Quality of Care Information Protection

• Author: Halyna N. Perun; Michael Orr; Fannie Dimitriadis
• Pages: 607-645

A. BACKGROUND

1) What Is QCIPA?

As mentioned in Chapter 1, Bill 31 enacted two free-standing pieces of legisla-

tion: the Personal Health Information Protection Act, 20041and the Quality of Care

Information Protection Act, 2004,2the latter being the subject of this chapter.

Since QCIPA came into force on 1 November 2004,3Ontario for the first

time has a broad legislative framework under which activities to improve the

quality of health care are effectively encouraged by ensuring that the informa-

tion provided or generated by health care professionals in the course of such

activities4will be shielded from disclosures in proceedings and beyond, subject

to specific limitations and exceptions.

607

1 S.O. 2004, c. 3, Sch. A [PHIPA].

2 S.O. 2004, c. 3, Sch. B [QCIPA].

3 Under QCIPA, ibid., s. 12, all the substantive provisions of QCIPA came into force on

1 November 2004. PHIPA came into force at the same time. As with PHIPA, the pro-

visions requiring public consultation on the regulations came into effect from the

time of Royal Assent, 20 May 2004, to allow the consultation process for the regula-

tions to be conducted, in order to be able to have regulations ready when the substan-

tive provisions of the Act came into force.

4 The term “health care practitioner” is not used here since it is not a defined term in

QCIPA, but rather in PHIPA.

17Quality of Care

Information Protection

2) Rationale for Quality of Care Information Protection

“To err is human,” and there is no exception to this principle in the health care

system. Recently published material has emphasized that errors in the delivery

of health care, often with serious consequences, may be more common than

many people would have suspected. A recent well-publicized Canadian study

found that adverse events (unintended injuries and complications) arose in 7.5

percent of Canadian hospital admissions.5The study found that 37 percent of

these adverse events were preventable and over 20 percent of the adverse

events resulted in death, causing about 37,000 deaths per year.6And, of

course, even in more typical cases where there is no “error” or adverse event,

improvements in the quality of health care being provided can be expected to

lead to better outcomes.

Once an error has occurred in the provision of health care, it is not always

possible to reverse the effects of the error in the individual case. What is often

possible, however, is to try to fix the problem that caused the error to occur in the

first place, so the likelihood of further errors can be reduced, thus improving the

future quality of care of other patients. To do this, it is necessary to accurately

identify all the conditions that contributed to the error occurring. A crucial chal-

lenge here is that the conditions and factors that led to the error are often known

only by the health professionals who were involved in the error. Yet they may be

reluctant to divulge this information for fear that it will be used against them.

Although the effects of an error made in the delivery of health care may

not be reversible, it may be possible and legally and morally appropriate to have

the party at fault compensate the party who experienced the adverse effect, or

that person’s estate or dependents. The fact that substantial compensation may

be at stake, combined with the fact that fault and causation are often disputed

gray areas, makes the issue of shielding quality of care information one that

requires a fine policy balance. Enough information must be shielded to

encourage participation in quality of care reviews, while not shielding informa-

tion where doing so would interfere with a patient’s existing right to seek com-

pensation through litigation for the adverse effects of medical errors in

appropriate cases.

Health Minister George Smitherman described the purposes of QCIPA as

follows:

Guide to the Ontario Personal Health Information Protection Act

608

5 Baker et al., “The Canadian Adverse Effects Study: The Incidence of Adverse Events

Among Hospital Patients in Canada,” (2004) 170: 11 CMAJ 1678.

6Ibid.

The … government is particularly aware of the need to encourage health pro-

fessionals to share information and hold open discussions that can lead to

improved patient care and safety. That’s why Bill 31 has been drafted with pro-

tections for quality-of-care information generated by hospital committees that

deal with quality improvement.

When a medical error occurs in a hospital or other health care setting,

open disclosure and discussion of the facts surrounding the incident are

absolutely critical. Without this, the institution will not be able to analyze the

root cause or gaps that led to the incident and frankly to direct appropriate

measures to make sure it doesn’t happen again. …

This legal protection for quality-of-care information is available only if the

facts of a medical incident are recorded in the patient’s file. The information

provided to the quality-of-care committee and the opinions of committee mem-

bers would be shielded from disclosure in legal proceedings as well as most

other disclosures outside the hospital. In this way, we have carefully balanced

the need to promote quality care with the need to ensure accountability.7

3) Recommendations for Quality of Care Information Protection

Quality of care information protection has been recommended over the years

in the course of significant reviews of the health care system. Two examples are

particularly noteworthy in the development of QCIPA.

In 1990, University of Toronto President Robert Prichard8presented a

report that became known as “the Prichard Report.”9In the report Prichard,

with the support of a distinguished advisory committee representing health,

legal, and government sectors, recommended to Canada’s federal, provincial,

and territorial deputy ministers of health “that a broad evidentiary protection

be extended to safeguard health care institutions and health care professionals

against the use of the results of their post-incident inquiries in personal injury

claims in order to encourage the widest and most vigorous possible pursuit of

these matters,” and that “this privilege in civil litigation should extend to the

results of quality assurance, risk management, and peer review processes.”10

Quality of Care Information Protection 609

7 Ontario, Legislative Assembly, Standing Committee on General Government, Official

Report of Debates (Hansard), G-7–G-8 (26 January 2004) at 1020.

8 Formerly Dean of the University of Toronto Faculty of Law.

9Liability and Compensation in Health Care, A Report to the Conference of Deputy Minis-

ters of Health of the Federal/Provincial/Territorial Review on Liability and Compensation

Issues in Health Care (Toronto: University of Toronto Press, 1990) [Prichard Report].