Qualified privilege legislation to support clinician quality assurance: balancing professional and public interests

A review of the legislation may be warranted to assess the balance between professional and public interests

Patient health‐related datasets are protected by national and state‐based privacy laws which establish requirements for data security that safeguard identified patient information.1,2,3 Nevertheless, these data may potentially be accessed by third parties in accordance with the law — for example, in connection with freedom of information requests or legal proceedings — by statutory bodies such as the Australian Health Practitioner Regulatory Agency, or by jurisdictional health complaints commissions. Patient information from health service medical records is regularly used in medico‐legal proceedings, a recent significant example of which was the Bawa‐Garba case in the United Kingdom,4 discussed below.

In 1992, qualified privilege legislation was introduced in Australia as an amendment to the Health Insurance Act 1973 (Cth) (Part VC).5 It was originally established to facilitate open and frank discussion by health professionals participating in the peer review of clinical cases by hospital and health service committees. As noted by the then Health Minister, the legislation aimed to “provide a very important protection or immunity to enable these activities to take place with a recognition of the importance of confidentiality”.6 Qualified privilege encourages health care professionals to participate in quality assurance or quality improvement activities by providing:

• confidentiality of identified patient and clinician information arising from the declared activity; and
• protection from civil proceedings for members of committees when they assess or evaluate the quality of health services provided by others.

Qualified privilege may be granted to national quality assurance and quality improvement activities declared under the Commonwealth Qualified Privilege Scheme,7 and local health service‐specific activities may be declared under complementary state and jurisdiction‐based schemes. This declaration is effective for a 5‐year period, after which it may be renewed.

Activities that have been declared as having qualified privilege under the Commonwealth Act are recorded on the Federal Register of Legislation. As of March 2019, the Register lists 30 currently declared activities (Box 1), from 2014 to 2018. Over 70% of these registered activities are auspiced by a medical specialty college or society (or group of societies), with the remainder sponsored by research institutes or private quality assurance bodies. Similar legislation for qualifying quality assurance programs exists in the United States and New Zealand, but not in the UK.8,9

Contemporary medical practice requires clinicians and their trainees to participate in a broad range of quality improvement and assurance activities, driven by organisational governance expectations (from health services and accrediting bodies) and regulatory and professional development expectations (from the Medical Board of Australia and specialty colleges and societies). Participation in these activities is increasingly accessible to clinicians via electronic data capture and management of patient information from hospital systems, specialised clinic software, and externally managed datasets including national audit and clinical registry systems.

The value of qualified privilege has been debated recently in the setting of the Bawa‐Garba case in the UK. While Bawa‐Garba's personal reflection regarding the death of a 6‐year‐old boy from septic shock, documented as part of her training requirement by the Royal College of Physicians, was not made available in court, it has raised the issue of statutory protection of such documentation, particularly as the UK has no similar legislation enacting qualified privilege.4 Since this case, new guidance for doctors and medical students in the UK recommends that doctor reflections should not record identified patient information and should focus on lessons learned rather than specific incidents.10 In Australia, the Royal Australasian College of Physicians Professional Qualities Reflection (https://www.racp.edu.au/trainees/assessments/work-based-assessments/professional-qualities-reflection) is currently covered by qualified privilege and offers reassurance that Australian physician trainees’ personal reflections that may contain identified patient information are not accessible for disclosure to third parties. Nevertheless, case law in Australia and the UK still allows confidentiality (as a matter of common law), alongside privacy (the overarching Privacy Act 1988 (Cth)1 and state, territory or other information privacy statutes) to be overridden in the public interest. Australian courts can and will use their discretion to weaken the protection afforded to parties in a confidential relationship and may well do so where qualified privilege is invoked, indicating that qualified privilege should be seen as a defence rather than immunity under Part VC of the Health Insurance Act.

