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Tuesday, May 3, 2011

The truth about OHA's "truth"

In the last few days, the Ontario Hospital Association (OHA) released a memo entitled, "The truth about FOI and hospitals' quality of care records" -


Recently, in a memo called “The truth about FOI and Hospitals’ Quality of Care Records”, the Ontario Hospital Association, a lobby group for hospitals, suggested that “public interest groups” were attempting to “grossly mislead” the public about what Bill 173 schedule 15 (popularly known as the “hospital secrecy law”) would do or not do. We cannot take credit for inspiring their rhetoric.

But let’s test their assertions.

OHA Assertion #1: OHA claims it asked the government to include hospitals under the Freedom of Information and Protection of Privacy Act (FIPPA) in 2009 in order to demonstrate its commitment to public transparency and accountability. It further claims that the exemption in Bill 173 s.15 is for a “narrow and well-defined class of quality information” that it seeks to shield from public disclosure.

Fact: The OHA is seeking an exemption to FIPPA that will permit hospitals to negate transparency and accountability by shielding from disclosure “information provided in confidence to, or records prepared with the expectation of confidentiality by, a hospital committee to assess or evaluate the quality of healthcare 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.” (italicized is the most recent amendment to s.15, by the Liberal government).

This extremely broad ranging exemption belies the assertion of the OHA, as it demonstrates a retreat from transparency and accountability. The most recent amendment allows hospital executives to shield documents from disclosure simply by stamping them as “confidential” or by stating that they were intended to be private.

Press reports in the past month have exposed advice by a leading law firm which represents many Ontario hospitals (and whose expertise is still listed on OHA’s website), urging them to avoid the reputational risk of an e-Health like scandal by “cleansing existing files” before their documents become available to the public under FIPPA in 2012. It is evident from this advice and from the OHA’s efforts to lobby the government to pass Schedule 15, that hospitals were not pleased when the Broader Public Sector Accountability Act (BPSAA) – transparency and accountability legislation – passed in December 2010. Hospitals want to continue to control the disclosure of documents and withhold those which may reveal “systemic failures” or put their reputations at risk.

The BPSAA – the government’s response to the $1 billion LHIN scandal – put hospitals under FIPPA and banned the use of taxpayer-funded hospital lobbyists.

Transparency and trust are essential in public services and we are opposed to any attempt by hospitals to withhold public information, whether by “cleansing” records or by pressing for the enactment of a “hospital secrecy law.”

OHA Assertion #2: The OHA claims that disclosing hospital quality information to the public would create a “chilling effect” – that staff would be unwilling to come forward with their concerns if they might be exposed to external analysis and public opinion. It calls closed discussions “a culture of safety” and it says that if documents are disclosed, it could be detrimental to patients.

Fact: This definition of a “culture of safety” suggests a culture of protecting hospitals, not patients. It is a recipe for keeping the public in the dark.

We believe that sunshine is the best disinfectant. When hospitals were mandated to disclose their mortality ratios, we found out Scarborough hospital wasn’t doing so well. That bit of exposure enabled this hospital to make safety improvements and it is pleased with its progress.[1] When hospitals were mandated to report on rates of hospital-acquired infections, media coverage led to more public awareness and to an effective effort to find solutions.

The OHA has not provided any evidence that shielding quality of care information from disclosure, beyond QCIPA, will improve patient outcomes. We know that transparency works and we believe that more transparency about quality of care, in the form of public information requests to hospitals under FIPPA, will work even better.

Other government services have already come under FIPPA and the “chilling effect” argument could be used by any of them. Nobody suggests that other organizations should be able to subvert the principles of FIPPA, which states “that information should be available to the public and that necessary exemptions from the right of access should be limited and specific” (FIPPA 1(a)).

OHA Assertion #3: The OHA claims that Bill 173 s.15 is comparable to legislation in other jurisdictions and may be less restrictive.

Fact: Ontario was the last province to put hospitals under freedom of information legislation. We are finally catching up to other provinces with the insertion of hospitals under FIPPA in the Broader Public Sector Accountability Act (BPSAA). This budget amendment (Bill 173 s.15) is a step backwards in efforts to improve patient safety.

The OHA calls the disclosure exemption provisions in Quebec “weaker and narrower” than those found in other provinces. In fact, in Quebec, there is no specific exemption for quality of care information. Thus, the public interest in Quebec is better protected than would be the case in Ontario if Schedule 15 passes.

