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Quality of Care Information Protection Act, 2004

S.O. 2004, CHAPTER 3
Schedule B

Consolidation Period: From January 1, 2012 to the e-Laws currency date.

Last amendment: 2010, c. 25, s. 28.

SKIP TABLE OF CONTENTS

CONTENTS

1.

Definitions

1.1

Application of Freedom of Information and Protection of Privacy Act

2.

Conflict

2.1

Quality of care information continued

3.

Disclosure to quality of care committee

4.

Quality of care information

5.

Non-disclosure in proceeding

6.

Non-retaliation

7.

Offence

8.

Immunity

9.

Regulations

10.

Public consultation before making regulations

Definitions

1.  In this Act,

“disclose” means, with respect to quality of care information, to provide or make the information available to a person who is not a member of the quality of care committee with which the information is associated, and “disclosure” has a corresponding meaning; (“divulguer”, “divulgation”)

“health care” means any observation, examination, assessment, care, service or procedure that is done for a health-related purpose and that,

(a) is carried out or provided to diagnose, treat or maintain an individual’s physical or mental condition,

(b) is carried out or provided to prevent disease or injury or to promote health, or

(c) is carried out or provided as part of palliative care,

and includes,

(d) the compounding, dispensing or selling of a drug, a device, equipment or any other item to an individual, or for the use of an individual, pursuant to a prescription, and

(e) a prescribed type of service; (“soins de santé”)

“health facility” means a hospital within the meaning of the Public Hospitals Act, a private hospital within the meaning of the Private Hospitals Act, a psychiatric facility within the meaning of the Mental Health Act or an independent health facility within the meaning of the Independent Health Facilities Act; (“établissement de santé”)

“information” includes personal health information as defined in the Personal Health Information Protection Act, 2004; (“renseignements”)

“Minister” means the Minister of Health and Long-Term Care; (“ministre”)

“proceeding” includes a proceeding that is within the jurisdiction of the Legislature and that is held in, before or under the rules of a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a College within the meaning of the Regulated Health Professions Act, 1991, a committee of the Board of Regents continued under the Drugless Practitioners Act, a committee of the Ontario College of Social Workers and Social Service Workers under the Social Work and Social Service Work Act, 1998, an arbitrator or a mediator, but does not include any activities carried on by a quality of care committee; (“instance”)

“quality of care committee” means a body of one or more individuals,

(a) that is established, appointed or approved,

(i) by a health facility,

(ii) by an entity that is prescribed by the regulations and that provides health care, or

(iii) by an entity that is prescribed by the regulations and that carries on activities for the purpose of improving or maintaining the quality of care provided by a health facility, a health care provider or a class of health facility or health care provider,

(b) that meets the prescribed criteria, if any, and

(c) whose functions are to carry on activities for the purpose of studying, assessing or evaluating the provision of health care with a view to improving or maintaining the quality of the health care or the level of skill, knowledge and competence of the persons who provide the health care; (“comité de la qualité des soins”)

“quality of care information” means information that,

(a) is collected by or prepared for a quality of care committee for the sole or primary purpose of assisting the committee in carrying out its functions, or

(b) relates solely or primarily to any activity that a quality of care committee carries on as part of its functions,

but does not include,

(c) information contained in a record that is maintained for the purpose of providing health care to an individual,

(d) information contained in a record that is required by law to be created or to be maintained,

(e) facts contained in a record of an incident involving the provision of health care to an individual, except if the facts involving the incident are also fully recorded in a record mentioned in clause (c) relating to the individual, or

(f) information that a regulation specifies is not quality of care information and that a quality of care committee receives after the day on which that regulation is made; (“renseignements sur la qualité des soins”)

“regulations” mean the regulations made under this Act; (“règlements”)

“use”, with respect to quality of care information, does not include to disclose the information and “use”, as a noun, does not include disclosure of the information; (“utiliser”, “utilisation”)

“witness” means a person, whether or not a party to a proceeding, who, in the course of the proceeding,

(a) is examined or cross-examined for discovery, either orally or in writing,

(b) makes an affidavit, or

(c) is competent or compellable to be examined or cross-examined or to produce a document, whether under oath or not. (“témoin”) 2004, c. 3, Sched. B, s. 1; 2009, c. 33, Sched. 18, s. 28 (1).

