The “Hospital Secrecy Act” Will Protect the NHS

A Commentary by Fiona McMurran

Niagara residents have worked long and hard to get the Ontario government to pay attention to our concerns about the Niagara Health System’s so-called ‘Hospital Improvement Plan’.

So when word came down last month from the Minister of Health and Long Term Care, Deb Matthews, that she had finally agreed to an investigation of the HIP, we should have been dancing in the streets. Instead, the announcement was greeted here with varying degrees of scepticism—and with good reason. The arms-length, independent review that Niagara called for is not at all what Matthews has in mind. Her proposal is so ridiculous as to be insulting: let the system investigate itself.

There’s not a whole lot of meat on the bone that the McGuinty government has at last deigned to toss in our direction. What we want is an impartial third-party review, and that, quite clearly, is exactly what we are not going to get from this government.
Moreover, any review into the NHS’ Hospital Improvement Plan (HIP) and its implementation is dependent on having access to the relevant information. How were decisions arrived at? Based on what priorities and measures? What were the reactions of the NHS to the public complaints? How did they attempt to do damage control? And exactly how much did these decisions impact quality of care?

Certainly that last question was on the mind of Niagara Falls Mayor Jim Diodati back in April, when he, along with three other elected representatives from Niagara, met with Minister Matthews to ask—yet again—for an independent review of the HIP. In Ray Spiteri’s April 13 article in the Niagara Falls Review, Diodati remarked that the Minister had at last understood that Niagara’s concerns with the HIP were not “ …a result of discontent with the NHS administration alone… the people’s frustration is linked to the poor quality of health care we’re receiving, a lot because of the (plan)…”

Quality of care, hospital and health ministry bureaucrats will assure you earnestly, is what they are all striving for; therefore, it is a constant topic of discussion within hospitals, between and among staff and within committees. It’s been a major preoccupation for the hospital sector in the U.S., the U.K. and Canada for several years.

I’m not for one moment suggesting that front-line hospital personnel do not genuinely want to offer the best possible care to patients—that’s why they got into healthcare in the first place. But, for the administrators of Ontario’s hospitals, quality of care cannot be divorced from risk management—no hospital wants to risk being sued for malpractice.

Here in Ontario, risk management strategies are the business of HIROC, the Hospital Insurance Reciprocal of Canada. This is a not-for-profit organization comprised of medical malpractice insurers that works for, among other clients, the Ontario Hospital Association (OHA).

Pay no attention to the people behind the curtain…

So, how would HIROC and the OHA react to calls for an investigation into what went wrong with hospital restructuring in Ontario’s largest hospital, one wonders? Given all the attention being paid in Ontario hospitals to issues affecting quality of care, surely such review shouldn’t worry them. So why are they behaving as if they have something to hide? And why is the Minister of Health and Long Term Care protecting them?

Deb Matthews’ predecessor as Minister of Health, David Caplan, took the fall on the eHealth scandal, although it was none of his doing—that honour fell to George Smitherman, who was rewarded with a more prestigious cabinet position. Matthews has since done an excellent job of professing that everything is coming up roses in healthcare in Dalton McGuinty’s Ontario, despite the many indications to the contrary.

Last August, after months of delay, Ontario Ombudsman André Marin was finally allowed to release his long-awaited report on the Hamilton-Niagara-Haldimand-Brant LHIN, called The LHIN Spin. Marin pulled no punches in criticising the culture of impunity, secrecy and unaccountability within our LHIN. And Matthews swatted away his concerns as if they were but a cluster of irritating mosquitoes. The LHIN had been fully cooperative with the Ombudsman’s Office, reported Matthews in a media scrum held mere minutes after Marin had said exactly the opposite to the television cameras.

Then another problem raised its head. On October 20, 2010, the province’s Auditor General released a report revealing that Ontario hospitals were using tax dollars to pay healthcare consultants to lobby their own Ministry. The MOHLTC was prepared. On the very same day, October 20, the Ontario government sent out a media release headed “Hospital Records Open to Public Scrutiny”, introducing their own Bill 122, the Broader Public Sector Accountability Act. The main thrust of Bill 122 was to prohibit hospitals and other organizations from hiring lobbyists who are paid with public funds, and to require LHINS and hospitals to report on their use of consultants.

