Part 7 of the South Australian Health Care Act (Act) is entitled “Quality Improvement and Research”. Under section 64 of the Act (which falls within Part 7) the Health Minister has historically been able to declare certain activities as either an authorised quality improvement activity or an authorised research activity. The Minister has also been able to declare a person or group of persons as an authorised entity for the purposes of carrying out a quality improvement activity or an authorised research activity. The effect of a declaration under section 64 is that information obtained and records of that information were exempted from production and/or disclosure including to a court, agency or other body. This was a blanket protection.
From time to time certain authorised activities have come under scrutiny, particularly in the Coroner’s Court and/or in the media. The most recent example has been in relation to what has been colloquially referred to as the “chemo bungle”. In August 2016 the Australian Commission on Safety and Quality in Healthcare published a report following a review of the incident notification management and analysis surrounding the incorrect dosing of leukaemia patients. This report contained six principal recommendations. Recommendation 6 dealt with, in effect, Part 7 of the Act and its application. The recommendation in part reads:
“The legislative provisions which operate to protect certain information from disclosure as currently applied to reports of the investigation, analysis and recommendation of the incidents reported to the Safety Learning System are applied too broadly.”
The reference to the Safety Learning System is to SA Health’s information database, which is designed to record, manage, investigate and analyse patient and worker incidents, as well as consumer feedback.
As part of its implementation of the recommendations of the review, the Minister on 15 September 2016 removed the protection afforded to the SA Health Safety Learning System (SLS) patient incident management module that had previously been afforded to it under Part 7 of the Act.
The effect of this is that information that is recorded via the SLS can now be disclosed if appropriately requested.
The SLS is peculiar to SA Health and the Minister’s decision will not directly impact on the private health sector. Having said that, clinicians who work in both the public and private health sectors need to be aware of this change. Information that they now record on SLS can be made available to the public (if appropriately requested).
In order to educate clinicians in relation to the effect of these changes, SA Health has published an information sheet1 which sets out the background to the Minister’s recent decision and how SA Health sees this decision impacting on the gathering and distribution of information that will be recorded from now on via SLS. Changes have been made to the SLS Event Notification Form to provide clinicians with some guidance as to the nature of information that should now be included. The decision is not retrospective and applies only to information recorded after 15 September 2016.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.