Application of Freedom of Information and Protection of Privacy Act

1.1  The Freedom of Information and Protection of Privacy Act does not apply to quality of care information. 2010, c. 25, s. 28.

Conflict

2.  In the event of a conflict between a provision of this Act or its regulations and a provision of any other Act or its regulations, this Act and its regulations prevail unless this Act or its regulations specifically provide otherwise. 2004, c. 3, Sched. B, s. 2.

Quality of care information continued

2.1  Quality of care information collected by or for a quality of care committee while it is constituted and operating in accordance with this Act shall continue to be treated as quality of care information after,

(a) the quality of care committee by or for which the information was collected is no longer in operation; or

(b) the health facility or entity that established, appointed or approved the quality of care committee is no longer eligible to establish, appoint or approve a quality of care committee. 2009, c. 33, Sched. 18, s. 28 (2).

Disclosure to quality of care committee

3.  Despite this Act and the Personal Health Information Protection Act, 2004, a person may disclose any information to a quality of care committee for the purposes of the committee. 2004, c. 3, Sched. B, s. 3.

Quality of care information

4.  (1)  Despite the Personal Health Information Protection Act, 2004, no person shall disclose quality of care information except as permitted by this Act. 2004, c. 3, Sched. B, s. 4 (1).

Definition

(2)  In subsections (3) and (4),

“management”, with respect to a health facility or entity, includes members of the senior management staff, the board of directors, governors or trustees and members of the commission or other governing body or authority of the facility or entity. 2004, c. 3, Sched. B, s. 4 (2).

Exception, quality of care committee

(3)  Despite subsection (1) and the Personal Health Information Protection Act, 2004, a quality of care committee may disclose quality of care information to,

(a) the management of the health facility or entity mentioned in subclause (a) (ii) of the definition of “quality of care committee” in section 1 that established, appointed or approved the committee if the committee considers it appropriate to do so for the purpose of improving or maintaining the quality of health care provided in or by the facility or entity; or

(b) the management of a health facility or health care provider, where an entity mentioned in subclause (a) (iii) of the definition of “quality of care committee” in section 1 carries on activities for the purpose of improving or maintaining the quality of health care provided by the facility, the provider or a class including the facility or the provider, if the committee considers it appropriate to do so for the purpose of improving or maintaining the quality of health care provided in or by the facility, provider or class. 2004, c. 3, Sched. B, s. 4 (3).

Exception, any person

(4)  Despite subsection (1) and the Personal Health Information Protection Act, 2004, a person may disclose quality of care information if the disclosure is necessary for the purposes of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. 2004, c. 3, Sched. B, s. 4 (4).

Use of information

(5)  A person to whom information is disclosed under subsection (3), (4) or (6) shall not use the information except for the purposes for which the information was disclosed to the person. 2004, c. 3, Sched. B, s. 4 (5); 2006, c. 19, Sched. L, s. 9 (1).

Further disclosure of information

(6)  A member of the management of a health facility or entity described in subsection (3) to whom quality of care information is disclosed under that subsection may disclose the information to an agent or employee of the facility or entity if the disclosure is necessary for the purposes of improving or maintaining the quality of health care provided in or by the facility or entity. 2004, c. 3, Sched. B, s. 4 (6).

Same

(7)  A person to whom information is disclosed under subsection (3), (4) or (6) shall not disclose the information except if subsection (4) or (6) permits the disclosure. 2004, c. 3, Sched. B, s. 4 (7).

Non-disclosure in proceeding

5.  (1)  No person shall ask a witness and no court or other body holding a proceeding shall permit or require a witness in the proceeding to disclose quality of care information. 2004, c. 3, Sched. B, s. 5 (1).

