Hospitals still use flawed secrecy law to review medical errors

As the government drags its heels over amending the health secrecy act, hundreds of critical care incidents are still being investigated under the flawed legislation, the Star has learned.

Thestar.com
May 29, 2015
By Olivia Carville

Hospitals continue to invoke a controversial health secrecy law when they investigate critical medical errors, despite a government report that in March highlighted serious flaws in the legislation.

In the past week, the Star has surveyed 15 hospitals in the GTA and found more than 200 critical or severe incidents had been handled under the act since April 2014 - most of those while the legislation was under active review by the province. This includes at least 11 patient deaths.

Even since the government-commissioned review called for significant changes to the act, hospitals have continued to invoke the flawed legislation in at least 29 incidents of patient harm, the Star survey found.

While the government drags its heels over amending Ontario Quality of Care Information Protection Act (QCIPA), some GTA hospitals are still invoking the law every time a critical care incident occurs.

Families who have been denied information about the death of a loved one under QCIPA are now urging the government to ban all hospitals from using it until improvements are made.

The law was enacted in 2004 to allow health workers to speak freely about medical errors in a closed-door environment, in hopes of preventing future incidents.

But, it also grants hospitals the power to keep the results of these investigations secret from the public and grieving families.

The Star first unveiled this secrecy loophole back in early 2013, when a baby was wrongly pronounced dead at Humber River Hospital and no details about the incident or what was being done to prevent it happening again were released to the public.

Over the past two years, critics have slammed the quality-of-care law, claiming hospitals have used it intentionally to sweep medical errors under the carpet.

In the wake of growing calls to amend the legislation, Health Minister Dr. Eric Hoskins launched a review of QCIPA last June.

The review panel found serious holes in the system and called for significant changes, including a requirement to tell families how a medical error occurred, give them the right to request an independent investigation, and to create a public database of all critical-care incidents in Ontario hospitals. The panel did not recommend that hospitals stop enforcing the act until the changes were made.

Hoskins told the Star in a written statement Friday that he has been working with health-care partners to “determine what steps we will take” in response to the review panel’s recommendations.

“The review and our consideration of the expert panel’s recommendations is one of many steps we are taking to further ensure transparency in the heath care system,” Hoskins said.

“I am looking forward to sharing the results of that work in the near future.”

Hoskins did not provide a timeline as to when this announcement will be made.

For Arvin Minocha, the minister’s promise is not enough.

He wants all hospitals to stop using the act until the legislation is amended.

Minocha’s 33-year-old sister Pamela died in a Toronto hospital after being admitted with a toothache, and he says his family still doesn’t know what happened because St. Joseph’s Health Centre invoked QCIPA.

“Many of these hospitals preach a culture of patient safety, transparency and accountability, but the way they invoke QCIPA is completely contradictory to that culture,” Minocha told the Star Friday.

“The family is the most impacted here and to still not have answers or know what exactly can be done to improve a situation does not help with the grieving process - in fact, it hinders it,” he said.

The quality-of-care act trumps all other legislation, including freedom-of-information law, and it is up to the discretion of hospitals whether or not they conduct investigations under its protection or not.

One major criticism of the act, which was identified in the review, is the wide variability in the way Ontario hospitals enforce it.

The Star survey found some of the 15 GTA hospitals invoke it in every single critical-care incident, whereas others never use it at all.

The University Health Network (UHN), which oversees four major hospitals in Toronto, handles every critical or severe incident under QCIPA.

Since April last year, UHN has reviewed 152 incidents under the legislation.

“The result of the investigation is always shared with the patient and any actions that have been taken by the hospital as a result of the investigation,” UHN spokeswoman Gillian Howard told the Star.

“The panel’s recommendations have gone forward to the government and we anticipate that there will be amendments to the legislation. When those come, if we need to make changes to comply with amendments to the legislation, we will certainly do so,” she said.

St. Joseph’s Health Centre also conducts all of its patient care reviews under QCIPA. It has reviewed 18 incidents under the act since April 2014.

Of the 15 hospitals, five have not used the act at all since April 2014.

Rakesh Tiwari’s 20-year-old son hanged himself while under suicide watch in a Brampton hospital last year and, because of QCIPA, he says, he is still waiting for answers.

Basic information about Prashant Tiwari’s death was initially withheld from his family, such as the fact that he managed to hang himself with his hospital gown by standing on a chair and tying it to the ceiling vent in a washroom, his father said.

“They were only telling me what they wanted to tell me, and what they’re doing is hiding everything under the carpet. People are dying in different hospitals and no one knows what’s going on because the mistakes are not put out in the open,” Tiwari told the Star.

“But hospitals should understand that the government has realized this. They shouldn’t hide behind QCIPA anymore,” he said.

In February, Tiwari launched a $12.5-million lawsuit against the William Osler Health System, which runs Brampton Civic Hospital, alleging wrongful death.

How hospitals use QCIPA

The use of QCIPA still widely varies in hospitals in the GTA. The Star surveyed 15 hospitals on their use of the legislation since April 2014.

University Health Network: 152
St. Michael’s Hospital: 11
Centre for Addiction and Mental Health (CAMH): 3
Mount Sinai Hospital: 0
Humber River Hospital: 1
The Scarborough Hospital: 15
Toronto East General Hospital: 0
The Hospital for Sick Children (SickKids): 0
North York General Hospital: 2
St. Joseph’s Health Centre: 18
William Osler Health System: 2
Sunnybrook Health Sciences Centre: 2
Bridgepoint Health: 0
Baycrest Health Sciences: 0
Rouge Valley Health System: 3