As suggested by the large number of national quality assurance and improvement activities declared as privileged, medical practitioners in Australia are committed to continued learning and feedback, but seek to do so without the potential of disclosure to third parties of confidential information. This is not dissimilar to concerns raised regarding the mandatory reporting of medical practitioners with impairment under the Health Practitioner Regulation National Law Act 2009 (the National Law),11 where it is argued that mandatory reporting may dissuade medical practitioners from seeking medical treatment, although the threshold for mandatory reporting is high and initial evaluation data do not necessarily support this assumption.12 In February 2019, via the Council of Australian Governments, each state and territory (except Western Australia) agreed to adopt amendments to the National Law that were passed in the Queensland Parliament.13 The amendments set out revised mandatory reporting requirements for treating practitioners, which include a higher threshold for reporting. This was considered by Health Ministers to provide an appropriate balance between encouraging health practitioners to seek treatment for impairment while ensuring public safety and community trust in the National Law.

The use of qualified privilege to protect data from disclosure and thereby encourage clinician participation supports a clinical culture of feedback and review. For many clinicians, being provided with regular individual feedback from quality assurance activities regarding their clinical outcomes (protected by qualified privilege) is an important benefit that offsets the time and resources spent in collecting and recording patient data. The corollary of this is that for quality assurance and improvement activities that are not granted qualified privilege, their governing bodies may choose not to collect or analyse clinician level or benchmarked outcomes in order to minimise the risks associated with disclosure, thus potentially limiting clinician engagement with the activity, and overall activity impact.

Yet, while qualified privilege provides some protection from disclosure of identified data, compliance with the qualified privilege legislation imposes confidentiality and procedural obligations that may not ultimately be in the interest of the quality assurance activity involved or of the public. About 6% of medical practitioners are considered to be performing poorly14 and may not come to the attention of the relevant authorities, particularly if they practise in relative isolation or across multiple settings. Benchmarked state‐wide and national quality improvement activities such as surgical audits or clinical quality registry activities may be able to identify such individuals as persistent statistical and significant clinical outliers.

It is acknowledged that the determination of clinical outliers is not currently based on agreed standards. This type of statistical analysis requires high quality (and usually high volume) complete data; agreed, evidence‐based risk‐adjustment factors; and peer review to determine whether a true statistical outlier is of clinical significance. Variation in statistical methods and their application can lead to differing determination of outliers.15,16 Nevertheless, the qualified privilege legislation in its current form does not allow for the potentially appropriate reporting or disclosure by the declared activity of a significant clinician outlier beyond the participating activity (section 124Y of the Health Insurance Act).

Governments and the public are increasingly seeking transparency of performance data. Funding contracts and agreements with clinical registries by state and federal governments often require that registries employ an outlier management process. In this setting, a question may be raised as to whether the balance between protection of clinician privacy and public interest is served with the current legislation, and warrants consideration of the views of either side of this debate. In light of these developments and expectations by government and society more broadly, qualified privilege as a framework may warrant review. Key benefits and risks associated with the current qualified privilege legislation are summarised in Box 2 and highlighted in Box 3.

In the early 2000s, the former Australian Council for Safety and Quality in Health Care published two papers in relation to national qualified privilege;9,17 these reviewed a number of activities granted qualified privilege and recommended continued support for the qualified privilege legislation. However, despite large scale clinical audit, registry and other quality improvement and assurance activity increasing significantly since this time, there has not been a further national review.

Conclusion

The role of qualified privilege at all levels warrants review, particularly for national quality assurance and improvement activities. In particular, there should be an opportunity to consider whether the bodies that auspice large quality improvement activities should have the ability to report or disclose information relating to clinician performance of substantial concern. Some existing quality assurance activities auspiced by specialty societies may include clinician remediation and support mechanisms, but not all societies have the resources or remit to undertake such processes. Such an option would support a policy focus on public safety rather than exposing or escalating a minor or temporary individual deviation from clinical practice, and could still potentially coexist within an overall privilege framework.

The roles of various bodies in such a reporting process need to be determined. As well as the reporting of clinical outliers to medical college and specialty association peer review and remediation programs where they exist, models that allow clinician managers to advise health service clinical leadership of persistent substantial poor performance of their staff identified through outlying data should be considered, so that appropriate local safety measures can be put in place. Mechanisms of disclosure that could mitigate the possibility of weakening qualified privilege protection will inherently strengthen the qualified privilege process. Ensuring an appropriate balance between these potentially competing professional and public interests through the further development and consideration of such models is critical and in the best interests of the medical profession and the broader community.