The Quality of Care Information Protection Act, 2004 (QCIPA):An OverviewNote: This overview is presented for the convenience of reference only. Nothing in this overview should be construed as legal advice. You should consult the Act, regulations, and/or a lawyer for all purposes of interpretation. November 2004
QCIPA in a nutshell • QCIPA is designed to encourage health professionals to share information and hold open discussions to improve patient care, without fear that the information will be used against them. • QCIPA does this by providing that information prepared by or for a Quality of Care committee designated under the Act is shielded from disclosure in legal proceedings and from most other types of disclosures, with appropriate exceptions. • QCIPA and its regulations came into force on November 1, 2004. (QCIPA is enabling legislation, however, and does not require a quality of care committee to be established by that date, or at all.)
Background • Quality of care information protection has been recommended for some time in Ontario, e.g., in: • 1990 Prichard Report • 1992 Report of Public Hospitals Act Review Committee • Legislation protecting quality of care information is found in most other provinces (with the possible exception of Quebec), usually in the province’s Evidence Act, and throughout the US. • In the absence of legislation (and also now where QCIPA does not apply), one may arguably rely on common-law privilege (under the “Wigmore” test), but it must be determined on a case by case basis and is not reliable enough to foster open discussion. (Solicitor-client privilege or litigation privilege may also apply in certain circumstances.)
Relationship of PHIPA and QCIPA • Both PHIPA and QCIPA were enacted in Bill 31 (HIPA). Quality of care information protections were consulted on in earlier drafts of health privacy legislation in 1997, 2000, and 2002. • PHIPA deals with personal health information. • QCIPA deals with quality of care information - which is not necessarily information that identifies any patient or anyone. • Quality of care information is defined in connection to a “quality of care committee”. • QCIPA usually prevails over other Ontario legislation including PHIPA unless QCIPA regulation states otherwise. (Under the QCIPA General Regulation, only the Independent Health Facilities Act prevails over QCIPA.)
Which organizations can designate quality of care committee? The following can designate quality of care committees: • hospitals • independent health facilities • psychiatric facilities governed by the Mental Health Act • institutions under the Mental Hospitals Act • long-term care facilities • licensed medical laboratories and specimen collection centres • Ontario Medical Association, in respect of its quality assurance activities with licensed medical laboratories and specimen collection centres [See definitions of “health facility” and “quality of care committee”.]
What is a quality of care committee? Must meet the following requirements: • Performs quality of care function (possibly among other functions, though quality of care functions of multi-purpose quality of care committee must be kept separate - see definition of “functions” in QCIPA General Regulation). • Meets prescribed requirements, i.e., advance formal designation of committee, and the designation and terms of reference must be available to the public [QCIPA Definition Regulation, s.3]. • Must be designated as such by an organization that is eligible to designate quality of care committee. (See previous page.)
When is a quality of care committee needed? • Not all quality of care functions should be conducted in a quality of care committee. (Under PHIPA, s.37(1)(d), personal health information can be used without consent for risk and error management and quality of care purposes - there is no requirement that a quality of care committee be involved.) • Health care organizations need to maintain the ability to exercise their management functions over quality of care issues, which sometimes requires dealing with quality of care issues in a context that will not prevent subsequent uses of the information in a proceeding • Before designating quality of care committee, consider: • whether the restrictions imposed by QCIPA on the information used by the committee will enhance or impede the committee’s functions • need to balance preserving existing institutional committee/organizational structures relating to quality of care with the need to harmonize with the provisions of the new legislation • A single central quality of care committee devoted solely to quality of care functions with the ability to delegate as necessary to other committees or individuals may be the simplest and least risky starting point from a QCIPA perspective
What is quality of care information? The definition in the Act states: “quality of care information” means information that, (a) is collected by or prepared for a qualtiy of care committee for the sole or primary purpose of assisting the committee in carrying out its functions, or (b) relates solely or primarily to any activity that a quality of care committee carries on as part of its functions,… Note: “its functions” means quality of care functions only. See definition of “functions” in s.4 of QCIPA General Regulation.
