The 'Right To Be Forgotten' – A New Development For Healthcare Professionals?

The so-called 'right to be forgotten', where an individual can apply to have information about them removed from internet search results, has been around since 2014. As of May 2018 the position has been strengthened and extended via the new provisions of the GDPR. A court in the Netherlands recently considered an application by a Dutch surgeon, with the doctor winning the right to tell Google to remove links to her name.

Legal background

The basis of any request for removal of information from a search engine was established in a 2014 ruling by the ECJ, who decided that EU citizens could apply to search engine providers (in this case Google) to remove information which was 'inaccurate, inadequate, irrelevant or excessive', in the opinion of the search engine company. The case was brought by Mr Mario Costeja Gonzalez who had asked Google to remove information about his financial history.

However, the right to be forgotten is not an unqualified one and in the context of healthcare professionals who have been subject to fitness to practice proceedings before their regulator, the expectation has been that any attempt to invoke the right would be unsuccessful. Given that the primary function of healthcare regulatory bodies to protect the public, arguably this function is undermined if the public doesn't have access to information about a clinician's fitness to practise history. For the clinician, on the other hand, the reputational consequences of an adverse fitness to practise decision or even simply an allegation or complaint which ultimately proves to be unfounded, can be devastating both professionally and personally particularly when an allegation gives rise to a news report which is then immortalised in the clinician's search results (an allegation always seems to be much more newsworthy than the response).

Netherlands judgment

Recently, however, a court in the Netherlands took the very unusual step of deciding in favour of a surgeon who applied for removal of Google search results concerning her disciplinary proceedings by the Dutch medical regulatory authority, who investigated her for poor post-operative care of a patient. Her registration was initially suspended, but she appealed and the sanction was amended to the equivalent of an Order for Conditions.

The availability of this information would, in any jurisdiction, be likely to be entirely uncontroversial, although no doubt uncomfortable for the doctor involved. However, in this case...