(As written for the Ontario Bar Association’s Health Law Newsletter, June 2008.) 

On March 18th, the Canadian Patient Safety Institute (CPSI) released “The Canadian Disclosure Guidelines”, a 36-page document to assist health care providers understand the process of disclosing adverse events to patients and their families.

CPSI developed the Guidelines over two years using a collaborative process involving a broad range of health care organizations and experts. The goal of the Guidelines is to support the development and implementation of disclosure policies, practices, and training methods.

Disclosure of an adverse event is an essential part of patient safety. Although disclosure of adverse events may seem straightforward and simple, it is actually a profoundly difficult duty for health care providers to carry out. The Guidelines assist by laying out the disclosure process from start to finish and by providing insights to help with the disclosure conversations. Flowcharts, checklists, and practical points are supported by a framework of the theory of disclosure in concise form. A useful list of references is included in the Appendix.

Although most health care institutions already have disclosure policies in place, the Guidelines will be useful both in providing a nation-wide consistency to the process and in providing a succinct and user-friendly publication. Using the Guidelines to refine existing disclosure policies is timely for institutions in Ontario governed under the Public Hospitals Act, as new regulations effective July 1, 2008 mandate disclosure of such events.

The CPSI was established in 2003 as an independent not-for-profit corporation, operating collaboratively with health professionals and organizations, regulatory bodies and governments to build and advance a safer health care system for Canadians.

The Canadian Disclosure Guidelines are available from the CPSI website at www.patientsafetyinstitute.ca.

Contact Cameron Health Law Consulting for more information about the disclosure of adverse events, the new disclosure requirements for Ontario hospitals, or with any other questions or comments.

Filed under : Heath Law (General)

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Are your business continuity plans effectively integrated with the current government framework for disaster management?  Most aren’t. 

In the wake of Katrina, SARS, 9-11, the Quebec ice storm and the blackout of 2004, it’s hard to imagine that any business got by without some effect on their operations, their personnel, their suppliers or their customers.  Reports of the system failures that occurred in the response to these events were plentiful. 

 Critical analysis flowed from each of these disasters.  Government frameworks for control, authority, and planning were exposed as being unprepared and ineffective.  Businesses were caught off-guard, and those who suffered losses were left wondering why they hadn’t been better prepared.  

Governments and business took remedial action. The government responded by developing new agencies and new legislation to facilitate better crisis management.  In the business community, risk management and human resource consultants sold the idea of developing a solid business continuity plan (BCP) and related policies. The problem is, the government’s new framework for disaster management, and business’s BCPs aren’t effectively integrated – and at times are frankly contradictory. 

This distinction between government and private disaster planning is dangerous.  Not only is a large proportion of society’s infrastructure managed by the private sphere, but the government-private dichotomy erodes rapidly as circumstances become serious.

 Government and business emergency responses must be integrated, and now is the perfect time - businesses have had a chance to analyze and understand business continuity practices, and new government agencies are gearing up.   

The effect of working together will be synergistic and significantly mitigate the damage to both business and society that a natural or man-made disaster will bring.  This integration requires a thorough appreciation of both the laws that govern disaster management as well as an understanding of how disaster management plays out in real life. 

Businesses should know what powers the government has to procure its goods, equipment, fuel, supplies, personnel, services, and premises.  They should also know about what governmental authority is required to exercise these powers and what recourse the business has should it believe that the procurement of its resources is unwarranted or unfair. 

 Businesses must also understand the risks to which they may be exposed if they do not manage an emergency situation well.  For example, hospitals are currently in litigation with patients and employees who suffered injury in the SARS outbreak.  The plaintiffs claim, essentially, that there was a system failure due to lack of preparedness on the part of the hospitals.  The SARS Commission report by the late Justice Archie Campbell highlights the inadequacy of the system that was in place at the time and the need for better occupational safety practices in the future.  Justice Campbell’s comments should not be heeded only by hospitals – as infection can take place on any business’s premises among employees, customers, or clients.  As scientific studies predict that a major pandemic in the next five to ten years is almost inevitable, lack of measures to protect employees and customers could amount to negligence.  

Further, businesses as a matter of governance may be liable to shareholders for failing to plan for such eventualities.  Both the Sarbanes Oxley Act in the U.S. and National Policy 58-201 in Canada make it a requirement of proper governance to identify risks and ensure management of appropriate systems to manage these risks.  BCP must identify the vulnerability of its operations to failure of its suppliers, distributors, and contractors, and it must identify industry-specific changes that will occur in the business as the result of various disasters.  

From a criminal perspective, bill C-45 amended the Criminal Code of Canada to introduce a new duty that would apply to senior managers who direct work (no longer just the “directing mind” of the corporation) to take steps to prevent bodily harm of a worker or others.  This bill was introduced in response to the 1992 Westray mine explosion which killed 26 people. 

Thus, an unprepared business could be liable in the areas of employment law, negligence, governance, and even criminal law in the event of a natural or man-made disaster.  A proper business continuity plan that is integrated with new government initiatives will protect against these liabilities. 

Filed under : Pandemic Planning and Emergency Preparedness

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