telling tales about malpractice among medical practitioners of profession is equal to committing career-
suicide. With this setting practitioners of medical profession are free to do as they please in their dysfunction far
beyond limits, partly also because the government in general speaking is very negligent in enforcement.

2. THE LACUNA IN LEGISLATION BY WHICH QUALITY CONTROL IN MEDICAL ISSUES FAILED TO KEEP UP
If (without a situation of emergency) operations are done without patient-consent, unlawful acting is.
- Prof. Dr. B. Smalhout in ‘Medical Assault’ (Medisch Mishandelen (René Steenhorst 1993)): Criminal behavior
can occur in all layers and circles of society; including and sometimes specifically in the medical domain. It is a
regular tendency to turn a blind eye to physicians within the own limited circle of profession. (Cult of silence.)
- There is a (tort) cult of silence around when medical injury of harm occurs, partly because of Insurance
technical motives (inauguration speech 2006 Professor Mr. Johan Leegemate VU Amsterdam).
- The Ombudsman Hilversum (2007): Almost 70% of the medical files of victims of medical injury of harm are
incomplete or adapted in such way the causal reason of medical injury of harm cannot be defined in court.
- In medical disciplinary court only the original medical file is used in the judgment upon medical activities.
When that file is incomplete or even manipulated, then the victim has ‘bad luck’ (!). This is being confirmed by a
lawyer in Margraten I spoke. (In the Netherlands medical criminal law is not done: everything a priori has to be
done by the disciplinary court –the office of justice has even a forcing policy for- , by which the improper
behavior (deliberately) will and can be covered-up. (Or has no juridical consequences in result really after…)
When a case of medical injury of harm happens within a medical institution protocols and regulation are applied
arbitrarily by the management as well as the performers, equal to being partners in crime. (Speech by prof.
Leegemate as the chairman of the association for healthcare-justice April 17th 2009.)
- When unwanted results arise with medical injury of harm in consequence, the victims of medical injury of harm
directly get a psychiatric file on their head. No further research has to done after this finding, because in a many
times larger research of NIVEL (Prof Friele 2009) this was a finding too, but it is not allowed to draw conclusions
from. (Prof. Jan van Dijk UvT ‘Lackings in Victim Support’ ( Leemtes in de Slachtofferzorg 2009)
- Ton van Dijk in ‘Medical errors and how they could have been prevented’ (Medische missers en hoe die
voorkomen hadden kunnen worden (2007)): by constitutional provision doctors always have to offer a solution,
and if that solution cannot be offered for the medical problem of that patient, then psychiatrization of the
patient with her/his problem and all is the solution and explanation for the medical complaints.
- Mr. Pieter Van Vollehoven in ‘Here unsafe?! Impossible!’ ( Hier Onveilig?! Onmogelijk! 2012): With each
scandal coming up it shows out again: the government (by which their monopoly upon prosecution and violence
is claimed) has subcontracted to the sectors of profession themselves the responsibility of the ground law
provision of guarantee and monitoring (right) of safety for the individual civilian. And in addition to that the
government is also negligent to ensure that the control and enforcement also really have a decent and an
effective implementation. Each time a case is coming up, financial motives (personal profit and thus also
apparently the career-adventurism of doctors apparently) were placed above the right for safety for the civilian.
( And if such a case gets public, the case gets received with lots of political squabbling, eventually even a new
rule will be invented for… But tackling the root of the problem? No way!) Mr. Van Vollenhoven on television: in
the Nederland (in general)it is a poor situation how whistleblowers are treated (2016). (Victims of medical injury
of harm arrive into a kind of whistleblowers position when reporting medical calamities.)
- IGZ Inspector-General Ms. R. Van Diemen in Zembla documentary November 4th 2015 Calamities in the
hospital UUMC ( ‘Ziekenhuiscalamiteiten’) concerning the silencing of the warning report of the honorable Dr. V.
Vreeswijk of that hospital at IGZ in 2014: Conspiracy of Silence is an activity which as phenomena still can occur;
telling around stories about what’s going on under practitioners within the medical sector will be sanctioned by
the Group of profession. The conspiracy of silence thanks its existence grace to that policy. And that in fact also
was demonstrated with the written down experiences of Professor B. Smalhout in the books ‘Rebel against our
Will’ (Rebel Tegen Wil en Dank (1992)) and ‘Medical Assault’ (Medisch Mishandelen (1993) R. Steenhorst).
- The confidentiality (medical) in the first place is meant to serve the image of the group of profession. (The
interest of patients is consequently subordinate to that.) Only when continuing to remain silent is harming the
image of the Group of profession, because a matter is already out in the open and in the publicity, only then the
confidentiality may be breached. (Ms. mr. Charlotte Nortier Phd The Medical Confidentiality 2009). REMARK:
The medical confidentiality is still quiet absolute. After the promovendi-script of mr. Wilma Duist Phd. (2003)
finally child-abuse can be reported internally in consultation and after the Tristan vd V. –shooting (2011) an
acute terroristic threat is allowed to be reported. But the Dutch politicians are against to limit the rather
absolute confidentiality any further. When Mr. Fred Teeven (for safety reasons) made a proposition on this
point, it got rejected. The confidentiality currently is providing room for improper use of it for instance for
concealing committed profession-related crimes (even with premeditation of). If the Group of profession is not
enforcing, then is it technically and practically ‘allowed’ to employ the professional privilege to decline after
committing profession related crimes with a professional confidentiality? The Criminal Procedure Code is
determining namely, that in the case of crimes related to a profession (!) with a professional confidentiality a
privilege of decline of criminal investigation occurs in full force of effect (reversal of confidentiality). Then there
can be no search or seizure or wire-tapping in terms of the related matters to the profession by the office of
justice. In consequence also the officers of investigation can claim a privilege of decline.

