SEPTEMBER 2008

IN THIS ISSUE

Please Select an Article to Read

• Australian Law Reform Commission’s Privacy Report – Health Update
• Special Commission of Inquiry into NSW Public Hospitals releases its First Report
• Pharmacists and Franchising
• Accessing funds in the current market environment
• Aged Care Update
• Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice
• Case note: Peer evidence as to competent medical practice
• Proposed changes to general requirements for labelling of medicines
• Windfall for Medical Insurers in Medical Malpractice Cases
• Protecting Root Cause Analysis in NSW private health facilities
• Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
• New procedures for Medical Negligence Claims in the NSW Supreme Court
• IVF Donors to lose anonymity under new legislation in New South Wales

 

Protecting Root Cause Analysis in NSW private health facilities

How do we learn from, and prevent further, adverse outcomes in health care?  A helpful and much used tool has been a root cause analysis (RCA).  Most Australian States have in place legislation to facilitate an RCA although some apply only to public hospitals. 

At present, RCAs conducted at NSW private health facilities are not afforded privilege or protection from disclosure, for example, under subpoena by a patient making a claim.  This absence of adequate protection for the participants has hindered transparency and arguably weakened the process and quality of the RCA report. 

When it comes into force, the NSW Private Health Facilities Act 2007 (the Act) will mirror, in private facilities, the root cause analysis process and protections that currently exist in public hospitals.  Those who have been involved in the public hospital RCA will appreciate the benefits afforded by this protection.  Moreover the formalisation of the process enables participants to understand their role better, as well as the outcomes and consequences of the investigation.

The new Act requires private facilities to create RCA teams if a “reportable incident” occurs.   Although this is not yet defined under the Act, it is likely to adopt the definition in the NSW Health policy directive:  “Reportable Incident Definition under section 20L of the Health Administration Act.” http://www.health.nsw.gov.au/policies/pd/2005/pdf/PD2005_634.pdf.  Under this directive, a reportable incident is one with serious or major clinical consequences (as defined) which has a frequent or likely chance of recurrence. 

Under the new legislation, an RCA team in a private health facility must focus on systemic change and is not permitted to investigate the competence of an individual.  However, this does not prevent the team identifying incidents which involve concerns about individual conduct.  If the team considers the incident might involve professional misconduct or unsatisfactory professional conduct, or indicate that a person suffers from an impairment, they must notify the licensee of the facility and the chair of the Medical Advisory Board.  If the incident involves unsatisfactory professional performance that does not reach the level of possible professional misconduct or unsatisfactory professional conduct, the team has a discretion to make a notification.

When conducting the investigation, the team must abide by the rules of natural justice.  In general, the rules of natural justice include informing affected persons about the investigation and giving them a reasonable opportunity to respond to any adverse comment, and considering the response; making reasonable enquires and ensuring any findings are based on sound reasoning and relevant evidence; acting fairly and without bias; and investigating without undue delay.

At the end of the process, the team must provide a written report describing the incident, the reasons they think it occurred and any recommendations for changes to practice or procedure.  The Director-General of NSW Health receives the report.  In the absence of consent, the report must not name an individual who provided or received health services, and, so far as is practicable, should not contain information that would permit an individual to be identified.  The report cannot be used as evidence in any proceedings to show that a practice or procedure was careless or inadequate. 

Members of the RCA team must not disclose any information they obtain as part of the investigation, except to exercise their functions and provide a report.  A member cannot be compelled, in any forum, to disclose information or produce documents which they hold solely because of their role in the RCA team.  Team members also have protection from defamation for statements made in writing or orally as part of the RCA process. 

The new NSW Act encourages full and frank participation by creating a confidential RCA investigation process.  While the focus is on systemic change, the team can notify concerns about individual health professionals to be investigated elsewhere, if necessary.  Some facilities may choose to disclose the final RCA report as part of an open disclosure policy and we note that NSW public hospitals have adopted this practice. 

The Act is likely to come into force later this year.

Written by Meghan Magnusson, Senior Associate