Reconciling the interests of professionals and patients in a sale of goodwill exploiting health data

While the sale of a business is a classic merger-acquisition operation, it can cover more complex issues when it requires a transfer of health data (for example in the case of a healthcare provider). On the one hand, the transferor, responsible for processing this data, will be cautious given his responsibility. On the other hand, the transferee will want to ensure the transfer of data for all patients from the first day of operation of the fund.

These differences of opinion are not insignificant, as they have a significant impact on the conduct of the transaction and in particular on the time between the conclusion of the transfer agreement and the completion of the acquisition. It therefore seems important to clarify the most appropriate legal basis for the transfer of health data in the interest of the assignor and the assignee, while ensuring compliance with patients’ rights.

What legal basis for these data transfers?

As a reminder, health data being qualified as special categories of data by the GDPR, their transfer must be based on one of the legal bases listed in Article 9 of the same text, and be subject to the corresponding appropriate procedures vis-à-vis lives of patients.

In this respect, the consent of all the patients to the transfer, and therefore to the transfer, appears to be a false good idea: obtaining consent before the effective date of transfer of the fund can prove to be a difficult exercise, if not impossible. to be implemented in practice. Above all, in the context of an assignment, the free and informed nature of the patient’s consent could relatively easily be called into question when the continuity of treatment is at stake.

Article 9.2.h) therefore seems more appropriate. This paragraph allows the processing of health data when the processing is necessary “medical diagnoses, health or social care, or the management of health care or social protection systems and services on the basis of Union law, the law of a Member State or in under a contract concluded with a health professional”.

Insofar as the definition of processing includes that of transfer, this paragraph can therefore constitute the legal basis for a transfer of health data – without the consent of each patient – when it is necessary to allow continuity of care in the as part of a transfer of goodwill from a care provider.

How to guarantee respect for the rights of individuals and their data?

Once the legal basis has been established, it is also necessary to ensure that patients’ rights are respected. Indeed, if the transferor had to request the consent of each patient before the transfer, it would be difficult for him to take the risk of transferring the data of patients who simply did not respond. As for the transferee, he could find it difficult to take the risk of only having the data transferred from people who have expressly consented to the transfer, and then be tempted to abandon the operation or to request an adjustment of the transfer price.

In addition, it will be difficult for the parties to contractually manage any questioning by a patient of such a transfer based on the absence of the validity of his consent in a context where the continuity of care is at stake for him.

Information prior to the transfer, allowing patients to exercise their right of opposition, therefore seems more appropriate both from a legal and operational point of view. This opposition period must be reasonable (around one month) and can therefore be managed between the date of signature of the transfer agreement and the completion of the fund transfer, in parallel with the migration preparation work computer science.

This option has the advantage of reconciling the interests of all:

– The purchaser is transferred all of the patients’ personal data unless the latter opposes;
– Information with the right to object is much easier for the seller to implement;
– Patients do not have to take any steps to guarantee the continuation of their care after the transfer. Continuity of patient care is thus ensured.

By Ermine Bolot, Partner, Sophie Pelé, National Partner and Sophie Montagne, Associate at Dechert

Source: UsineNouvelle – Actualités A la une by

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