Non-admissibility of evidence

(2)  Quality of care information is not admissible in evidence in a proceeding. 2004, c. 3, Sched. B, s. 5 (2).

Non-retaliation

6.  No one shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage a person by reason that the person has disclosed information to a quality of care committee under section 3. 2004, c. 3, Sched. B, s. 6; 2006, c. 19, Sched. L, s. 9 (2).

Offence

7.  (1)  Every person who contravenes section 4 or 6 is guilty of an offence. 2004, c. 3, Sched. B, s. 7 (1).

Penalty

(2)  A person who is guilty of an offence under subsection (1) is liable, on conviction,

(a) to a fine of not more than $50,000, if the person is an individual; or

(b) to a fine of not more than $250,000, if the person is not an individual. 2004, c. 3, Sched. B, s. 7 (2).

Officers, etc.

(3)  If a corporation commits an offence under this Act, every officer, member, employee or other agent of the corporation who authorized the offence, or who had the authority to prevent the offence from being committed but knowingly refrained from doing so, is a party to and guilty of the offence and is liable, on conviction, to the penalty for the offence, whether or not the corporation has been prosecuted or convicted. 2004, c. 3, Sched. B, s. 7 (3).

Immunity

8.  (1)  No action or other proceeding may be instituted against a person who in good faith discloses information to a quality of care committee at the request of the committee or for the purposes of assisting the committee in carrying out its functions. 2004, c. 3, Sched. B, s. 8 (1).

Same, committee member

(2)  No action or other proceeding, including a prosecution for an offence under section 7, may be instituted in respect of,

(a) a member of a committee who, in good faith, discloses quality of care information for a purpose described in subsection 4 (3); or

(b) a person who, in good faith, discloses information for a purpose described in subsection 4 (4), if the disclosure is reasonable in the circumstances. 2004, c. 3, Sched. B, s. 8 (2).

Same, failure to disclose

(3)  No action or other proceeding may be instituted against a member of a committee in respect of the failure of the committee to make a disclosure described in subsection 4 (3) or (4). 2004, c. 3, Sched. B, s. 8 (3).

Regulations

9.  (1)  Subject to section 10, the Lieutenant Governor in Council may make regulations,

(a) defining any term used in this Act that is not defined in this Act;

(b) specifying information for the purpose of clause (f) of the definition of “quality of care information” in section 1;

(c) specifying a provision of another Act or its regulations that prevails over this Act or its regulations for the purpose of section 2;

(d) prescribing information for the purpose of clause 10 (2) (e). 2004, c. 3, Sched. B, s. 9 (1).

Minister’s regulations

(2)  The Minister may make regulations prescribing anything that the definition of “health care” or “quality of care committee” in section 1 mentions as being prescribed. 2004, c. 3, Sched. B, s. 9 (2).

Public consultation before making regulations

10.  (1)  Subject to subsection (7), the Lieutenant Governor in Council shall not make any regulation under section 9 unless,

(a) the Minister has published a notice of the proposed regulation in The Ontario Gazette and given notice of the proposed regulation by all other means that the Minister considers appropriate for the purpose of providing notice to the persons who may be affected by the proposed regulation;

(b) the notice complies with the requirements of this section;

(c) the time periods specified in the notice, during which members of the public may exercise a right described in clause (2) (b) or (c), have expired; and

(d) the Minister has considered whatever comments and submissions that members of the public have made on the proposed regulation in accordance with clause (2) (b) or (c) and has reported to the Lieutenant Governor in Council on what, if any, changes to the proposed regulation the Minister considers appropriate. 2004, c. 3, Sched. B, s. 10 (1).

Contents of notice

(2)  The notice mentioned in clause (1) (a) shall contain,

(a) a description of the proposed regulation and the text of it;

(b) a statement of the time period during which members of the public may submit written comments on the proposed regulation to the Minister and the manner in which and the address to which the comments must be submitted;

(c) a description of whatever other rights, in addition to the right described in clause (b), that members of the public have to make submissions on the proposed regulation and the manner in which and the time period during which those rights must be exercised;

(d) a statement of where and when members of the public may review written information about the proposed regulation;

(e) all prescribed information; and

(f) all other information that the Minister considers appropriate. 2004, c. 3, Sched. B, s. 10 (2).

