Law Times

Law Times • January 25, 2016 Page 3 www.lawtimesnews.com NEWS QCIPA tries to balance confidentiality, right to information BY NEIL ETIENNE Law Times S ignificant changes to transparency and ac- countability in the prov- ince's hospitals could be on the horizon, if legislation un- der the Quality of Care Informa- tion Protection Act is approved later this year. Impending changes to the act are based on a series of 12 recommendations released last September by a special commit- tee of health-care and legal pro- fessionals. The committee, co-chaired by Dr. Andreas Laupacis, executive director of the Li Ka Shing Knowl- edge Institute of St. Michael's Hos- pital, was tasked with finding ways to improve the act, first passed in 2004, and health sector legislation related to critical incident reviews and investigations. "We did think that the prin- ciple of being able to investigate critical incidents in confidence should be maintained, so the principle of QCIPA should be retained, but our feeling was QCIPA should only be used if ab- solutely necessary," says Laupa- cis, explaining a critical incident is an "unexpected and serious" event that leads to patient harm. He says the QCIPA allows for health-care employees a confi- dential route to provide infor- mation and speculation for an investigation without fear those speculations may be used against them in court. Laupacis says one of the main concerns in the pub- lic eye and legal community was that the QCIPA was being used "to hide actual findings" of in- vestigations, leaving patients or their families in the dark about the results of a critical incident investigation. Proposed changes to the act will be the subject of a profes- sional development and continu- ing education program hosted by the Medico Legal Society of Toronto Jan. 26 at the Doubletree by Hilton. Patrick Hawkins, partner in the Health Law Group of Bor- den Ladner Gervais LLP and a member of the QCIPA review committee, will be part of a panel with Laupacis to discuss the legal implications of the changes. Hawkins says it has long been recognized in common law that in certain circumstances peer and quality assurance reviews are an appropriate method to investigate incidents where some information might need to re- main confidential. He says the difficulty in creat- ing policy is finding the balance between the right to confiden- tiality and the right to access information. He says that while the current version of the act in- cludes those balanced principles, the recommended changes make a far more clear emphasis on striking that balance. "If you go back to the origi- nal QCIPA, I think the balance was there, but it's more expressly stated in the preamble to the new bill," Hawkins says. "The balance is that you need to be open and transparent with patients or their representatives but health-care providers and staff sometimes need to hold confidential discus- sions to identify and analyze er- rors, systemic problems, and op- portunities for improvements." Laupacis says elements key to the legal profession include a strengthened process to prose- cute offences under the Personal Health Information Protection Act by removing a requirement that prosecutions must be com- menced within six months of when an alleged offence occurs and new provisions that make it mandatory for hospitals to report privacy breaches to the Informa- tion and Privacy Commissioner or to relevant regulatory colleges. Maximum fines will also double for offences to $100,000 from $50,000 for individuals and to $500,000 from $250,000 for organizations. Recommen- dations include an affirmation of the rights of patients to access information about their own health care and a clarification that certain information and facts about critical incidents can- not be withheld from affected patients and their families with a requirement that the Ministry of Health and Long-Term Care review the QCIPA for effective- ness every five years. To improve transparency in investigating critical incidents, the committee recommends assurances that pa- tients or their representatives are interviewed as part of a critical incident investigation and that they are informed of the cause, if that is ultimately determined. Laupacis said one of the sur- prising findings by the commit- tee in reviewing the legislation is that there was far too varied use of the QCIPA in critical incident investigations. "We found QCIPA was used with incredible variability across hospitals in this province, from some hospitals saying 'we almost never use QCIPA when we inves- tigate a critical incident because our staff is willing to talk about it or we just feel we don't need it' to hospitals that said 'we put 100 per cent of our investigations under QCIPA.'" Laupacis says. "That surprised us; we figured there would be some variation but not that great. We consulted quite seriously a number of patients and family members who had been in- volved in investigations and they said to us that it looks suspicious or odd to have this great variability across the province." He says because of that the committee strongly recom- mends a standardized use of the QCIPA across Ontario. "We also emphasized that See Patients, page 4 STAY CONNECTED TO YOUR LEGAL NETWORK 2015-16 Atlantic Legal Telephone Directory connects you to your legal community providing accurate and essential legal contact information in all four Canadian Atlantic Provinces. Compiled by the respected legal directories group at Thomson Reuters, you can rely on a directory that grows and expands with your legal community. Each year find new and updated names, mailing addresses, email addresses and phone numbers for lawyers and law offices. Also get quick, easy access to: • Law and Barristers' Societies • Courts of Appeal • Federal Court of Canada • Government of Canada departments • Judicial districts and judicial officials • Incorporated Municipalities • Land registration and information services • The Associations of Land Surveyors • Law Foundation • Provincial government departments • Boards and Commissions • Law Related Services, Institutions and Organizations • University law faculties ... and much more. New Edition Perfectbound • June 2015 $43* • L88804-761 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Stay connected with the 2015-16 Atlantic Legal Telephone Directory. Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation This issue of Law Times is dedicated to long-time art director Lisa Adamson, who passed away January 17, 2016. Most readers won't know Lisa, but she was the person who literally put the words on the pages of Law Times for the last 16 years. She was a talented, kind, and funny person and an integral member of our editorial team. We will miss her greatly. Alicia (Lisa) Adamson June 6, 1960 to January 17, 2016 'The balance is that you need to be open and transparent with patients or their represen- tatives but health-care providers and staff sometimes need to hold confidential discus- sions…," says Patrick Hawkins.

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