Australia: Privilege strengthened for hospital error analysis teams in NSW

Last Updated: 1 December 2010
Article by Dominique Egan

Root Cause Analysis (RCA) is a process to identify systemic hospital error. RCA teams are appointed to investigate serious adverse incidents and provide a report setting out the underlying systemic causes of the incident and recommendations to avoid such incidents in the future.

Following the Walker Special Commission of Inquiry into Camden and Campbelltown Hospitals, legislation was passed in late 2004 introducing RCAs in the New South Wales public hospital system. The Walker Report recommended that the provisions be reviewed after a period of three years.

The protections afforded to RCA teams in the public system have now been extended to private facilities in New South Wales when conducting RCAs (Private Health Facilities Act 2007).

Under the legislation, members of RCA teams cannot be compelled to disclose information acquired, or documents produced, for the purpose of conducting an RCA and it is an offence if they do so.

Shortly after Parliament passed the legislation providing statutory protection to RCA processes in the public hospital system, the NSW Parliament conducted a review of complaints handling within NSW Health, and the report of the Inquiry, Review of Inquiry into Complaints Handling in NSW Health (Nov 2006), recommended a review of the confidentiality protections which applied to RCA and other adverse events investigations and examined the possible extension of the statutory privilege.

In 2009, the NSW Department of Health issued a discussion paper in relation to a review of the statutory privilege given to RCA team members. The discussion paper explored how the recommendations of the Walker Report and the Parliamentary Inquiry into Complaints Handling Committee in relation to legal privilege should be balanced against competing interests of individual accountability and open disclosure to patients and their families about their care and treatment.

The rationale for the privilege which attaches to the RCA process is that in the absence of such protections, clinicians will be unlikely to participate fully and frankly in such a process. Confidentiality and protection to those involved in the review of adverse incidents promotes openness and honesty. Privilege invokes a sense of freedom when discussing incidents which is more likely to result in meaningful recommendations for system change. Privilege encourages health professionals to be open about systemic failures. The Walker Report noted that the perceived threat of litigation against clinicians was a significant reason for the need for privilege.

During the 2009 review process, consideration was given to whether the relevant Acts should be amended to extend privilege to communications between RCA team members and persons who are not members of the RCA team, where those communications occur as part of the investigation, including any documentation produced for the purpose of the RCA investigation in the possession or control of non-RCA team members. Arguments against the retention or extension of privilege are based on a perceived inconsistency between RCAs and open disclosure processes. That said, the provisions for statutory privilege make it clear that the privilege only applies to material specifically created for the purpose of the RCA and does not apply to medical records or other primary documentation relating to the incident under investigation.

NSW Health released its Report in August 2009 in relation to its review of statutory privilege in relation to RCA and quality assurance committees. The report was tabled before Parliament in September 2009 and made a number of recommendations in relation to amendments to the Health Administration Act and the Private Health Facilities Act.

Following the tabling of the report, the Health Legislation Amendment Act 2010 was passed through the NSW Parliament which included amendments to the Health Administration Act and Private Health Facilities Act to strengthen the privilege which attaches to the process RCA. The amendments include:

  • Extending privilege to persons in respect of a document prepared or a communication made for the dominant purpose of the conduct of an investigation by a RCA team;
  • Permits the Chief Executive Officer of a facility or health service to appoint RCA teams to investigate incidents other than SAC 1 and SAC 2 incidents when it is thought that the incident may be the result of a serious systemic problem;
  • A requirement that RCA teams conduct their investigations in a fair and reasonable manner;
  • Requires RCA teams to notify the relevant health service of the identity of an individual who the team believes has engaged in professional misconduct, unsatisfactory professional conduct or unsatisfactory professional performance or who is suffering from an impairment and the notification must identify the basis for the notification;
  • If a notification has been made that a person may have engaged in professional misconduct, unsatisfactory professional conduct or unsatisfactory professional performance or may be suffering from an impairment the notification cannot be adduced or admitted into evidence in any proceedings.

At the time of going to print these amendments were yet to come into effect.

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.

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