Louise Bélanger-Hardy & Caroline Quesnel
Abstract
Patient safety incidents (PSIs), also called adverse events, are an ongoing challenge for Canadian health institutions such as hospitals. Sharing information and gathering data about these incidents is an important element in a strategy to reduce their occurrence. In order to encourage the sharing of information and open discussions within health institutions, Canadian provinces and territories have developed a statutory evidentiary framework protecting quality of care information from use in legal proceedings. These qualified privilege laws operate in a context in which underlying policies reveal a tension between, on the one hand, the benefit of full disclosure to patients and, on the other, the need to encourage health care providers and institutions to discuss PSIs fully and to make positive systemic changes to improve patient safety. This article reviews Canadian qualified privilege laws pertaining to quality of care information and the judicial treatment they have been given in order to assess whether the legislation and its judicial interpretation favour one policy objective over the other, or whether a more nuanced approach has been adopted. The article argues that the “balancing of interests” approach adopted by legislators and courts is appropriate and should be encouraged, as it is the best way, at least at this time, to support efforts to improve patient safety while recognizing patients’ informational needs following a patient safety incident.
McGill Journal of Law and Health 