Ongoing Legislated Non-Disclosure Following Hospital Mistakes

On March 4, 2015, the Government of Ontario announced the release of the Quality of Care Information Protection Act (QCIPA) Review Committee Recommendations. The Review was initiated by Minister of Health and Long-Term Care, the Honorable Eric Hoskins, and a committee was convened to review current practice of the interpretation and implementation of the Quality of Care Information Protection Act. Unless otherwise specified, QCIPA overrides all other legislation, including the Freedom of Information and Protection of Privacy Act. The act trumps all other legislation, including freedom-of-information law, and grants hospitals the power to investigate critical mistakes behind closed doors. Hospitals can refuse to disclose to families, the public and other hospitals how a serious medical error happened and what was being done to prevent it from reoccurring.

The QCIPA Review followed concerns that QCIPA is being used to prevent patients and families from being fully informed about what went wrong in a particular incident and what will be done to improve care in the future. There are also concerns that QCIPA has inhibited the sharing of information about critical incidents among institutions in Ontario.

The QCIPA Review called for significant changes, including a requirement to tell families how a medical error occurred, give them the right to request an independent investigation, and to create a public database of all critical-care incidents in Ontario hospitals. The panel did not recommend that hospitals stop enforcing the act until the changes were made.

Even since the government-commissioned review called for significant changes to the act, hospitals have continued to invoke the flawed legislation in at least 29 incidents of patient harm, according to a survey by the Toronto Star. The Star found that while the government drags its heels over amending Ontario Quality of Care Information Protection Act (QCIPA), some GTA hospitals are still invoking the law every time a critical care incident occurs. While at least one hospital has said that it involved the patient’s family and shared its findings, the family feels that is drip-fed information and that information is hidden from them.

The Toronto Star announced on May 29, 2015 that it surveyed 15 hospitals in the GTA in the past week and found more than 200 critical or severe incidents had been handled under the act since April 2014 — most of those while the legislation was under active review by the province. The Star announced this includes at least 11 patient deaths.

Currently, hospitals do not share information about their critical incidents or their plans to prevent future incidents with each other, except on an ad hoc basis. Patients have the right to expect that the hospital in which they are receiving care has learned from the investigation of critical incidents conducted in other hospitals in Ontario and elsewhere, and that the organization will share what it has learned with others.

The QCIPA Review recommends the establishment of a publicly available database or registry that contains information about all of the critical incidents investigated in Ontario hospitals, including the type of incident, the cause(s), and the recommendations to prevent future incidents. Currently, the Ontario Government has failed to amend QCIPA in accordance with its own Review recommendations.

 

This blog post was contributed by Roelf Swart, OTLA Blog Committee member and lawyer practicing with Elkin Injury Law in St. Catharines, Ontario.

Roelf Swart
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Roelf A.M. Swart is very pleased to have joined Elkin Injury Law as an associate lawyer in 2009. Roelf’s practice consists plaintiff personal injury law with a focus on tort, accident benefits and long term disability disputes. Roelf enjoys successfully assisting people with their cases and bringing their cases to a successful resolution.