Is Section 51 a Black Hole for Patient Safety Learning?

I am writing this blog post at a time when COVID-19 has taken over our lives, in virtually every domain. I was planning on raising questions about several consequences of Section 51 of the Evidence Act in British Columbia that are clearly not helpful for patient safety – for instance no mention of how patients and families can heal as they deal with the consequences of unintended harm; or the basic inequity of providing information to some [lawyers representing hospitals and other facilities] and not to others [patients, whether represented by lawyers or not]; or the severe limits to sharing any learning that arise from investigations of patient safety incidents, to name just a few.

But maybe I am on the wrong track – should the Evidence Act be concerned about healing, or address the equitable sharing of information gathered by quality and safety committees, or even care about the whole question of learning after adverse events? Isn’t that the job of some other government department or agency?

The aftermath of unintended harm following a patient safety incident is devastating for many, starting with the patient, their family and all the involved healthcare providers. Addressing the immediate effects of the injury or death is only the first step and the long-term healing is a much more challenging task. Perhaps I am being naïve to think that legislation which provides legal protections for committees looking at serious adverse events would address matters such as healing or restoring trust.

So, what does Section 51 actually say? The answer is not very much. Maybe there are answers in the Toolkit for Health Care Agencies (2013) a detailed 52-page document prepared by the HCPP (Health Care Protection Program), the organization that protects the legal interests of hospitals and other facilities in B.C.

At first glance, it doesn’t look very encouraging. It is possible, under Section 51 to tell the patient or family that an investigation occurred “without disclosing details of that review” and without talking about the “recommendations and conclusions” of the committee. It is possible to talk about any recommendations that have been implemented but only “without indicating the review was the reason for the steps”.

Hope springs eternal! On page 26 we find an entire section about Permitted Release of Section 51 Information. Maybe now we can learn what actually happened to Uncle George who woke up in the hospital to find that he was missing one of his previously perfectly functioning legs! No such luck. The review committee or Board of Management of the hospital can make a “disclosure or publication” for the “purpose of advancing medical research or medical education” as long as this release is done in a way that does not allow the identification of the persons involved – patient, staff, administrators – as well as the location of the care. That doesn’t seem to create a space where patients and families can learn about Uncle George.

And while the Toolkit suggests that the heavily proscribed information mentioned above “likely can be released” it provides stern cautions that such release is always discretionary AND the decision to release information should be made by Risk Management of a given facility. Which reminds me of the never answered question “whose risks are being managed by hospital risk managers?”. All of this meandering brings me back to COVID-19 – it appears that Section 51 of the Evidence Act in B.C. was far ahead of its time by proposing more than a decade ago the most effective stringent form of “social distancing” when it comes to patients, families, caregivers and providers, and the system. Apparently learning can be very scary.

A good friend, colleague and patient safety champion came up with an excellent idea that we might borrow from the aviation industry, while we work together on changing the present restrictive nature of Section 51 – we need to create “patient safety black box”. Absolutely brilliant aside from being a bit short on the details of how to accomplish this! Can you help?

I think that the only solution to the present “blockade” against healing and learning, that is imposed by Section 51 of the Evidence Act in British Columbia is for patients, families and concerned healthcare providers to band together to persuade the government that the present state of affairs is simply unacceptable.