A Patient’s Right To Know About Medical Errors: The Lack Of Transparency

The Quality of Care Information Protection Act, 2004 (QCIPA), was developed to allow health professionals and organizations to freely discuss medical errors in a “no-blame” context, meaning that discussions would be shielded from disclosure in a legal proceeding.[1] The legislation was supposed to encourage health care providers to openly talk about and resolve complex problems that lead to critical incidents, which are unintended events that cause harm to patients and do not occur because of their underlying condition or associated risk.[2] The lessons learned were meant to be shared with other organizations as a prevention measure. Unfortunately, the open culture that the QCIPA was intended to promote never materialized. Instead, the QCIPA has become another tool that hospitals can use to keep information from patients, their families, and the public.

Hospitals use QCIPA the most.[3] Under QCIPA, health care organizations can designate a Quality of Care Committee (QCC), which is supposed to investigate and assess how health care is provided to improve the quality of care at an institution.[4] The QCIPA says that information prepared by or for a QCC, called “quality of care information,” can only be disclosed in minimal circumstances.[5] Most of the disclosures allowed are in the health care management context, and disclosure is prohibited in legal proceedings and most other situations.[6] Patient requests are not one of the reasons that this information can be disclosed.[7] The Freedom of Information and Protection of Privacy Act (FIPPA) does not apply to the quality of care information.[8] QCIPA does disqualify some information from being deemed the quality of care information, but these exceptions are limited, and the only information a patient is entitled to be what is found in their chart.[9] So, if a critical incident happens, and the hospital chooses to investigate under the QCIPA, both what occurred and what the hospital will do to correct the problem are kept a secret. This is troubling for patients who want quality treatment, families who want answers, and for a public that wants accountability in health care.

By summer 2014, it was apparent that whatever had motivated QCIPA¸ it was causing too much harm and too little good. QCIPA was used and interpreted very differently at each hospital, and some use it for every critical incident investigation.[10] In June 2014, 20-year-old Prashant Tiwari hanged himself while under suicide watch at Brampton Civic Hospital.[11] Two weeks after his death, his family was still unable to get any information about what had gone wrong.[12] The flaws with QCIPA had already attracted some attention in 2013 when a baby was wrongfully pronounced dead at Humber River Hospital, and the subsequent findings were kept a secret, including from the parents.[13] As a result of Mr. Tiwari’s death, Eric Hoskins, the Minister of Health and Long Term Care, established a Committee to review QCIPA and its intersection with other legislation in August 2014.[14] The Committee was also asked to propose changes that would ensure “consistent, high-quality, safe, and patient-centered care.”[15]

The Review Committee Recommendations were submitted on December 23, 2014, and the Committee concluded that while worth keeping, QCIPA should be amended, and needs more structure to fulfill its purpose.[16] It suggested six patient-oriented principles that should underlie the investigation of critical incidents and focus on patient inclusion, transparency, consistency, and lesson-sharing.[17] The twelve Recommendations try to fill gaps in the legislation. The Committee proposed that QCIPA should be amended to ensure there is appropriate disclosure to patients and families.[18] There needs to be clear direction on when to invoke QCIPA.[19] Patients and their families must be informed of the process that will be used to investigate a critical incident and be kept updated.[20] The Committee recommends that patients and families must be interviewed as part of the investigation, and be fully informed of the results.[21] The Committee also suggests establishing a mechanism for appeals and one for hospitals to share their recommendations.[22]

The QCIPA Review Committee Recommendations have promising suggestions to combat how QCIPA, intended to promote excellent health care for all, has been used by hospitals to hide from the families of patients when things do not go well. However, it remains to be seen what, if anything, the government will do in response to the Recommendations. In the meantime, many hospitals continue to hide behind QCIPA, and will until they are forced to be transparent.[23]

Bogoroch & Associates LLP has extensive experience in medical malpractice litigation and firmly believes that victims of malpractice are entitled to access to justice. Please contact us for further information on how we can assist you or your family member.

Bibliography

Carville, Olivia. “Hospitals still use flawed secrecy law to review medical errors” in The Toronto Star (Toronto: May 29, 2015) online.

Dempsey, Amy, and Theresa Boyle. “Former OHA head questions hospital’s silence on investigation of baby wrongly declared dead” in The Toronto Star (Toronto: April 5, 2013) online.

Gerster, Jane. “Brampton Civic claps a lid on psych ward suicide” in The Toronto Star (Toronto: July 7, 2014) online.

Gerster, Jane. “Hospital suicide prompts review of secrecy in ‘quality of care’ law” in The Toronto Star (Toronto: July 10, 2014) online.

Gerster, Jane. “Toronto hospitals vary widely in use of secrecy law” in The Toronto Star (Toronto: July 10, 2014) online.

QCIPA Review Committee, QCIPA Review Committee Recommendations (Toronto: Prepared for the Ministry of Health and Long-Term Care, 2014)

[1] Jane Gerster, “Toronto hospitals vary widely in use of secrecy law” in The Toronto Star (Toronto: July 10, 2014) online.

[2] QCIPA Review Committee, QCIPA Review Committee Recommendations (Toronto: Prepared for the Ministry of Health and Long-Term Care, 2014) at 11, 31.

[3] Ibid., at 11.

[4] Ibid., at 11-12.

[5] Ibid., at 12.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid., at 13.

[10] “Toronto hospitals vary widely in use of secrecy law,” supra.

[11] Jane Gerster, “Brampton Civic claps a lid on psych ward suicide” in The Toronto Star (Toronto: July 7, 2014) online.

[12] Ibid.

[13] Amy Dempsey and Theresa Boyle, “Former OHA head questions hospital’s silence on investigation of baby wrongly declared dead” in The Toronto Star (Toronto: April 5, 2013) online.

[14] Jane Gerster, “Hospital suicide prompts review of secrecy in ‘quality of care’ law” in The Toronto Star (Toronto: July 10, 2014) online.

[15] QCIPA Review Committee Recommendations, supra, at 8.

[16] Ibid., at 26.

[17] Ibid., at 6.

[18] Ibid., at 27.

[19] Ibid.

[20] Ibid., at 29-30.

[21] Ibid., at 30.

[22] Ibid., at 28.

[23] Olivia Carville, “Hospitals still use flawed secrecy law to review medical errors” in The Toronto Star (Toronto: May 29, 2015) online.