"Deaths after substandard care frequently go unpunished"

That the system is failing on multiple fronts simultaneously is no accident, say health law experts. Pointer and De Gelderlander spoke with, among others, Professor of Health Law Martin Buijsen and Associate Professor of Health Law André den Exter, both affiliated with Erasmus School of Law, and with Olga Floris, Lecturer in Health Law at Erasmus School of Health Policy & Management and Chair of Klokkenluiders Gehandicaptenzorg (Whistleblowers in Disability Care).

"There is no central register," says Buijsen. Floris adds: "Despite structural shortcomings, prosecution is barely ever pursued." The problem can be set out across three layers:

Problem one: we do not know what we do not know

The most fundamental problem is also the least visible. The Netherlands has no central register of unnatural deaths in care settings. The Healthcare and Youth Inspectorate (IGJ) does not record these figures. Municipal public health services (GGDs) do collect data, but it is not centrally aggregated, as Pointer reports.

Statistics Netherlands (CBS) could in theory produce national figures, but doing so would require linking datasets that currently exist in isolation. Something that will not happen in the foreseeable future due to a lack of capacity and resources, as CBS itself acknowledges. Buijsen regards this as seriously problematic. "There is currently no central overview. If you do not monitor, you have no insight into causes or areas for improvement."

The legal consequence is as straightforward as it is far-reaching: if a death is not recorded as unnatural, it does not exist within the system. "No duty to report arises for the care institution, no inspectorate investigation follows, and there is no consideration of whether the Public Prosecution Service should be informed," says Buijsen. Care providers do have a statutory duty to report calamities, but not every unnatural death constitutes a calamity. It does so only where the care provider itself suspects a direct connection to the quality of care provided. Following the reporting of a calamity, the IGJ requires the care provider to conduct a further investigation into the circumstances, and to inform the inspectorate of its findings and any proposed remedial measures.

Beyond the absence of adequate registration, Pointer identifies a further structural problem. It begins with the physician carrying out the post-mortem examination. In practice, this is usually a general practitioner or nursing home physician, not a forensic specialist. The definition of an unnatural death is, moreover, not applied uniformly: whether a fall is recorded as natural or unnatural varies from one doctor to the next. Calamities thus remain invisible.

Problem two: the inspectorate is (currently) not the solution

Where an unnatural death is registered, the system does engage. But health law experts question whether that system provides the right response. The IGJ focuses on remediation and improvement: care institutions are required to report a death, are subsequently instructed to conduct their own investigation, and the inspectorate assesses whether that investigation has been carried out adequately. The inspectorate rarely conducts its own independent investigation.

According to Floris, however, the IGJ is not the solution to the problem. "Care businesses are permitted to keep improving indefinitely. The inspectorate trusts that things will work out." In practice, self-regulation as a default means that institutions are primarily left to assess themselves following a fatal incident. Floris advocates a fundamentally different approach: far more unannounced visits, more robust enforcement, and less reliance on improvement trajectories that institutions design for themselves.

Disciplinary law, to which the Public Prosecution Service points as a remedy, fills this gap only partially. "Disciplinary law applies to individual healthcare professionals registered in the BIG register, and can impose warnings, reprimands, suspensions, or removal from the register. But it cannot hold institutions to account, and for large categories of care workers, such as support staff in residential care facilities, there is no disciplinary framework whatsoever," says Buijsen.

Problem three: no straightforward legal route

Even when a case ultimately reaches the Public Prosecution Service, that does not mean prosecution will follow as a matter of course. Of the thirty cases the PPS investigated, thirteen were not brought before a court, as Pointer reports.

"To understand why prosecution so rarely succeeds, we need to look at how deaths in care settings actually come about," says Buijsen. "Where a one-off error by an individual is involved, a causal link is still relatively possible to establish. But where care has been structurally deficient over many years, insufficient staffing, inadequate record-keeping, poor coordination between agencies, it becomes virtually impossible. You cannot identify the precise moment at which the system failed in a manner that is criminally culpable."

The PPS itself cites a further reason for its reluctance: the concern that increased prosecution may deter care workers. In a sector already struggling with staff shortages, the PPS is wary of creating an environment in which employees become hesitant out of fear of legal consequences for mistakes.

Floris takes the opposing view, arguing that institutions should face prosecution more frequently where they have failed to put their affairs in order. "Our care system has broken down. The result is that people are dying unnecessarily and are frequently not receiving appropriate care. Politicians must intervene, and a think tank must be established. It is worth considering carefully what is within the realm of possibility, with the aim of improving the quality of care."

Den Exter concludes with a call for greater recognition of the position of bereaved relatives: "The PPS simply does not have sufficient capacity to investigate complex care cases. Alternatives, such as a disputes committee, can make recommendations for the future. But that is not what families are waiting for. What matters most to them is receiving an apology. That rarely happens. And as a result, they become desperate and turn their focus towards criminal prosecution."