This legislation (Section VIII of Bill 122) was also designed to “improve the transparency and accountability of hospitals by making them subject to the Freedom of Information and Protection of Privacy Act (FIPPA) as of January 1, 2012.” Bill 122 would thus make hospitals subject to the same rules about public scrutiny as public universities and utilities. (Personal health information was exempted under the Personal Health Information and Privacy Act, 2004.)

Certainly, the optics were excellent. Transparency and accountability – nobody was going to argue with that. This new Bill would show that the McGuinty government was sincere about cleaning up its act, by moving to end lobbying in the hospital sector even before the public became aware of the worst. And this might be one way to stifle the calls for the extension of the powers of the Ontario Ombudsman. With Freedom of Information applying to hospitals, the public would be able to get answers directly, rather than relying on an Ombudsman’s investigation.

There was considerable criticism of Bill 122 from both opposition parties; the text had clearly been put together in haste, and needed extensive revision to close loopholes “big enough to drive a Mack truck through”, according to NDP leader Andrea Horwath. Although the Bill prohibits hospitals from using their own funds (tax dollars from the MOHLTC) to hire lobbyists, nothing prevents hospitals from hiring lobbyists using revenues from non-government sources – such as hospital foundations, for example—or from using in-house lobbyists, with the $3 billion that the Ministry had conveniently left on the table.

After pointing out this little anomaly, Peter Kormos summed it up well:  “So we have a fraud [Bill 122] and we’ve got committee hearings that will inevitably flow. I’m looking forward to the delightful exchange between lobbyists, who insist that they’re the grease that makes government work, and the minister, who insists that her phone is on your speed dial and just give her a call any time you want.”

Of course it’s free; you just can’t have it

Kormos spoke true. Instead of responding to concerns voiced by MPPs from both opposition parties, the Liberals cut off debate at Second Reading, and sent the Bill to the Standing Committee on Social Policy.

There were two days of hearings, during which the Committee heard from representatives of several organizations who stressed the difficulties of obtaining information from hospitals and the importance of transparency and accountability. Bringing hospitals under FIPPA, said the representative from the Ontario Privacy Commissioner, “…would enable citizens to obtain the information necessary to scrutinize important public policy choices, such as how their tax dollars are being spent, and to participate fully in the democratic process.”

Most felt that Bill 122, while desirable, didn’t go far enough. The Ontario Health Coalition, for instance, called for Long Term Care homes and Home Care to be included. Several delegations called for the Ontario Ombudsman to be given jurisdiction over the hospital sector. The Registered Nurses Association of Ontario (RNAO) called for Bill 122 to include “mandating the public distribution and posting of reports submitted by hospitals to LHINs, and by LHINs to the ministry.”

Two organizations were concerned about negative ramifications of the proposed amendment to FIPPA:  the Ontario Hospital Association (OHA) and HIROC. Speaking for the OHA, Ross Baker, a health policy analyst from the University of Toronto, called for the protection of quality-of-care information not covered by the Quality of Care Information Protection Act (QCIPA). QCIPA, explained Baker, “allows for discussions and review of serious incidents involving the harm or death of a patient, and protects those discussions from ever being used in litigation or other disciplinary proceedings. The legislation is very clear and sets out strict parameters for what information can be protected, extending only to activities of a specifically and specially designated quality-of-care committee…”

“Nevertheless,” Baker warned the Committee, “conversations about improving quality and patient safety are commonplace in hospitals, occurring in many situations that extend well beyond the meetings of any one select committee. Because Bill 122 only protects the quality-of-care information in QCIPA, any records prepared for or used by a hospital to evaluate and discuss quality, safety and risk management would be available through a freedom-of-information request.”

This, in Baker’s opinion, would jeopardize attempts to improve quality of care. Why? Because hospital personnel would be discouraged from reporting incidents and discussing them if they thought the reports and subsequent discussions might be subject to a freedom-of-information request. Baker claimed that these healthcare workers “fear being named as responsible for poor outcomes.”