What is not quality of care information? The definition in the Act continues: “…but does not include, (c) information contained in a record that is maintained for the purpose of providing health care to an individual, (d) information contained in a record that is required by law to be created or to be maintained, (e) facts contained in a record of an incident involving the provision of health care to an individual, except if the facts involving the incident are also fully recorded in a record mentioned in clause (c) relating to the individual, or (f) information that a regulation specifies is not quality of care information and that a quality of care committee receives after the day on which that regulation is made”
How does a quality of care committee get information? Anyone can give any information to a quality of care committee for its quality of care functions. • Even personal health information (without patient consent) • Even quality of care information • Even if other Ontario legislation prohibits it Immunity protects the person disclosing the information. One cannot retaliate against the discloser; to do so is offence.
Legal Privilege in Proceeding • Quality of care information is not admissible in proceedings (see definition below) • One cannot even ask for it, or volunteer it • The Act defines “proceeding”: “proceeding” includes a proceeding that is within the jurisdiction of the Legislature and that is held in, before or under the rules of a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a College within the meaning of the Regulated Health Professions Act, 1991, a committee of the Board of Regents continued under the Drugless Practitioners Act, a committee of the Ontario College of Social Workers and Social Service Workers under the Social Work and Social Service Work Act, 1998, an arbitrator or a mediator, but does not include any activities carried on by a quality of care committee; • “Proceeding” does not include a proceeding under federal jurisdiction, e.g. under Criminal Code or other federal legislation • Note exclusions from what is “quality of care information”. If it is not quality of care information, the privilege does not apply.
Prohibited Disclosures Prohibited disclosures: “Despite the Personal Health Information Protection Act, 2004, no person shall disclose quality of care information except as permitted by this Act.” [QCIPA, s.4(1)] “Disclosure” is defined: “disclose” means, with respect to quality of care information, to provide or make the information available to a person who is not a member of the quality of care committee with which the information is associated, and “disclosure” has a corresponding meaning; [QCIPA, s.1] “member of the quality of care committee” [in the above definition] includes every person who participates or assists with the committee’s functions as set out in clause (c) of the definition of “quality of care committee” in section 1 of the Act. [QCIPA General Regulation, s.3]
Permitted Disclosures - Disclosures to management for quality of care purposes - s.4(3) - Disclosure by management to employees/agents for quality of care purposes - s.4(6) - Disclosures to prevent serious bodily harm - s.4(4) - Disclosures to another quality of care committee - s.3 - Disclosures under other legislation that prevails • Due to QCIPA regs (i.e. Independent Health Facilities Act) • Federal legislation • Legislation in another jurisdiction that applies and prevails
Restrictions on Recipients of quality of care information Recipients of quality of care information are restricted in their subsequent uses and disclosures of the information. • Can only use it for the purpose for which it was disclosed. • Can only disclose it only if the disclosure fits one of the permitted disclosure categories (on previous slide). Quality of care information retains it’s status as such despite subsequent disclosures. This privilege cannot be waived.
Offences Offences for: • Contravention of non-disclosure provisions • Contravention of non-retaliation provisions Fines of up to $250,000 for corporation; $50,000 for individual, as in PHIPA.
Regulations • There is a power to make both Minister’s regulations and Lieutenant-Governor in Council regulations. • Lieutenant-Governor in Council regulations are subject to mandatory public consultation.
Minister’s Regulation Minister has the power to: • specify additional classes of health care providing organizations or health care oversight bodies that are permitted to designate quality of care committees • set criteria that a committee must meet before it can be considered a quality of care committee under QCIPA Minister’s regulation has been finalized and is available on www.e-laws.gov.on.ca
Lieutenant-Governor in Council Regulation Lieutenant-Governor in Council has power to: • specify certain types of information not to be quality of care information • specify provisions of other legislation that will prevail over QCIPA • define any otherwise undefined term in QCIPA Lieutenant-Governor in Council regulation has been finalized and is available on www.e-laws.gov.on.ca.
The RHPA “Quality Assurance Information” Amendment • QCIPA amends the Regulated Health Professions Code, Schedule 2 to the Regulated Health Professions Act, 1991, to provide comparable protection in respect of quality assurance information collected by a College’s Quality Assurance Committee (“QAC”). • Amendment replaces the Code’s previously existing “evidence in proceedings” provision.
QCIPA Resources • MOHLTC website: www.health.gov.on.ca (under “health care providers” under “legislation” under “Bill 31: HIPA, 2004”) • Act and Regulations available on E-laws: www.e-laws.gov.on.ca • QCIPA Toolkit: available through the Ontario Hospital Association