After considerable debate, an important amendment to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) relating to hospital quality of care records has been passed by the Ontario legislature. The amendment was included in the province’s budget bill, Bill 173, and received Royal Assent on May 12, 2011. FIPPA will not apply to Ontario hospitals until January 1, 2012.
Prior to this, there was been a great deal of concern expressed by hospitals about the potential detrimental impact of FIPPA on patient safety initiatives given gaps in the freedom of information regime relating to hospital quality improvement records. The ability of hospital staff to openly identify and frankly explore patient safety and quality concerns with a view to improving patient care, without concern of public disclosure, is a fundamental precept of patient safety initiatives.
The exemption will not cover all quality improvement activities undertaken by hospitals. It will apply to “information provided in confidence to, or records prepared with the expectation of confidentiality by, a hospital committee to assess or evaluate the quality of health care and directly related programs and services provided by a hospital, if the assessment or evaluation is for the purpose of improving that care and the programs and services.”
Thus, the exemption will only apply to records generated by or for a hospital committee for purposes of improving the quality of health care, programs and services. Further, the language of the amendment was modified somewhat to identify that the information must have been provided “in confidence” or that the records were prepared “with the expectation of confidentiality”, which suggests some implicit or explicit consideration of confidentiality from the outset.
It should be noted that there may be other exclusions or exemptions under FIPPA that may apply to particular quality and risk management records, but they do not have general application. For example, quality of care information that is prepared by or for a Quality of Care Committee designated under the Quality of Care Information Protection of Privacy Act (“QCIPA”) is excluded from the application of FIPPA.
In reality, the protections under QCIPA are often not well utilized by hospitals given the statutory restrictions on how this information can be used. For example, QCIPA restricts the sharing of quality of care information, even where there is a desire to share that information externally, for example, to a coroner, a patient or a family member. The vast majority of hospital quality improvement activities are undertaken outside QCIPA.
Particular reviews may be undertaken under solicitor and client privilege, and records generated as part of this process would also be exempted under FIPPA. This exemption is discretionary, which gives the hospital flexibility to waive solicitor and client privilege and to share some or all of the information at its discretion. There are a number of requirements that must be met under FIPPA for solicitor and client privilege to apply, for example, communications must be directly related to seeking, formulating or giving legal advice.
In summary, the inclusion of this amendment is a welcome addition for hospitals. It supports current patient safety initiatives and the ongoing learning that is essential to the provision of quality patient care in hospitals.
Our Health Industry Group can provide assistance with all aspects of FIPPA implementation and advice. Please do not hesitate to contact us with your questions.