Now this is a puzzling statement, since that earlier-mentioned Personal Health Information and Privacy Act protects not only patient privacy, but also information relating to the conduct of any medical professional. So if the patient and the medical professional are protected by other legislation, why should the public not have access to information concerning quality of care?

Jodi Butts, another member of the OHA delegation, responded to a question from the Committee on this very point: “While certainly a lot of these reviews start with an individual patient, they often grow well beyond just an individual patient’s case. What I think Dr. Baker’s study has demonstrated is that many errors are created by a system. Many of the documents generated as part of these reviews don’t necessarily refer to an individual patient, so it doesn’t meet that definition of personal health information because they’re more grounded in system reviews.”

And the OHA wasn’t alone in its nervousness about access to information concerning system reviews and quality of care. On the second day of public hearings, Polly Stevens made a presentation on behalf of HIROC. She explained that Bill 122 would “expose important quality improvement documents” and thereby jeopardize HIROC’s risk management programs that involve detailed self-assessment reports. These reports have helped to bring about improvements in the prevention of adverse events. HIROC maintained that, if such documentation were to be produced or disclosed, it would have a chilling effect on risk management and quality improvement programs.

So HIROC then proposed an amendment to Bill 122, remarkably similar in wording to that put forward the previous day by the OHA, calling for the following to be excluded from FIPPA:
“a record prepared for or by a committee or other body of a hospital for the purpose of risk management or for the purpose of activities to improve or maintain quality of care.”

The NDP’s France Gélinas then asked Stevens to clarify what she considered was put at risk by Bill 122. Stevens felt that individual patients who had suffered were certainly entitled to know the facts about what had happened to them. She didn’t dispute that; however, she said, “What we’re talking about here [in Bill 122] is a big system review. It’s not patient specific.”

On November 29, Committee member and Liberal MPP, Phil McNeely, tried to add the following amendment to Bill 122 to exclude from FIPPA:
“(j) information provided to, or records prepared by, a hospital committee for the purpose of assessing or evaluating the quality of health care and directly related programs and services provided by the hospital.”

The amendment was defeated on a point of order, and Bill 122, unamended, passed into law on December 8, 2010. On January 1, 2012, Freedom of Information would apply to the hospital sector. The Ontario Hospital Association immediately began to schedule workshops and presentations to advise hospital administrators and personnel how best to prepare for the onslaught of FOI requests. (The next one is scheduled for July 7—check the OHA website for details.)

The “hospital secrecy act” returns…

Meanwhile, the question of excluding quality-of-care information from the FIPPA had not gone away. In March, when Bill 173, the Better Tomorrow for Ontario Act, (aka the 2011 Budget Bill) was introduced in the Legislature. On page 31 of the 146-page document was Schedule 15, an amendment to subsection 18(1) of the FIPPA, which called for the following exclusion: “(i) information provided to, or records prepared by, a hospital committee for the purpose of assessing or evaluating the quality of health care and directly related programs and services provided by the hospital.”  In other words, the Budget Bill included an amendment to counteract the very freedom of information access created by Bill 122.

Ms. McMurran goes to Queen’s Park

When I was made aware that the quality-of-care exclusion had reappeared in the Budget Bill, I feared that all the effort on the part of so many people in Niagara—residents and elected representatives alike—to get an investigation into what had gone wrong with hospital restructuring would be for nothing if, in the event of a review, important information regarding quality of care were to be ruled inaccessible because of Schedule 15. Quality of care is such
a broad term that much that we might want revealed to scrutiny would be excluded, rendering an investigation virtually meaningless.

So, with about one day to prepare, I applied, with the help of Kim Craitor, to make a presentation to the Standing Committee on Finance and Economic Affairs, during their single day of public hearings on the Budget Bill, on April 21, at Queen’s Park. My presentation was one of 11 (out of 17) to address Schedule 15; all eleven delegations spoke against it. These delegations included most of Ontario’s major healthcare unions. Far from fearing freedom of information on quality of care, nurses and other hospital workers welcome it. It’s high time the system came under scrutiny, they feel.

