Qualified privilege

What is qualified privilege?

The qualified privilege scheme is designed to encourage hospitals and health professionals to:

  • conduct quality improvement activities
  • investigate the causes and contributing factors of clinical incidents by protecting:
    • certain information from disclosure
    • clinicians involved in the activity from civil liability.

Why is qualified privilege necessary?

To improve the safety and quality of health care, it is important to review what went wrong, and to find ways to prevent the event from happening again.

Health care professionals are more likely to review the quality of health care if they know that the information they disclose cannot legally be disclosed. The participation of health care professionals in quality assurance activities supports the identification of environments conducive to errors, and this facilitates system redesign to create an environment in which future errors are less likely.

What information is protected from disclosure?

The information that is generated or obtained solely as a result of the quality improvement activities of a registered quality improvement committee is protected under qualified privilege.

This includes information such as the outcomes of reviews and the results of root cause investigations when conducted by members of an approved quality improvement committee.

Factual information that can be obtained from other places is not protected by the legislation, for example, the patient’s medical record is not protected.

What is a registered quality improvement committee?

A registered quality improvement committee has been:

  • formally established by the board of the hospital
  • approved as a registered quality improvement committee by the Minister for Health.

Read the Quality Improvement Committee annual reports.

Qualified privilege options

The qualified privilege legislation protects identifiable information generated purely for the purpose of an approved quality improvement process from disclosure or use in court or other proceedings.

Health professions have 2 qualified privilege options when conducting quality improvement activities:

  • no qualified privilege
  • qualified privilege provided by State QP Legislation (Health Services (Quality Improvement) Act 1994)

No qualified privilege

The Department of Health, Legal and Legislative Services branch should be consulted for guidance on undertaking an investigation without qualified privilege.

You can conduct quality improvement activities with no protection from qualified privilege if:

  • de-identified, aggregated data is to be discussed and shared
  • there is no fear of litigation
  • the committee or activity is functioning well without it.

There are advantages of conducting quality improvement activities with no protection from qualified privilege. These include:

  • Any aggregated, de-identified information generated by the activity or committee is not protected and may be shared widely, for example with:
    • health care professionals
    • institutions
    • the public.
  • Identified information generated by the activity or the committee may be shared with the patient and with their permission, their family or carer as per the Department of Health’s Open Disclosure Policy.

There are also disadvantages of conducting quality improvement activities with no protection from qualified privilege:

  • Not all documents generated via the quality improvement activity or committee may be protected and available to the public under the Freedom of Information Act 1992 (external site) or by discovery in legal proceedings.
  • Members of the quality improvement committee or participants of the quality improvement activity may not be protected from being compelled to appear before a civil proceeding to provide evidence regarding information acquired by the committee.

Qualified privilege provided by State QP Legislation

The Health Services (Quality Improvement) Act 1994 (external site) governs qualified privilege in Western Australia.

The purpose of the Act is to encourage health professionals to participate in quality improvement processes aimed at improving the quality of clinical care.

Qualified privilege prohibits the disclosure of information that identifies, either directly or by implication:

  • individual health care providers
  • patients.

Expired Commonwealth legislation on qualified privilege

The investigation and analysis of a clinical incident reported to AIMS (CIMS) was a registered quality assurance activity under Part VC of the Health Insurance Act 1973 (Cth) (external site)

The previous Commonwealth Declaration for protection expired at midnight on the 9th June 2011.

Commonwealth qualified privilege is no longer afforded to the AIMS process. 

For incidents investigated prior to the expiration of the Commonwealth Declaration, the Act provided statutory protection of identified information collected solely for the purposes of the AIMS (CIMS) process. This means that incidents reported and managed through the AIMS (CIMS) system are not protected. The risks of any legal proceedings are very small and can only be based on proof of harm.

Resources

Templates

Guides

More information

Quality Improvement and Change Management Unit
Address: 189 Royal Street, East Perth
Phone: 9222 4080
Email: qicm@health.wa.gov.au

Last reviewed: 14-09-2016
Last updated: 07-12-2016
Produced by

Quality Improvement and Change Management Unit