Childcare and healthcare are two sectors in a state of flux. Based on the recent vice case in Amsterdam, the authorities have decided to take a variety of measures in childcare. Government measures in healthcare are prompted, among other things, by the desire to combat rising costs. This article will discuss recent developments in both sectors. It will also give consideration to case law.
The vice case in Amsterdam and the Gunning Committee
The Gunning Committee was asked by the municipality of Amsterdam to review the administrative aspects of the Amsterdam vice case. The object of the investigation was to glean lessons from the events to ensure that children can grow up in an environment that is safe both physically and emotionally.
One of the recommendations of the Gunning Committee was to step up screening of childcare workers. The Dutch government has therefore decided that continuous screening of day care staff, childminders and playgroup staff will start in 2013 in order to enhance child safety in the sector.
Continuous screening is being introduced in two phases. In the spring of 2013, based on data from municipalities, the Employee Insurance Agency UWV and the Chamber of Commerce, a file will be constructed of people who work in childcare and playgroups. This file will be compared with judicial data on criminal offences. For the foreseeable future, trainees, temporary workers and volunteers will have to apply for a certificate of good conduct every two years. In 2016, the central register will include the names of all those who work in childcare and playgroups, including trainees, temporary staff and voluntary workers. From then on, everyone who works in childcare and playgroups will undergo full and continuous screening.
The principle of two pairs of eyes in childcare and the legal system
According to the Gunning Committee, it is important that two adults can always see or hear the children in a day care centre. This is known as the principle of ‘two pairs of eyes’. Preliminary relief proceedings held on 7 February 2012 before the District Court of Haarlem revolved around this system. The case involved a male playgroup leader. While this leader was on sick leave, the employer had altered its policy so that female leaders were permitted to lead a playgroup on their own, but male leaders were not. Among the reasons given was the commotion that had arisen in this regard because of the Amsterdam vice case. Because of this, the male leader was to be transferred to a different playgroup where another group helper would always be present. The employee protested against this.
The preliminary relief judge ruled that such a policy was contrary to the prohibition of discrimination as set down in the Dutch Civil Code. Nor could the new policy be legitimated by referring to the Gunning report. Although the report cites the importance of two pairs of eyes, the employer interpreted this concept more broadly by requiring that two pairs of professional eyes were always on a group and then stipulating that this would apply only if the group leader was male.
Developments in healthcare
For some time the ‘BIG register’ (for the registration of individual healthcare practitioners) can be consulted by the public at large to learn what disciplinary measures and what professional restrictions have been imposed on care workers by the Healthcare Inspectorate. The only type of measure not made public is a warning. The idea is that, by making public all sanctions, patients, colleagues and employers will get a clearer picture of what can – and does – go wrong. It improves the transparency of healthcare and its practitioners for patients and enables patients to make better choices.
The Dutch government wants to make drastic changes to the Exceptional Medical Expenses Act (AWBZ) in 2015. The idea is to amend this act so that it will cover only the most intensive and long-term care. Municipalities will implement supporting care at patients’ homes – for instance, helping them get dressed and undressed, washing their hair. Healthcare insurers will take over the medical care now offered by the AWBZ: nursing and long-term mental healthcare.
The Dutch government also wants care to remain in-home for longer periods. New clients who would still have qualified for the lowest-level care intensity package [ZZP 1-2] as well as a medical indication for institutionalised (intramural) care in 2012 will be given an indication for at-home (extramural) care in 2013.
Adults who receive exceptional medical care under the act must pay a personal contribution. As of 1 January 2013, wealthier individuals pay a higher personal contribution: 8% of their assets, which are now classified in tax box 3, will move to the income box.
Doctor with undisclosed criminal antecedents employed by home care organisation
An employee was hired by a home care organisation on 9 July 2012 as a junior doctor on a temporary contract. In negotiating the contract, the parties agreed that the employee would follow a training programme to specialise in geriatrics. His CV showed a gap in work history in the period 2003-2011. No questions were asked about this in the job interview. Nor was the employee asked to submit a certificate of good conduct. It later turned out that the employee had been sentenced to several years in prison for having ordered someone to set fire to his wife.
The employer asked the sub-district court to set aside the employment contract. As the basis for its request, the employer submitted that the employee had seriously betrayed its confidence by not revealing that he had been given a long-term prison sentence in 2004/2005 and then by providing erroneous information about the gap in his CV. Asked what he did in this period, he said he had been caring for his sickly mother in Egypt.
According to the judge of sub-district court, with a view to the employee’s envisaged position as a doctor for a group of frail and vulnerable elderly people, he should have informed his employer about his past. It would have behoved the employer to do some further research itself and to request a certificate of good conduct, for example, but the disclosure obligation of the employee carried greater weight than the employer’s obligation to investigate; this was further magnified by the fact that during and after the job interview the employee had given the employer the wrong impression by not giving full information. The employment contract was set aside without severance pay.
It is advisable to stay well-informed about the multitude of developments taking place in childcare and healthcare. These two sectors are currently in a state of flux. We will be happy to provide more information in this respect.
CMS Newsflash Employment & Pensions, 2013, issue 1