QUALIFIED privilege legislation enables “open and frank” case review to improve clinician and health service performance, but experts are concerned that the protections may also be shielding a small proportion of clinicians with persistent poor performance.
Writing in the MJA this week, Associate Professor Susannah Ahern, medical administrator and academic at Monash University’s School of Public Health, and co-authors have called for a review of Australia’s qualified privilege legislation to ensure that it is striking the right balance between professional and public interests.
The importance of qualified privilege protection was highlighted in the UK Bawa-Garba case, the MJA authors noted. While Dr Bawa-Garba’s personal reflection regarding the death of a young boy from septic shock was not made available in court, there was concern that there was no statutory protection of such documentation in the United Kingdom.
“The case highlighted to doctors that, for various quality improvement purposes, they are asked to do this reflective and critical analysis of their own performance, but in some ways that makes them vulnerable if they are not protected,” Associate Professor Ahern told InSight+. “We do have protection for those activities here in Australia.”
“Qualified privilege legislation is being used by [professional colleges and societies, and research institutions,] and has been a really effective framework in supporting peer review and audit,” Associate Professor Ahern said. “But I think community and government expectations around issues of public safety and transparency have changed in the [past] 20 years or so, and I don’t believe that the current legislation gets that balance quite right.”
Qualified privilege legislation was introduced in Australia in 1992 as an amendment to the Health Insurance Act 1973 (Cth) to enable “open and frank discussion by health professionals participating in the peer review of clinical cases by hospital and health service committees”.
Prior to this, health datasets were protected by privacy legislation. But data could potentially be accessed by third parties, such as the Australian Health Practitioner Regulation Agency (AHPRA) or health care complaint agencies, through freedom of information requests or in connection with legal proceedings.
The legislation encourages participation in review processes by ensuring confidentiality of patient information and protection from civil proceedings for committee members assessing the quality of health services provided by others, the authors said.
“But what this also means is that people who manage the data are not able to disclose anything either. So, if a registry or an audit identifies a persistently poor performing clinician, they would not be able to disclose that to [a college or a society so the clinician could be offered remediation or other support mechanisms],” she said, noting that this would be a rare occurrence.
“The Medical Board estimates that about 6% of clinicians are performing poorly, so the majority of clinicians are doing an absolutely fine job.”
She added that the MJA article suggested that disclosure be permitted only to relevant colleges and societies, or to the participating health services, and not to AHPRA or jurisdictional health complaints agencies.
Associate Professor Ahern said the qualified privilege legislation was last formally reviewed in the early 2000s by the former Australian Council for Safety and Quality in Health Care.
At present, 30 activities are afforded protection by the legislation, with most being activities overseen by medical specialty colleges or societies. Some clinical registry data are also afforded qualified privilege protection.
“Qualified privilege is still being actively used and there are new applications every year,” said Associate Professor Ahern, who manages six clinical registries at Monash University. “In 2018, there were another five activities approved and a similar number for each of the previous years.”
Asked if changes to qualified privilege legislation may deter doctors from participating in clinical review activities, Associate Professor Ahern said it was important for medical colleges and societies to be part of the review process.
“Many quality assurance activities are driven by the clinicians in the first place and the majority of clinicians are interested in feedback about their own performance,” she said. “We have to be careful that we don’t do something that would throw the baby out with the bathwater. There is always this risk in any legislative change unless the clinical groups have buy-in to the changes. And this would affect such a small number of clinicians that I don’t think, in the balance, it would deter the majority from participating in activities that are very beneficial to them.”
Writing in the MJA this week, Associate Professor Susannah Ahern, medical administrator and academic at Monash University’s School of Public Health, and co-authors have called for a review of Australia’s qualified privilege legislation to ensure that it is striking the right balance between professional and public interests.
The importance of qualified privilege protection was highlighted in the UK Bawa-Garba case, the MJA authors noted. While Dr Bawa-Garba’s personal reflection regarding the death of a young boy from septic shock was not made available in court, there was concern that there was no statutory protection of such documentation in the United Kingdom.
“The case highlighted to doctors that, for various quality improvement purposes, they are asked to do this reflective and critical analysis of their own performance, but in some ways that makes them vulnerable if they are not protected,” Associate Professor Ahern told InSight+. “We do have protection for those activities here in Australia.”
“Qualified privilege legislation is being used by [professional colleges and societies, and research institutions,] and has been a really effective framework in supporting peer review and audit,” Associate Professor Ahern said. “But I think community and government expectations around issues of public safety and transparency have changed in the [past] 20 years or so, and I don’t believe that the current legislation gets that balance quite right.”
Qualified privilege legislation was introduced in Australia in 1992 as an amendment to the Health Insurance Act 1973 (Cth) to enable “open and frank discussion by health professionals participating in the peer review of clinical cases by hospital and health service committees”.
Prior to this, health datasets were protected by privacy legislation. But data could potentially be accessed by third parties, such as the Australian Health Practitioner Regulation Agency (AHPRA) or health care complaint agencies, through freedom of information requests or in connection with legal proceedings.
The legislation encourages participation in review processes by ensuring confidentiality of patient information and protection from civil proceedings for committee members assessing the quality of health services provided by others, the authors said.
“But what this also means is that people who manage the data are not able to disclose anything either. So, if a registry or an audit identifies a persistently poor performing clinician, they would not be able to disclose that to [a college or a society so the clinician could be offered remediation or other support mechanisms],” she said, noting that this would be a rare occurrence.
“The Medical Board estimates that about 6% of clinicians are performing poorly, so the majority of clinicians are doing an absolutely fine job.”
She added that the MJA article suggested that disclosure be permitted only to relevant colleges and societies, or to the participating health services, and not to AHPRA or jurisdictional health complaints agencies.
Associate Professor Ahern said the qualified privilege legislation was last formally reviewed in the early 2000s by the former Australian Council for Safety and Quality in Health Care.
At present, 30 activities are afforded protection by the legislation, with most being activities overseen by medical specialty colleges or societies. Some clinical registry data are also afforded qualified privilege protection.
“Qualified privilege is still being actively used and there are new applications every year,” said Associate Professor Ahern, who manages six clinical registries at Monash University. “In 2018, there were another five activities approved and a similar number for each of the previous years.”
Asked if changes to qualified privilege legislation may deter doctors from participating in clinical review activities, Associate Professor Ahern said it was important for medical colleges and societies to be part of the review process.
“Many quality assurance activities are driven by the clinicians in the first place and the majority of clinicians are interested in feedback about their own performance,” she said. “We have to be careful that we don’t do something that would throw the baby out with the bathwater. There is always this risk in any legislative change unless the clinical groups have buy-in to the changes. And this would affect such a small number of clinicians that I don’t think, in the balance, it would deter the majority from participating in activities that are very beneficial to them.”
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