Abstract

A closer look at the Quality of Care Information Protection Act (QCIPA)

In the last few years, the release of a number of landmark reports including the Baker Norton Report "Patient Safety and Healthcare Error in the Canadian Healthcare System" and the CIHI/CIHR study "Improving the Quality of Healthcare in Canadian Hospitals" has triggered wide spread awareness and discussion about the need to improve patient safety. In 2002, the National Steering Committee on Patient Safety issued a comprehensive report, "Building a Safer System: ANational Strategy for Improving Patient Safety in Canadian Healthcare", that recommended a national strategy to reduce the incidence of adverse events in Canada.

In 2003, the First Minister's Accord on Healthcare Renewal outlined broad commitments related to patient safety and undertook to take a leadership role in implementing the recommendations of the National Steering Committee on Patient Safety. In addition, the federal budget announced the provision of $10 million annually in response to the National Steering Committee on Patient Safety report, and the creation of the Canadian Patient Safety Institute.

In March 2004, the Ontario Hospital Association and the Ministry of Health and Long-term Care announced Canada's first Patient Safety Support Service to provide hospitals with assistance to improve patient safety practices.

Consistent with the growing awareness of patient safety and healthcare errors, there has been a significant shift away from a culture of punishment and blame toward creating an environment that supports identification and reporting of near misses and adverse events. Recognizing that human error is inevitable, and that systemic factors contribute to most near misses and adverse events, hospitals are implementing strategies to help predict and prevent such occurrences by fostering reporting for the purpose of prevention and improvement in the provision of care.

Creating a safe and secure environment where candid discussion of a near miss or adverse event can take place requires that the individuals participating in the discussion trust that the information being disclosed will be kept confidential, and that they will not be penalized for participating in the review process. The Quality of Care Information Protection Act, 2004, (QCIPA) has been drafted to facilitate open and honest communication by protecting information prepared by or for a quality of care committee from disclosure in legal and other types of proceedings.

What is the purpose of the QCIPA?

QCIPA was enacted as Schedule B to the Health Information Protection Act, 2004 and it came into force on November 1, 2004. QCIPA applies to quality of care information collected by or for a quality of care committee, and sets out the how quality of care information must be collected, protected and disclosed.

The purpose of QCIPA is to improve patient safety and quality of care by encouraging hospital staff and physicians to share information about a potentially unsafe act without being concerned that the information that they provide will be used against them or their colleagues in any disciplinary actions.

Unless the regulations state otherwise, QCIPA generally prevails over other Ontario legislation including the Personal Health Information Protection Act, 2004 ("PHIPA"). Under the QCIPA general regulation, only the Independent Health Facilities Act, 1990 prevails.

What is a quality of care committee?

A quality of care committee is a committee specifically designated as such by a health facility. Health facilities are defined to include: hospitals, independent health facilities, psychiatric facilities and institutions governed by the Mental Health Act, 1990 long-term care facilities, licensed medical laboratories and the Ontario Medical Association, in respect of its quality assurance activities with licensed medical laboratories and specimen collection centres.

The function of a quality of care committee is to:

Carry on activities for the purpose of studying, assessing or evaluating the provision of healthcare with a view to improving or maintaining the quality of the healthcare or the level of skill, knowledge, and competence of the persons who provide the healthcare.

A quality of care committee must be formally designated in writing as such for the purposes of QCIPA, and the terms of reference of the committee must be available to the public on request. If reviews are conducted by individuals or groups that have not been designated as a quality of care committee, or by individuals or groups that are performing acts that have not been delegated by a quality of care committee, these reviews will not be protected under the QCIPA. Similarly, reviews carried out by a properly designated quality of care committee that are not conducted for the purpose of improving or maintaining quality of care, will not be protected under the QCIPA. These reviews may only be protected by the traditional types of privilege such as solicitor client privilege, litigation privilege or privilege under the common law. If a health facility wishes to avail itself of the protections provided by the QCIPA, it must ensure that its programs are set up and maintained in accordance with the QCIPA.

