Request for information about serious and sentinel event reports
Request to District Health Board for information relating to ‘serious and sentinel events’—22 SSE reports withheld in full—s 9(2)(a) applies to information identifying patients’ families and medical staff—s 9(2)(ba)(i) applies to information identifying medical staff as release would impact negatively on willingness of staff to report incidents and to cooperate with subsequent investigations—s 9(1) public interest in release to promote the accountability of the DHB for management of individual cases and to assure the public that any identified deficiencies are being remedied—reports released with deletions—two ‘protected quality assurance activity’ reports withheld—s 59 of Health Practitioners Competence Assurance Act prohibits disclosure of information gained in course of a protected quality assurance activity but s 60 allows release of information that does not identify a particular individual—reports released with deletions
A journalist asked Capital and Coast District Health Board (CCDHB) for information relating to ‘serious and sentinel events’.
According to CCDHB policy, a serious event is one which ‘had the potential to result in death or major permanent loss of function’ and a sentinel event represents ‘unanticipated death and / or signals a major problem or failure’. When a serious or sentinel event (SSE) occurs, an investigation is undertaken and a SSE report is produced.
CCDHB interpreted the journalist’s request as being for the SSE reports for 2003/04 and 2004/05. CCDHB withheld:
22 reports, in full, under sections 9(2)(a) and 9(2)(ba)(i) of the OIA; and
2 reports, that were ‘Protected Quality Assurance Activity’ reports (PQAA reports), under section 18(c)(i) of the OIA because disclosure would be contrary to section 59 of the Health Practitioners Competence Assurance Act 2003.
CCDHB acknowledged that there was a valid public interest in:
acknowledging that ‘hospital care throughout the world is a potentially hazardous activity’;
identifying the types of errors that may occur; and
assessing CCDHB’s performance against benchmarks for SSEs.
Accordingly, CCDHB provided the requester with an SSE study compiled specifically in order to respond to the request. The study represented an investigation of SSE records to determine CCDHB’s rates of SSEs against overseas studies.
The journalist was not satisfied with the study and asked the Ombudsman to investigate CCDHB’s decision to withhold the SSE reports themselves.
The SSE reports
The Ombudsman considered whether it was necessary to withhold the reports in full under sections 9(2)(a) and 9(2)(ba)(i) of the OIA, and if so, whether the need to withhold was outweighed by the public interest in release.
Sixteen of the SSE reports named the patient involved. Six of the reports did not name the patient involved but did contain personal details (such as age, gender, ethnicity, specifics of illness and treatment) which could potentially enable the patients to be identified by relatives and acquaintances. The reports clearly constituted health information about identifiable individuals.
The Ombudsman sought the Privacy Commissioner’s views on the privacy interests involved, as required by section 29B of the OIA. She stated:
Patients and their families have a strong privacy interest in the information. To a lesser extent, the medical staff identified in the reports also have a privacy interest that requires protection.
The deletion of information from the reports which would identify the patients, their families or the medical staff involved would be an adequate protection of the privacy interest.
After considering the Privacy Commissioner’s views, the Ombudsman formed the provisional view that it was not necessary to withhold all of the information contained in the SSE reports. She agreed with the Privacy Commissioner that:
it was necessary to withhold any information that would identify the patients, their families and medical staff in order to protect their privacy; and
there were no countervailing public interest considerations favouring disclosure of that information that would outweigh the interests in favour of withholding the information.
However, the Ombudsman also agreed with the Privacy Commissioner that it was not ‘necessary’ to withhold the reports in full in order to protect those interests. The Ombudsman was satisfied that the deletion of any information that would identify the individuals concerned would provide adequate protection of their privacy interests.
The Ombudsman then considered whether the information was subject to an obligation of confidence. She noted that there were explicit references to the confidential nature of the SSE review process in CCDHB’s guidelines. She also observed that the background to, and rationale behind, the SSE reporting system seemed to support an implied obligation of confidence:
… the [SSE] reporting process had its origins in a worldwide movement to encourage voluntary reporting of health incidents. In New Zealand, the background lies in the 2001 report of the Sentinel Events Project Working Party, Toward Clinical Excellence: Learning from Experience. That report, and the Ministry of Health Reportable Events Guidelines emphasise the need for a ‘no-blame’ system, where reporting of mistakes is rewarded not punished. The Sentinel Events Project Working Party regarded confidentiality as a necessary part of this.
The Ombudsman was satisfied that continued provision of information enabling the SSE review process to function in the most effective way is in the public interest and, more to the point, it was a matter of public safety.
She considered that disclosure of the reports, in full, would impact negatively on the willingness of medical staff to report incidents in the first place as well as their willingness to cooperate with subsequent investigations in an open, free and frank manner. However, she was not persuaded that partial disclosure of the reports ‘would be likely’ to prejudice the continued provision of information.