3. Also court experts who have to advice the Judge afterwards then can claim the privilege of decline. (For the
Group of profession has to Judge upon a colleague. ) The Judge then can be put completely in the dark, this is
particularly if the Judge is no doctor and is completely depending on the integrity of the experts. But íf an expert
makes a certain statement of conclusion, then also it starts out too, because in reaction a distracting contra-
expertise can be placed opposed to. (This raising of complicating noise in judgments regarding causal liability
was poetical called by NeVeMeDis (Dutch Association of Medical Dissidents) ´The Rights to Farce Disciplinary
Court´ (Medisch Kluchtrecht) and this can be a general part of the tactics of defense happily accepted.)
- CDA minster of Justice Hirsch Ballin in the bill of the Royal Dutch Group of medical practitioners KNMG ‘Safe
Reporting (Veilig Melden (2007)): medical improper behavior in anticipation of a new legislation still does not
need to be prosecuted. This statement implicitly indicates the concealed sphere of agreements to continuously
turning a blind eye in criminal justice, and the violation of human rights with a certain kind of class justice.
- Mr. Richard Korver in ‘With Right to Speak´ (Met Recht Van Spreken (2012)): The Dutch system of criminal law
is one of the cheapest all over the World, because -among others- victims are no litigant in criminal procedure.
(In a disciplinary court they are the complainer.) This is, while the function as a litigant can give a meaning to
victimhood, next to a certain meaning in criminal- and civil- justice in a preventive context regarding
perpetration. (Nowadays there is a right to speak for victims so they can talk about what the victimhood is
meaning for them personally, but the compensation still is minimal. There even is an office of victim support,
which is mainly working with volunteers, but it is more a suggestion then an activity in function. Victims do not
have any input in the Legal process, and when their criminal report gets handed over to the office of justice, they
have to wait and see how that (as a case and if) will end up. (In short: enforcement is to push offenders back into
the limits of industry (modern World), and for the rest there is nearly no justice? Justice also often is the
available right of a fat wallet, wherein the victims as a layman always run in behind in (available) knowledge.
Final-review:
There is a law, but that law can be respected arbitrarily, because the cult of silence is providing room for that
with improper use of the privilege of decline of investigation. All the aspects mentioned above result from that
absolute right in privilege of decline and next to that the subcontracted enforcement towards the Group of
profession themselves. But it also has a negative kickback on the development of criminal law, although since
2011 in the Netherlands there is a certain growth in monitoring by criminal justice of standards regarding
medical performances. But also that development will not evolve without a struggle.
Real evil matters with gross negligence and/or improper operating involved do not get the remedial attention
they belong to get, because specifically in the field of medical profession a specialist knowledge is needed (,
wherefore some training really is necessary), whereby particularly that field of profession is more easily taken
into hostage juridical by the Group of profession and also kept away from the judiciary. (The other fields of the
classical quartet (lawyer, clergyman, and notary) do not have this luxury, for it suffices for the Judge to be able to
read himself. But the medical field is one ‘abracadabra’ more with medical language and technical terms etc.
which are giving the medical field of profession a separate position (to be able to declare proverbial that ‘the
moon is made out of cheese’, in order to create noise in the judgments ability). In addition to the judgment of
issues also by insurers a secondary victimization of victims can occur because of financial motives, which also can
have a counter-acting role playing in the process of justice already. Entanglement of interest is lurking when the
first duty of the confidentiality is to protect the image of the Group of profession -with various motives around-
in order to (deliberate) silence also evil matters with holding back/manipulating of medical professional
information. At a later stage this actually will be harming the image of the Group of profession finally!
The rather absolute privilege of decline of investigation related to the confidentiality -in my opinion- is the
poison Sting, where other factors come forth from: there is namely no means of coercion for the government
also because of the highly specialist level of knowledge of medical kind, by which precisely that Group of
profession has more power in concealment and is facilitating entanglement of interests, also because the Judge
has less/or no medical knowledge (,in comparison to other fields with a duty of confidentiality in subcontracting
of enforcement). Can we still speak of a ‘Trias Politica’ if the doctor is dictating as well as the execution, as the
policy as well as the enforcement? It should not be that the medical confidentiality with the professional right of
silence can be used to conceal committed crimes related with the profession. Dear reader, thank you for your
attention reading my vision; in the interest of noble practicing physician and honest patient, intended to initiate
a process of dialogue to discuss the limits of medical autonomous operating, because current setting is tort.
See also: www.slideshare.net/adaqcra/about-the-doctors-selfregulation-and liability-in-consequence-nov2k9
Siegfried van Hoek.