Healthcare practitioners in Newfoundland and Labrador cannot claim privilege over "quality assurance" information when it comes to sharing it with professional regulatory bodies. A recent decision of the NL Court of Appeal requiring disclosure of quality assurance information relating to adverse incidents – a controversial topic across Canada – will have wide-ranging impact in NL and may impact other Canadian provinces with similar health laws.
In NL, many regulatory bodies and professional associations are vested with statutory powers under the NL Public Inquiries Act when conducting investigations into their members' conduct – and NL healthcare authorities can no longer refuse to share quality assurance information with any of them based on statutory prohibitions in the NL Evidence Act.
And although the decision is primarily grounded in NL laws, its impact isn't necessarily limited to NL: multiple provinces and territories have similar laws granting similar investigatory powers, along with similar prohibitions or privileges designed to protect quality assurance information. The recent NL Court of Appeal decision signals a policy favouring disclosure of this information, and healthcare stakeholders outside of NL should carefully evaluate the impact of this decision in their own provinces or territories. McInnes Cooper's Trent Skanes represented the successful professional regulatory body.
Here's what the NL Court of Appeal decided and how its decision will change the traditional privilege over quality assurance information in the healthcare sector in NL, and maybe elsewhere in Canada.
The Underlying Issue. Many healthcare institutions conduct quality assurance reviews after an adverse incident. These reviews often involve peer reviews by doctors and nurses along with the sharing of other sensitive information – all with the goal of improving the delivery of health services in the future. But there's been uncertainty around healthcare authorities protecting this information and sharing it.
On one hand, healthcare professionals were reluctant to share it with anyone – even with professional regulatory bodies – on the basis that section 8.1 of the NL Evidence Act generally prohibits anyone from disclosing quality assurance information compiled by a health authority as part of a quality review to determine systemic causes of adverse incidents. Yet on the other hand, regulators are mandated to evaluate allegations of misconduct by licenced health care practitioners, and obviously quality assurance information would be key to such an evaluation.
The Case. This legal uncertainty was clarified in the recent case of Eastern Regional Integrated Health Authority v. Association of Registered Nurses of Newfoundland and Labrador. The Association of Registered Nurses of NL was investigating a nurse involved in an adverse incident in which a patient died in hospital to determine if there was conduct deserving of sanction. When investigating a licensed member's conduct, the Association is empowered with inspect-and-copy powers in its enabling statute and also with specific commissioner powers under the NL Public Inquiries Act.
Under these powers, the Association requested quality assurance information from Eastern Health, the relevant healthcare authority with jurisdiction over the hospital in which the adverse incident occurred. Eastern Health refused on the basis the statutory prohibition in section 8.1 of the NL Evidence Act applied to prohibit the sharing of the information. The Association then subpoenaed the information. In response, Eastern Health brought a motion to court to quash the subpoena on the basis of section 8.1 of the NL Evidence Act. The Association was successful in the first instance: the lower Court ordered Eastern Health to disclose the quality assurance information to the Association. Eastern Health appealed.
The Appeal Decision. The NL Court of Appeal upheld the disclosure order, essentially deciding that the commissioner powers that the NL Public Inquiries Act grants to bodies such as the Association trumps the prohibition against disclosing quality assurance information in the NL Evidence Act:
- The Public Inquiries Act provides an exception to the statutory prohibition in the Evidence Act: under it, healthcare authorities shall not refuse to disclose information to an investigator empowered by the Public Inquiries Act.
- Consistent Purpose. Disclosure to such investigators is consistent with the public safety purpose of both laws. The investigations and quality reviews are both "in house": neither is public, both have a public safety focus, and both are entitled to the same information.
- Practical Benefits. Information sharing with investigators has the practical effect of encouraging efficiencies of time and cost, as well as reducing the likelihood of two different bodies considering inconsistent information about the same incident.
The Implications of the Decision. This decision will have wide-ranging impact in NL and quite possibly other Canadian provinces with similar health laws:
- NL Impact. In NL, many other regulatory bodies and professional associations (social workers, psychologists, and massage therapists, just to name a few) are vested with the same inquiry powers when conducting investigations into their members' conduct. This decision dictates that healthcare authorities in NL can no longer refuse to share quality assurance information with any of them.
- Canadian Impact. This topic remains controversial across Canada, so healthcare stakeholders beyond NL should also carefully evaluate the impact of this decision. Although the decision is primarily grounded in the specific statutory provisions in the NL Public Inquiries Act and Evidence Act, it may impact a number of provinces and territories with similar laws granting similar investigatory powers, and similar prohibitions or privileges designed to protect quality assurance information.
- Quality Assurance Reviews. The decision signals an underlying policy decision favouring disclosure of information relating to adverse incidents in the right circumstances over shielding such information, and sheds some light on courts' preferred approach. Canadian health authorities should take a look at how they conduct quality assurance reviews to determine whether they are willing or able to share quality assurance information with healthcare regulators during an investigation upon request by a healthcare regulator or professional association. On the other side of the coin, healthcare regulators and professional associations should take another look at their statutory powers to determine whether they have a good legal basis to challenge the quality assurance privilege in their respective province. Finally, both should consider whether to engage in discussions about how to handle the issue – rather than litigate over it.
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