Time period for comments

(3)  The time period mentioned in clauses (2) (b) and (c) shall be at least 60 days after the Minister gives the notice mentioned in clause (1) (a) unless the Minister shortens the time period in accordance with subsection (4). 2004, c. 3, Sched. B, s. 10 (3).

Shorter time period for comments

(4)  The Minister may shorten the time period if, in the Minister’s opinion,

(a) the urgency of the situation requires it;

(b) the proposed regulation clarifies the intent or operation of this Act or the regulations; or

(c) the proposed regulation is of a minor or technical nature. 2004, c. 3, Sched. B, s. 10 (4).

Discretion to make regulations

(5)  Upon receiving the Minister’s report mentioned in clause (1) (d), the Lieutenant Governor in Council, without further notice under subsection (1), may make the proposed regulation with the changes that the Lieutenant Governor in Council considers appropriate, whether or not those changes are mentioned in the Minister’s report. 2004, c. 3, Sched. B, s. 10 (5).

No public consultation

(6)  The Minister may decide that subsections (1) to (5) should not apply to the power of the Lieutenant Governor in Council to make a regulation under section 9 if, in the Minister’s opinion,

(a) the urgency of the situation requires it;

(b) the proposed regulation clarifies the intent or operation of this Act or the regulations; or

(c) the proposed regulation is of a minor or technical nature. 2004, c. 3, Sched. B, s. 10 (6).

Same

(7)  If the Minister decides that subsections (1) to (5) should not apply to the power of the Lieutenant Governor in Council to make a regulation under section 9,

(a) those subsections do not apply to the power of the Lieutenant Governor in Council to make the regulation; and

(b) the Minister shall give notice of the decision to the public as soon as is reasonably possible after making the decision. 2004, c. 3, Sched. B, s. 10 (7).

Contents of notice

(8)  The notice mentioned in clause (7) (b) shall include a statement of the Minister’s reasons for making the decision and all other information that the Minister considers appropriate. 2004, c. 3, Sched. B, s. 10 (8).

Publication of notice

(9)  The Minister shall publish the notice mentioned in clause (7) (b) in The Ontario Gazette and give the notice by all other means that the Minister considers appropriate. 2004, c. 3, Sched. B, s. 10 (9).

Temporary regulation

(10)  If the Minister decides that subsections (1) to (5) should not apply to the power of the Lieutenant Governor in Council to make a regulation under section 9 because the Minister is of the opinion that the urgency of the situation requires it, the regulation shall,

(a) be identified as a temporary regulation in the text of the regulation; and

(b) unless it is revoked before its expiry, expire at a time specified in the regulation, which shall not be after the second anniversary of the day on which the regulation comes into force. 2004, c. 3, Sched. B, s. 10 (10).

No review

(11)  Subject to subsection (12), a court shall not review any action, decision, failure to take action or failure to make a decision by the Lieutenant Governor in Council or the Minister under this section. 2004, c. 3, Sched. B, s. 10 (11).

Exception

(12)  Any person resident in Ontario may make an application for judicial review under the Judicial Review Procedure Act on the grounds that the Minister has not taken a step required by this section. 2004, c. 3, Sched. B, s. 10 (12).

Time for application

(13)  No person shall make an application under subsection (12) with respect to a regulation later than 21 days after the day on which,

(a) the Minister publishes a notice with respect to the regulation under clause (1) (a) or subsection (9), where applicable; or

(b) the regulation is filed, if it is a regulation described in subsection (10). 2004, c. 3, Sched. B, s. 10 (13).

11.  Omitted (amends or repeals other Acts). 2004, c. 3, Sched. B, s. 11.

12.  Omitted (provides for coming into force of provisions of this Act). 2004, c. 3, Sched. B, s. 12.

13.  Omitted (enacts short title of this Act). 2004, c. 3, Sched. B, s. 13.

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