Osler BPSAA Advice Receives Critique

An information bulletin by Michael Watts, Roger Gillott and Sarah Harrison of Osler, Hoskin & Harcourt LLP from October 22, 2010, Proposed legislation aims to create greater public accountability, has garnished quite a bit of controversy this week.

The article discusses the Broader Public Sector Accountability Act, 2010 (BPSAA), which received Royal Assent on December 8, 2010. The Act creates new rules for transparency and accountability for publicly funded broader public sector organizations, including hospitals and LHINs.

The new rules come into force on January 1, 2012, and amend the Freedom of Information and Protection of Privacy Act (FIPPA) to allow much broader access to hospital records from January 1, 2007.

Critics have taken particular objection to the wording in the article, which seems to suggest that hospitals should destroy records that could lead to a scandal:

Hospitals Face Reputational Risks Under FIPPA

In recent years controversies involving public sector organizations have demonstrated the significant reputational risks they face when information about their business conduct is made public. 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 FIPPA request.

Accordingly, hospitals will want to adopt best practices in not only responding to FIPPA requests but, equally importantly, in (a) cleansing existing files on or before December 31, 2011, subject to legislative record-keeping requirements; and (b) educating all staff including the Board of Directors, as to how they should conduct business under the FIPPA regime, particularly with respect to expenses, procurement and decision-making relating to hospital services, in order to avoid any reputational risks. For example, the appropriate level of care must be paid to all correspondence dealing with hospital business, especially email, as it considered to be a “record” under FIPPA and subject to the public right of access.

Ann Cavoukian, Ontario’s Privacy Commissioner, stated,

I was astounded at the language. Just using the word ‘cleansing’ is highly inappropriate. It suggests shredding, eliminating, hiding — getting rid of material before the end of the year…

“(Cleansing is) an offensive term and it’s right after they refer to eHealth. It suggests if you want to avoid that, go in there and clean up your files.

Ontario Premier McGuinty also added a comment later yesterday,

It’s wrong… you shouldn’t be doing that. There’s the letter of the law, and there’s the spirit. I would ask that people who work in our hospitals respect both. There’s a legitimate expectation on the part of Ontarians that we get a better understanding of what is happening inside our hospitals. That does not justify, it does not authorize, it does not give licence to people working in our hospitals to start destroying documents.

New media picked up on the article after it was posted on the Facebook page of Every Patient Matters, a patient rights organization.

Osler appears to have removed the most controversial language from the current copy of the article online, time-stamped for yesterday. However, the original version is still available via Google cache.

It’s questionable whether an article by a major law firm, republished in e-newsletters, should be rewritten in this way just because of some critique. A new footnote now indicates the article has been updated to reflect clarifications. But if they are going that route they should probably also consider a Google removal request for the cache.

Update

In a note on their Facebook page, Every Patient Matters provides a response to Osler’s reaction:

One could look at this Osler example as a bad sign, of “cleansing” a record about “cleansing” a record.

Or one could have a more optimistic outlook: Transparency makes people change!

If leaking the original advice to the press could get Osler to change their behaviour in one day, how fast could we get the hospitals to clean up their act, if we could look at their files?

Negative or positive spin, one thing is certain: Hospital secrecy is a bad idea. It’s time to let the public in. Quality of care in hospitals is by its nature a matter of public interest.