Grey area, uncertainty still surround QCIPA

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Although the purpose of the Quality of Care Information Protection Act (QCIPA) is to encourage openness in discussions surrounding critical incidents so they can be prevented in the future, Mahsa Dabirian, partner at Bogoroch & Associates LLP, says the transparency the legislation is intended to promote hasn’t always materialized.

According to the Ontario Ministry of Health’s website, QCIPA “allows health professionals to have open discussions about critical incidents involving patient care and quality improvement matters in general,” and creates a safe space to explore areas of quality improvement, including potential causes of critical incidents, “without fear that the information will be used against them.” The legislation applies to hospitals, independent health facilities, long-term care homes, licensed medical laboratories and specimen collection centres.

The investigation of critical incidents in health care facilities and hospitals has been longstanding, and legislation around these investigations started with QCIPA 2004. It provided a “cloak of confidentiality” around internal investigations of critical incidents at hospitals, based on the rationale that in order to understand the cause of an incident to prevent it from occurring in the future, treatment providers and staff “should feel comfortable being frank and forthright about what occurred and why,” Dabirian says, and not be reluctant to share information — but that open culture didn’t happen, at least from a patient perspective.

“There was widespread discrepancy with hospitals invoking its protection, with some using QCIPA 2004 with every incident and others never using it,” she says. “This prevented patients and their families from learning about what happened and what steps were taken to prevent the critical incident from happening again in the future.”

Another problem with QCIPA 2004 was that the definition of “quality of care information” that could be withheld from patients was very broad, and would be used to shut patients out.

In 2016, a new act to replace QCIPA 2004 was passed, QCIPA 2016. The intention of the act, reflected in the preamble, was to encourage patients and their families to participate in discussions around their health care, and to promote health care providers being more transparent in the information being shared with patients.

QCIPA 2016 also specifies that some information cannot be protected as “quality of care information,” including the facts of what occurred; what the quality of care committee or health facility has identified as the cause of the incident; the actions taken and recommendations given to address these consequences; and any systematic steps to avoid future similar incidents.

Despite the intention to add clarity, there’s still a lot of grey area surrounding QCIPA, Dabirian says. For example, there are still hospital reviews being conducted without invoking QCIPA, which raises questions about what information arising from an investigation ought to be given to patients, families and lawyers. In those circumstances, can common law privilege apply, or are patients and lawyers allowed access to the same information that would not be protected under QCIPA? Another example illustrating the uncertainty of disclosure obligations around post-incident investigations is morbidity and mortality rounds, which may include a discussion with entire medical departments or residency classes about the incident and what was learned. In some cases, written materials are prepared by doctors involved in an incident. Do patients get to learn what was discussed or get access to the presentation material, such as handouts or power points slides?

“We have cases right now where a case review had been done at the hospital but it wasn’t done pursuant to QCIPA, so where does that leave us?” Dabirian asks. “Are we entitled to the facts of what occurred? To what the facility identified as the common causes of the incident? Are they going to take a blanket privilege? Rely on common law privilege? Those are the questions we are contending with right now.”

The law wants people to have access to information, "but at the same time is quite protective of doctors and health facilities to allow them to have discussions,” she says. The legislation wants to balance the good of enabling health professionals to have candid discussions surrounding critical incidents, on the theory that open discussions will improve quality of care for future patients, against the right to information of patients who have had critical incidents befall them. Dabirian would say law on this issue “still has limited transparency.” According to her, there needs to be clarity as to the parameters of privilege for any post-incident investigation that is not conducted pursuant to QCIPA 16 as well as a more robust approach to patients’ rights as already articulated in QCIPA 16.

“That’s the hope of QCIPA — but there is a lot of grey area for sure.”