The remainder of the OHA’s jurisdictional analysis also appears to be biased. For example, the Evidence Act in Alberta is not directly comparable to the exemption in Bill 173 s.15, as it applies to lawsuits. A full jurisdictional review by an independent legal expert agreed upon by all concerned parties in this debate should be undertaken.

In the U.S., the Institute of Medicine – the health arm of the National Academy of Sciences and an authoritative independent voice on patient safety – released a landmark report in 2001 called Crossing the Quality Chasm: A New Health System for the 21st Century. It described “the need for transparency” as one of the ten rules for a safer, more effective, patient-centred, timely, efficient and equitable healthcare system.

OHA Assertion #4: The OHA claims that Bill 173 s.15 applies only to quality of care information prepared for a committee, not all quality of care records.

Fact: The OHA and the government did not define the term “hospital committee.” We know that the OHA considers QCIPA committees too narrow and we know that the language of this amendment has been adjusted several times. The government has had an opportunity to define this term but it has chosen not to do so. We can fairly conclude that any quality of care information that hospital executives don’t want to share can be funnelled through a committee. This very note, “The Truth about OHA’s “truth””, could be assigned to a committee, under such vague language, and shielded from public disclosure. So could notes based on a discussion about quality which takes place between two doctors in the corridor.

This is not speculation. A memorandum from Borden Ladner Gervais by a health lawyer who has represented HIROC, the hospitals’ malpractice insurance company, provides practical tips to hospitals including one to “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]

OHA Assertion #5: OHA claims that QCIPA doesn’t protect enough information, because it doesn’t protect the “everyday” discussions that healthcare professionals regularly have relating to quality, safety and risk management. Information which might be shared with other hospitals about “lessons learned” and “system failures” are also not protected by QCIPA. And the OHA says QCIPA is a slow mechanism of disclosure to inform patients about investigations, so many such activities are conducted outside QCIPA.

Fact: QCIPA – the Quality of Care Information Protection Act – is a vehicle for private discussions of medical errors related to lawsuits and other adverse events. This Act, which the OHA claims is too strict, may actually be too broad to safeguard the public interest. The OHA has already suggested that if forced to disclose information under FIPPA, hospitals may attempt to withhold that information using QCIPA. We are opposed to efforts to shield public information from disclosure and we look forward to the opportunity to challenge provisions in QCIPA which may allow the OHA to do this.

The OHA is right about one thing. QCIPA doesn’t protect “everyday” discussions about healthcare quality and it doesn’t shield “lessons learned” and “system failures” from public disclosure. And that’s a good thing. Those are precisely the kinds of information the public needs to know. Hospitals are funded with taxpayer money and they should be transparent and accountable to the public.

The argument that QCIPA is too slow a tool for disclosure also illustrates our point – if QCIPA is too slow, why would we want to slow down FIPPA, by shielding even more information from disclosure, and then requiring patients, families and the public to undergo lengthy appeals to the Information and Privacy Commissioner? As the Ontario Nurses Association (ONA) put it, in its testimony opposing Schedule 15, “the process to put in an appeal of a decision to not disclose information under FIPPA is a lengthy and litigious one that many organizations and most members of the public simply will not undertake.” Expediting disclosure is in the public interest and that is a very good reason to vote against Schedule 15.[3], [4]

OHA Assertion #6: The OHA gives some examples of quality information which it doesn’t think should be shared with the public. It refers to a hospital with elevated rates of C. difficile, often a hospital-acquired infection and suggests that information which should be shielded from public disclosure includes reviews of infection control practices, changes in the working environment, and other contributing factors. The OHA also suggests that incident reviews, leading to identification of failures, recommendations for improvement and prevention of reoccurrences must be done in a sheltered environment.

In committee testimony for the same amendment in its previously defeated incarnation to the BPSAA in 2010, the spokesperson for HIROC, the hospitals’ malpractice insurer, suggested other questions which she thought weren’t adequately shielded from public disclosure: “Do you have a fever protocol for paediatrics? Do you have physicians personally see patients before they’re discharged?”

Fact: This kind of information – about “system failures” – is exactly what we want to know about and what the OHA thinks the public shouldn’t get. Have hospitals implemented the recommendations resulting from analysis of the SARS outbreak? Do hospitals have good isolation protocols and are they well implemented? What about for a specific department or a specific illness? Answers to these questions are not available under any other current legislation and can only be addressed through public requests for information under FIPPA. The public has a right to know and transparency works to improve patient safety and save lives.