In addition to ensuring that a quality of care committee has been properly designated, hospital administrators will want to consider how to structure the committee so that the protections afforded by QCIPA can best be applied. For example, whether a multifunctional committee should be designated as the quality of care committee or whether there should be more than one quality of care committee with the ability to delegate certain responsibilities to another individual or committee for the specific purpose of the quality of care review, are questions that each institution will have to address.

What is quality of care information?

The definition of quality of care information is tied to its relationship to a quality of care committee.

QCIPA defines quality of care information as:

  • information collected by or prepared for a quality of care committee for the sole or primary purpose of assisting the committee in carrying out its functions; or
  • information that relates solely or primarily to any activity that a quality of care committee carries on as part of its functions.

Quality of care information is not:

  • information contained in a patient's chart (maintained for the purpose of providing healthcare);
  • information found in a record that was generated as a requirement of law; or
  • factual information contained in an incident report regarding the provision of healthcare to a patient (unless the facts are fully recorded in the patient's health record).

As noted above, quality of care information does not include information about the patient recorded in the patient's chart. Quality of care information further excludes factual information about the patient's care obtained during a review that is not noted in the patient's record, as well as new facts learned during the course of the review. Since factual information is not quality of care information, isolating and incorporating the factual elements of an incident report into a patient's health record, may protect the quality of care information contained in the incident report from disclosure.

When is quality of care information prohibited from being disclosed? Quality of care information that is collected by or prepared for a quality of care committee cannot be disclosed except as permitted by the QCIPA. This information is not admissible in evidence in a proceeding and no person can be permitted or required to disclose quality of care information in a proceeding. Proceedings are broadly defined by the QCIPA to include a proceeding that is within the jurisdiction of the legislature and that is held in, before or under the rules of a court, a tribunal, a commission, a justice of the peace, a coroner, college committee, arbitrator or mediator.

Quality of care information may not be requested and it cannot be volunteered. In addition, except in certain circumstances, information collected for the purpose of a quality of care committee cannot be disclosed or accessed by a patient, or by his or her family/substitute decision maker.

When can quality of care information be disclosed?

Quality of care information may be disclosed to the management of a facility if the quality of care committee believes that the disclosure is required for the purpose of maintaining or improving healthcare. Management is defined as including members of the senior management staff, the board of directors, governors or trustees. Management may share the information that has been disclosed to agents or employees of the facility, if necessary for the purpose of maintaining or improving the quality of care.

Quality of care information may be disclosed for the purpose of eliminating or reducing significant risk of bodily harm, and despite the provision of the PHIPA personal health information may be disclosed to a quality of care committee for the purposes of the committee without the patient's consent.

Disclosure of quality of care information in contravention of the QCIPA is an offense as is retaliation against someone who participated in such a process. A member of the quality of care committee who discloses information in good faith or under the harm reduction provision will be granted immunity and no action may be taken against him or her.

Who may provide quality of care information to a quality of care committee?

Anyone may provide any information to a quality of care committee to further the functions of the committee. However, a person to whom quality of care information has been disclosed is restricted in his or her subsequent use and disclosure of the information and may only use the information for the purpose for which it was disclosed.

When to designate information as quality of care information?

Once information has been designated as quality of care information, it cannot be disclosed or made admissible in a "proceeding", which has been defined in the QCIPA as including an Ontario court, tribunal, commission, arbitration or a committee of a College within the meaning of the Regulated Health Professions Act, 1991. It is therefore noteworthy that while quality of care information cannot be used in any proceedings against that health facility, it similarly may not be used in any proceedings in which the health facility may seek to vindicate its actions. As such, a health facility that has a quality of care committee, and seeks to designate information as quality of care information, should give careful consideration to any possible future uses of that information. There may be occasions when it may not be in the best interests of the health facility to designate such information as quality of care information.

About the Author

Louise Shap is an Associate with Fasken Martineau DuMoulin LLP. She can be reached at lshap@tor.fasken.com or 416 865 5499.

Acknowledgment

Reprinted with permission.