Change is finally coming. On June 1, 2016, twelve years after the Quality of Care Information Protection Act, 2004 (QCIPA, 2004) came into force, it is anticipated that QCIPA, 2004 will be repealed and replaced with the Quality of Care Information Protection Act, 2015 (QCIPA, 2015). QCIPA, 2015 is, in many ways, very similar to its previous iteration, but with some very important upgrades.
When first introduced, one of the goals of QCIPA, 2004 and its intersecting legislation was to improve the identification and investigation of critical incidents occurring within an institutional setting. A critical incident is an unintended event that occurs when a patient receives treatment in an institution that results in death or serious disability, injury or harm to that patient, and the event does not result from the patient’s underlying medical condition or from a known risk inherent in providing the treatment. (Reg 965 under Public Hospitals Act) The legislation governing Public Hospitals requires them to disclose a critical incident as soon a possible to the affected patient, or the person lawfully authorized to make treatment decisions on behalf of the affected patient, or to the patient’s estate trustee (in the case of death). What must be disclosed are: (1) the material facts of what occurred; (2) the consequences for the patient, as they become known; and (3) the actions taken and recommended to be taken to address the consequences to the patient, including any healthcare or treatment that is advisable. This information must be recorded in the patient file and be accessible to the patient. A hospital must also have a system in place to ensure that every critical incident is analyzed and a plan developed to avoid or reduce the risk of re-occurrence.
When QCIPA, 2004 in invoked, it shields from disclosure any information that goes to the Quality of Care Committee about the causes of the critical incident. This means that patients and their families are too often left in the dark about what went wrong in the care at issue. A recent case reported in the Toronto Star about the baby who was declared dead, only to be discovered an hour and a half later alive, was investigated under the cloak of QCIPA, 2004. The parents were left with no answers as to how the mistake happened and are suing the Hospital to get some answers.
QCIPA, 2015 will bring with it some welcome changes, including the right of patients or their authorized representative to receive information about the results of any QCIPA, 2015 investigation, including what happened, why it happened and what measures (if any) the organization intends to take to prevent future incidents. This information, although available to the patient and their representative, will still be protected from disclosure and use in a civil proceeding. This means that even if the hospital tells you exactly what went wrong and why, you can’t use that information to form the basis of a civil law suit.
Interviews with the affected patient and/or their decision makers will become a mandatory part of the process. There will also be a mechanism established to ensure that the application of QCIPA, 2015 will be more predictable between hospitals. Currently, some hospitals invoke QCIPA to investigate all critical incidents, while others only rely on QCIPA only where there are multiple actors involved in a critical incident and the cause of the event is unknown. Some hospitals never use QCIPA to investigate a critical incident.
Although QCIPA, 2015 will not be retroactive, it will be a new tool to help patients and their families figure out what went wrong in a particular case. From there, you should contact a lawyer at Neinstein LLP to assist you in pursuing a civil case against the doctors and/or hospital who may be held legally responsible for your damages.