As for incident reviews, these are sometimes conducted without the input of the patient or family affected, and without analysis of the impact of an adverse event on a patient, so conclusions may be inaccurate and unverified. While personal health information must absolutely be protected, the public has a right to know: how many of these root cause analyses have been completed; did they result in binding recommendations; were those recommendations implemented, measured and enforced; and have they been effective in preventing recurrence?

Schedule 15 greatly limits the public’s ability to get answers to questions about priority setting policies and the extent of service cutbacks, which are ongoing concerns that have tremendous impact on patient safety.

We have many other questions about hospital quality which hospitals won’t answer if Schedule 15 passes. We are also happy to help people with specific healthcare concerns develop system-based questions of public interest value. If you want to know what is going on in your hospital and would like some assistance filing a FIPPA request, please contact us at impatient4change@gmail.com . Our goal is to protect the rights of patients and the public to access healthcare information including information about hospital quality.

OHA Assertion #7: The OHA claims that the risk of public disclosure of quality information may lead staff to stop identifying, commenting on or participating in investigations of patient care.

Fact: It is totally unacceptable to suggest that healthcare professionals won’t file reports about patient care and hospital quality. They have a professional responsibility to file these reports. The Ontario Nurses Association, CUPE Ontario, OPSEU and SEIU, all of whom represent healthcare workers, are opposed to Schedule 15 and in favour of transparency.

The Ontario Nurses’ Association (ONA) wrote in its submission to the Finance Committee that:
“the intent of Schedule 15 in Bill 173 appears to be counterproductive to the government’s intent to move forward with a quality agenda in Ontario hospitals...Quality care is a fundamental concern for nurses. Restrictions on access to information and records on quality health care provided in hospitals is a concern not only to nurses but to our patients. Schedule 15 in Bill 173 must not be passed since it will exempt the disclosure of information from many important hospital committees related to the quality of health care provided by our hospitals. This is not in the public’s interest, nor in the interest of the public’s right to know about quality issues in our hospitals. We respectfully submit this recommendation and request that it be given serious consideration by the Standing Committee so that patients in hospitals not only receive the quality care they deserve, but are able to access information and records related to the provision of that quality care.”

OHA Assertion #8: The OHA refers to sheltered discussions as “open”, “safe” and “protected”. And they say they will only use the amendment as “intended”.

Fact: To build a province whose healthcare system is truly open and transparent to the public, whose culture is safer for patients, and where public access information is protected, we must stop Schedule 15, the “hospital secrecy law.”

Unfortunately, when the OHA, in their memo, uses the word “open”, it means “internal” and when it uses the word “protect” (as it did 20 times in its memo), it means “from public disclosure”, “secrecy”, and “reputations.”

There are other problems with Schedule 15. The amendment is being rushed through in a budget bill with insufficient public consultation or debate. The amendment reverses the onus of FIPPA -- exemptions must normally be limited, specific and proven by the party which wants to withhold the information; in the case of the “hospital secrecy” amendment, the public would have to prove why its interest outweighs the hospital’s need to withhold the information. This contradicts the basic principles upon which FIPPA is based.

In a democracy, the government’s sense of balance must be weighted in favour of the public interest. Hospitals receive public funds and so must be accountable and transparent to the public. We hope the government will withdraw Schedule 15.

[1] Scarborough Hospital dramatically improves mortality ratio for 2010: http://www.tsh.to/pages/TSH-dramatically-improves-HSMR-results-for-2010

[2] Hawkins, Patrick et al. BLG “FOI-ables Bulletin. April 8, 2011. http://www.mondaq.com/canada/article.asp?articleid=129304

[3] We agree that personal health information must be protected and that it is already well protected under the Personal Health Information Protection Act (PHIPA). Patient privacy is essential and is not compromised by FIPPA.

[4] The Excellent Care for All Act (ECFAA), which the OHA refers to in their memo, has a noble name. But nothing in this law replaces the provisions of FIPPA. FIPPA alone provides a means to access information without all the filters of a hospital’s risk management department. The ECFAA provides hospital information in glossy bureaucratic reports, but FIPPA provides raw data, emails, internal reports, statistics, and meeting minutes, so the public can draw its own conclusions.

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