She noted that, although the relevant guidelines contained statements about the confidentiality of the SSE process, some degree of disclosure of information about SSEs also appeared to be contemplated. For example, the guidelines referred to the OIA and explained that the release of some information from the reports, such as recommendations, could be possible.
The Ombudsman also observed that CCDHB had previously partially disclosed six SSE reports. She commented that this seemed to illustrate that the reporting system could admit some degree of disclosure without failing.
The Ombudsman questioned why CCDHB had disclosed some reports in the past but refused to disclose the remaining reports. She acknowledged that the partial disclosure of the six reports had followed considerable media interest in the events in question. However, she said that she:
… would be concerned if this were the only basis for the distinction in approach; that is, just because an event has not come to the attention of the media does not make the safety / accountability issues any less significant or in need of public oversight.
Countervailing public interest considerations favouring disclosure
Sections 9(2)(a) and 9(2)(ba)(i) are subject to section 9(1) of the OIA. This section requires that a decision maker, and an Ombudsman on review, consider whether the interests in favour of withholding the information are outweighed by other considerations which render it desirable, in the public interest, to make the information available.
The Ombudsman explained that there was a strong public interest in maintaining patient privacy and a degree of confidentiality that permits the SSE review process to continue working effectively. In her view, it was necessary to withhold any information that would identify patients, their families and medical staff in order to protect those interests.
However, there were also compelling public interest considerations favouring disclosure of some of the information in the reports.
For example, there was a public interest in promoting accountability for CCDHB’s management of individual cases. Promoting accountability is one of the fundamental purposes of the OIA. The Ombudsman commented:
… we are talking about a class of incidents in the public health system where something has gone seriously wrong. It seems to me that when one of these incidents happens, there is a public interest in knowing, in general terms at least, what went wrong, and what measures will be taken to prevent it happening again….
There is also a public interest in promoting public confidence that deficiencies, where identified, are remedied, and a related public interest in there being a degree of oversight external to the organisation itself and the wider health system.
The Ombudsman was not satisfied that the SSE study that CCDHB had released to the requester, which was based on total numbers and aggregate figures, adequately addressed these public interest considerations. Nor could she identify any alternative information sources (such as a system of national data collection or analysis) to address the public interest considerations identified above.
In the absence of alternative information sources to address the public interest, the Ombudsman considered that additional information from CCDHB’s SSE reports ought to be disclosed. In her provisional view, the public interest considerations favouring disclosure outweighed the need to withhold information that went towards establishing:
what happened; and
what corrective measures (if any) were identified and / or taken.
CCDHB accepted the Ombudsman’s provisional view regarding the SSE reports and provided the requester with copies of the SSE reports subject to deletions.
The requester subsequently queried whether the deletions made to some of the reports were all necessary. The Ombudsman reviewed the reports identified by the requester and was satisfied that the deletions made to most of the reports were consistent with her provisional view. In one case, she asked CCDHB to prepare a summary of a report because the deletions which had been made rendered it unintelligible.
The investigation was closed on this basis.
Sections 52-63 of the Health Practitioners Competence Assurance Act 2003 (HPCAA) address ‘Quality Assurance Activities’ in the health sector. The purpose of these sections is to ‘encourage effective quality assurance activities in relation to health services performed by health practitioners by … protecting the confidentiality of … information that becomes known solely as a result of such activities; and documents brought into existence solely for the purposes of such activities…’ (section 52 HPCAA refers).
Under section 54 of the HPCAA, the Minister of Health may, by written notice, declare a quality assurance activity to be protected. The Ministerial notice in respect of CCDHB is the Health Practitioners (Quality Assurance Activity: Capital and Coast District Health Board) Notice 2005.
Section 59 of the HPCAA places certain prohibitions on the disclosure of any information gained in the course of a declared quality assurance activity. However, section 59 is subject to section 60 of the HPCAA which permits the disclosure of any information or document that does not identify, either expressly or by implication, a particular individual.
The Ombudsman therefore advised CCDHB that it was her provisional view that, to the extent that the two PQAA reports could be anonymised:
disclosure would not be contrary to section 59 of the HPCAA; and
section 18(c)(i) of the OIA would not provide a basis for refusing the request in full.
CCDHB agreed to release anonymised versions of the PQAA reports to the requester and the investigation was closed on this basis.
On 23 June 2008, the National Incident Management System was launched. This was a joint initiative across the health sector (including DHBs, the Ministry of Health, ACC, the office of the Health and Disability Commissioner and the private sector) with the aim of providing a systematic approach to the classification, prioritisation, analysis and management of healthcare incidents. As part of the system, a report of serious and sentinel events from all DHBs is released annually.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.