The Quality of Care Information Protection Act, 2016 (QCIPA 2016) is one step closer to becoming law. Bill 119, the Health Information Protection Act, 2016 (HIPA), passed third reading in the Ontario legislature on May 5, 2016. Once proclaimed into force, HIPA will repeal the Quality of Care Information Protection Act, 2004 (QCIPA) and replace it with QCIPA 2016. HIPA will also amend the Personal Health Information Protection Act, 2004. In light of the broad overhaul of QCIPA, health facilities will need to undergo a comprehensive review of their risk and quality policies, processes and systems.
Since QCIPA came into force, one of the main criticisms of the legislation has been its stringent restriction on the disclosure of quality of care information, even in circumstances where a health facility may wish to disclose. In September of 2014, a committee was established to review QCIPA and offer advice to the government on how to improve the legislation. The committee’s extensive research culminated in a report entitled the QCIPA Review Committee Recommendations. Many of the recommendations advanced in that report have been incorporated into QCIPA 2016.
Key Definitions and Overview of Changes
- Preamble and Purpose – QCIPA 2016 incorporates a new preamble and purpose statement, which balance the need for health facilities to engage in confidential discussions about errors, systemic issues and opportunities for quality improvement in health care delivery, with the right of patients to access information about their health care.
- Critical Incident – QCIPA 2016 includes a new definition of “critical incident.” A critical incident is defined as, “any unintended event that occurs when a patient receives health care from a health facility that, (a) results in death, or serious disability, injury or harm to the patient, and (b) does not result primarily from the patient’s underlying medical condition or from a known risk inherent in providing the health care.” This is the same definition that is applicable to public hospitals, which are already subject to disclosure of critical incident requirements.
- Health Facility – QCIPA 2016 applies to a “health facility,” which is defined as a public hospital, private hospital, psychiatric facility, independent health facility or a “prescribed entity that provides health care.” Current regulations under QCIPA provide that long-term care homes, laboratories or specimen collection centres are “prescribed entities” for the purposes of QCIPA. Regulations will need to be developed pursuant to QCIPA 2016, including in regards to “prescribed entities”.
- Quality of Care Committee (QCC) – This is defined as a body of one or more individuals that performs quality of care functions and that is established, appointed or approved by a health facility or a combination of health facilities. This definition is largely the same as under QCIPA. However, under QCIPA 2016, a QCC can be established jointly by more than one health facility.
- Quality of Care Functions – QCIPA 2016 defines quality of care functions to include “activities carried on for the purpose of studying, assessing or evaluating the provision of health care with a view to improving or maintaining the quality of the health care.” In addition, QCIPA 2016 explicitly includes conducting reviews of critical incidents.
- Quality of Care Information – “Quality of care information” has been redefined under QCIPA 2016 and expressly includes information that “relates to the discussions and deliberations of a [QCC] in carrying out its quality of care functions,” as well as, “information contained in records that a [QCC] creates or maintains related to its quality of care functions.”
The definition explicitly excludes information relating to a patient in respect of a critical incident that describes: the facts of what occurred; what the QCC has identified as the cause or causes of the incident; the consequences of the critical incident to the patient as they become known; the actions taken and recommendations made to address the consequences; and, the systemic steps, if any, that a health facility is taking or has taken to avoid or reduce the risk of further similar incidents.
- Critical Incident Reviews – In conjunction with these changes, amendments to Regulation 965 under the Public Hospitals Act have been proposed that would impose additional requirements on hospitals with respect to critical incident reviews. These amendments require the establishment of a system for ensuring that a committee appointed by the hospital reviews every critical incident as soon as is practicable after the critical incident occurs. This committee must include a patient relations coordinator. In addition, there is a requirement to offer to interview the patient during the review process. Health facilities cannot withhold critical incident information from affected patients.
Under QCIPA 2016, investigations of critical incidents can involve multiple health facilities. QCIPA 2016 explicitly permits the sharing of quality of care information between QCCs. However, this information sharing process cannot disclose more personal health information than is reasonably necessary to conduct quality of care functions.
QCIPA 2016 allows the Minister of Health and Long-Term Care to make regulations restricting or prohibiting the use of QCCs for the purposes of reviewing critical incidents.
Implications for Health Facilities
In light of the broad overhaul of QCIPA, we recommend that health facilities conduct a comprehensive review of their risk and quality improvement policies, particularly with respect to critical incident reviews and disclosure. Health facilities will need a system in place to consider the threshold issue of whether a particular incident is a “critical incident” within the QCIPA 2016 definition.
In addition, despite the ability to share more infomation with patients, the restrictions against disclosure of quality of care information still apply in the context of legal proceedings and limit the ability of health facilities to use such information in the context of related professional practice, credentialing and performance management processes. Health facilities must ensure that processes are in place so that identified discrepancies or professional practice issues can be investigated and reviewed outside of the QCIPA 2016 framework.
The scope of the regulation-making authority poses a number of questions in terms of how this legislation will be rolled out. Miller Thomson’s National Health Industry Group has extensive experience advising clients with respect to QCIPA and related processes. We will be following any new developments closely.