The presentations on Schedule 15 effectively undercut the arguments from the OHA and HIROC. The Ontario Trial Lawyers Association (OTLA) disputed the OHA’s contention that FIPPA would undermine patient safety culture, pointing out that the hospital industry had produced no evidence and no examples to prove their assertion. OTLA’s concern with Schedule 15 was that “…the hospital becomes the sole arbiter of what information is released. Its discretion…will be exercised based on the hospital’s best interest, not the individual health care providers working in those hospitals or the taxpayers who provide the primary funding for these important institutions.”

In the opinion of the OTLA, “The best way to inform the public of the quality of their health care system is to allow them to see it for themselves.”

This time, the OHA didn’t make a presentation. Instead, it submitted a 34-page legal opinion in favour of Schedule 15. (Who paid for that, one wonders? Why doesn’t that count as lobbying?) The OHA’s argument had not changed: quality-of-care information not already excluded from freedom of information under other legislation should be protected, because of the effect it would have on hospital personnel.

But which hospital personnel, exactly? Not those in the healthcare unions and associations that spoke against the legislation. Where, exactly, Ontario’s doctors stood was unclear, since there was no presentation from the Ontario Medical Association.

Don’t confuse us with the facts…

Despite the unanimous opposition from all delegations speaking on Schedule 15, the Liberal members of the Committee supported it, while the PC and NDP members were opposed. When Bill 173 came up for clause-by-clause consideration on the morning of May 5, a government amendment to Schedule 15 was presented. The wording now read that the following was to be excluded from the Freedom of Information and Protection of Privacy Act:  ”(j) information provided in confidence to, or records prepared with the expectation of confidentiality by, a hospital committee to assess or evaluate the quality of health care 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.”

The NDP’s Peter Tabuns and PC MPP Toby Barrett voiced their strong opposition, calling for the Committee to respect the opinions voiced by the delegations at the hearings. The opposition parties had the arguments, but the government side had the votes. Schedule 15 was in.

Coincidentally, that afternoon, in the Legislature, NDP Rosario Marchese’s Private Member’s Bill calling for an extension of the Ombudsman’s jurisdiction (to include hospitals, for one) went down to defeat on Second Reading. It didn’t even make it to Committee. One Liberal MPP voted in favour: Kim Craitor.
On April 20, meanwhile, the Canadian Press had reported that a Toronto law firm, Osler, Hoskin and Harcourt, had posted a review of Bill 122, including the following amazing statement: “The eHealth Ontario spending scandal and a local health integration network’s failure to meet requirements for community engagement in decisions involving major initiatives are examples of how, in the future, a hospital’s reputation can be harmed through a (freedom of information) request. Accordingly, hospitals will want to (be) cleansing existing files on or before Dec. 31, 2011 … in order to avoid any reputational risks.” !!!!!
Thanks to the quick thinking of the government in altering the wording of Schedule 15, hospitals don’t have to resort to shredding potentially embarrassing documents; they merely have to declare that records requested under Freedom of Information were “prepared with the expectation of confidentiality”, and they are conveniently off the table.
The rest is silence…?
So please forgive me for thinking that the cards are now stacked (and cemented firmly in place) against Niagara getting any satisfaction whatsoever from this Ministry regarding any meaningful investigation into the HIP. The Powers That Be in the Ontario hospital sector really do not want us to know what’s been going on under their control. While Kim Craitor and the medical professionals of this province cannot get through to this Minister, the OHA, it seems, has no such problem. Democracy is alive and well in Ontario – fish live in trees and eat pencils, and your cheque is in the mail…

NOTES
1. All quotations come from Hansard, the official record of the Proceedings of the Legislature of Ontario, and are accessible on the website of the Legislature of Ontario.
2. I owe an enormous debt of gratitude to Cybele Sack, journalist and patient advocate (ImPatient4Change/Every Patient Matters) who made a presentation on Bill 122, and alerted me to Schedule 15. She has been following the “hospital secrecy” issue from the start.
3. Aspects of the “hospital secrecy act” have been reported in the London Free Press and other media, but the issue somehow failed to attract the notice of journalists in either Toronto or Niagara. QED.

Fiona McMurran is a Niagara resident and representative of the Council of Canadians in this region, and an advocate for fair and accessible health care services. She has also been a frequent contributor of commentary to Niagara At Large.

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