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Monday, May 23, 2011

Ontario hospitals like Australian precedent for protecting health "quality of care" information

But just what is the "Australian approach"?

WikiMedia Commons-Stethoscopes
In Ontario a move to specifically exempt "quality of care" information from the province freedom of information act through an amendment tucked away in budget legislation has advocates and critics hard at it, with Australia featuring in the fine print as one of the precedents for such a provision. According to the Ontario Hospital Association:
Protecting quality of care information is a universally-recognized standard. The protection for a limited and well-defined class of information related to patient safety and quality of care is found in most other Canadian provinces, the United Kingdom and Australia.  In fact, what Ontario has proposed is less stringent than what is available in these other jurisdictions.
In its submission (pdf) to a parliamentary committee OHA states
"that other Canadian jurisdictions, as well as in the United Kingdom and Australia, exempt access to, and the disclosure of hospital quality of care information, either through their respective freedom of information legislation, or other related legislation."
Appendix D includes the research. It hardly amounts to a survey of Australian laws, focusing entirely on Victoria, with a passing reference to Western Australia.

The proposed amendment to the Ontario Freedom of Information and Protection of Privacy act would exempt
“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.”
According to the OHA research, in Victoria  despite the existence of specific protections for this type of information in the Victorian Health Services Act 1988 
"hospitals generally rely on the exemptions contained in Sections 33 and 35 of the Victoria Freedom of Information Act 1982. Section 33 exempts information from disclosure affecting personal privacy, which is broadly defined. Section 35 exempts documents from disclosure if the material was obtained in confidence or "would divulge any information or matter communicated in confidence".
Hospitals in Victoria report that from an FOI risk management perspective they are very careful about what documentation they create relating to quality assurance activities (i.e., they ensure it is created in a manner that facilitates reliance on section 35). Consequently, in most instances, there is unlikely to be very much by way of difficult documentation to be requested under FOI even if Section 35 cannot be relied upon. Southern Health, the largest public health service in Victoria, reports that based on its reliance on sections 33 and 35 of its FOI legislation, it does not find that FOI legislation significantly impacts its comprehensive safety and quality review programs and accreditation programs for healthcare professionals."
Here is a rundown on the way in which the various Australian state access laws deal with this issue. I haven't looked at differences in the scope of the coverage. Or arguments that protections go too far.

  • If the OHA research is accurate, the Victoria catch all FOI provision (s 38) that exempts information covered by secrecy provisions in acts such as the Health Services Act is infrequently utilised.
  • In Western Australian reliance must also be placed on general exemption provisions as the FOI act (Schedule 1 Clause 14) specifies secrecy provisions in other acts that constitute an exemption but makes no reference to the Health Services (Quality Improvement) Act 1994.
  • South Australia has a similar catch all secrecy exemption (Schedule 1 Clause 12) to  the Victorian FOI act. I couldn't track down the quality of care legislative protection. So general exemptions, or the relevant act-if it creates an offence for disclosure-provide protection.
  • Queensland access to information law specifically excludes "root cause  analysis" documents from the act (RTI act Schedule 1 Clause 9).
  • NSW (the GIPA act Schedule 1 Clause 1) establishes a conclusive presumption of an overriding public interest against disclosure of information specified in Divisions 6B (Quality assurance committees) and 6C (Root cause analysis teams) of Part 2, and section 23 (Specially privileged information) of the Health Administration Act.
  • Tasmania's access to information act has no exemption linked to the secrecy provision in the Health Care Act concerning information gathered by a quality assurance committee (or an exemption based on secrecy provisions in other acts generally-the only information access law that in effect overrides all such provisions) although a number of relevant general considerations would count against disclosure (RTI Schedule 1).
Quality of care information seems generally protected under access to information law and specific health legislation, although there is reliance in some cases on general exemptions, and the approach differs depending on the jurisdiction.

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