QUESTION:
I heard that there was going to be an amendment to FIPPA to extend the protection of quality of care information created outside of the QCIPA process. Is this going to happen?
ANSWER: Yes.
An amendment to FIPPA has been proposed in the budget bill (Bill 173 – introduced on March 29, 2011) which will extend a broader exemption to records created for quality purposes. Assuming that this amendment is passed, there will be two types of protection for quality of care records from access under FIPPA:
Exclusion for QCIPA Records
When the amendments to FIPPA were made to bring hospitals under the legislation, the Quality of Care Information Protection Act (QCIPA) was amended to provide that FIPPA does not apply to "quality of care information" under QCIPA. This is an exclusion from FIPPA, which means that an access request under FIPPA cannot be made for any records of quality of care information.
This was the only protection for quality assurance records in FIPPA. Hospitals had significant concerns that other quality assurance records created outside of the QCIPA process would be exposed to access under FIPPA. Submissions were made to the legislative committee that this would have an adverse effect on the quality of care culture in hospitals. An amendment was suggested by health care organizations including the OHA and HIROC but not passed at that time.
Exemption for Non-QCIPA Quality Records
Now, in the budget bill (Bill 173), the government has introduced a further amendment to FIPPA – to add an exemption under section 18 to provide that the head of an institution (hospital) may refuse to disclose a record that contains "information provided to, or records prepared by, a hospital committee for the purpose of assessing or evaluating the quality of health care and directly related programs and services provided by the hospital".
This proposed amendment is helpful in protecting quality related records created outside of a QCIPA process. In order for the exemption to apply, the information needs to be created by or provided to a committee within the hospital related to quality of care. The amendment also adds the word "directly" in regards to "related programs and services", which appears designed to confine the exemption to direct health care activities as opposed to ancillary or administrative issues which only indirectly impact on quality.
The exemption is discretionary ("the head may refuse to disclose") and is subject to section 23 of FIPPA, under which all exemptions may be overridden "where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption".
Therefore, the exclusion under QCIPA provides a better or stronger protection from access under FIPPA than the exemption for non-QCIPA quality records.
PRACTICAL TIPS
1. Review the Hospital 's quality of care review systems. Specifically:
| ü |
Review the current practice of the hospital with respect to QCIPA reviews – Should the QCIPA process be broadened to include other issues if there is a concern that access to the records will inhibit the review process? |
| ü |
Speak to department heads/managers to determine which other bodies/groups within the hospital are undertaking quality reviews and consider if any of these should be QCIPA protected. |
| ü |
Investigate how quality related activities are done and ask if this is still appropriate and what alternate methods might be. For example, are the activities done by individuals or on an ad hoc basis without direction from a more formal committee process? If so, an alternate method might be to bring it under a committee in order for the exemption or exclusion to apply. |
2. Review documentation practices for quality reviews. Specifically:
| ü |
Develop a standard system for documentation of quality related reviews.
|
| ü |
Develop a record retention policy for documentation of completed reviews. |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
