Although E-health is a major spearhead in healthcare, there are also forms of digital care that are under scrutiny and have meanwhile been found impermissible by the court.
There is a surge in online options for ordering medicines without a prior physical consultation by a physician. A lot of the websites in question focus on health problems such as baldness, sleeping disorders and STDs, or target at (strong) pain relief, weight loss and overcoming erection problems.
One of such websites is <dokteronline.nl>. This website already came to the attention of politicians and was a topic of the investigative journalism television show Rambam, in 2016. At the time the major objection was that the website acted contrary to Article 67 of the Dutch Act on Medicines and prescribed medicines through the internet to persons that had never met the prescriber in person, or were unknown to the prescriber or whose medical history was not accessible to the prescriber. However, it was impossible to take action against the owner of the website, since he was (and is) established in Curacao.
Nevertheless, once the Act on Medicines had been amended in 2011, action was taken as yet and the Minister imposed a fine of EUR 102,000.=. The owner of <dokteronline.nl> filed an objection to said fine, but the objection was found invalid, which made <dokteronline.nl> lodge an appeal.
In the appeal proceedings, the District Court in The Hague1 found that <dokteronline.nl> offered medicines without being authorized and acted contrary to several advertising prohibitions, i.e. advertising unregistered medicines, advertising contrary to the SmPC and publicly advertising prescription medicines.
Although <dokteronline.nl> did display the medicines – including selling price – on its website and the option was given to order and pay them (to <dokteronline.nl>), the products were supplied by a third party, a pharmacy, to Dutch consumers. The District Court, however, found that this sufficed to conclude that <dokteronline.nl> offered medicines without being authorized and by doing so breached Article 61 of the Dutch Act on Medicines (fine: EUR 12,000.=). Moreover, medicines were offered in a canvassing manner on the website that had not been registered in the Netherlands, as resulted into a fine of EUR 30,000.-. This was raised by another EUR 30,000.- because the ads on the website were not in conformity with the SmPCs of the medicines. For instance, text was changed or only reproduced selectively. Finally, another fine was imposed of EUR 30,000.- by reason of impermissible public advertising. After all, the website (and the advertising made on it for prescription medicines) was not only accessible to practitioners, but also to the general public. Although <dokteronline.nl> was of the opinion that there was only one breach, the District Court found that several law articles had been violated and that individual (accumulated) fines could be imposed for this reason.
Presently, the website is still on the air. Consultations, however, are provided by foreign physicians and they write the required prescriptions (in countries that do not have a prohibition as laid down in Article 61 Dutch Act on Medicines, cited above, such as Germany and the UK). Payment is made to an individual entity in the UK. Next Dutch consumers can receive the prescription by mail and submit this to a Dutch pharmacy. It is also possible, however, to have the medicines delivered at home by a pharmacy in the UK, Blueclinic Ltd. Blueclinic has been registered as official “online medicines provider” 2. In this manner, <dokteronline.nl> circumvents the Dutch prohibition on online prescription of medicines to persons whom the prescriber has not met in person.
1 District Court of The Hague 8 January 2020, claimant / Minister of Public Health, Well-being and Sports, ECLI:NL:RBDHA:2020:85
2 See for NL: https://www.aanbiedersmedicijnen.nl/