Recently passed amendments to the Health Administration Act 1982 (NSW)[1] have been celebrated by the NSW government as an improvement to the efficiency and timeliness of Root Cause Analysis systems in NSW health services organisations.
The amendments come off the back of extensive consultation with stakeholders, including the NSW Nurses and Midwives Association, Australian Medical Association, local health districts and medical defence organisations. Meridian Lawyers Principal, Nevena Brown, also assisted with the conceptualisation of the proposed changes.
Background
A Root Cause Analysis (RCA) is an investigation and analysis procedure used by NSW health services organisations following the occurrence of a “reportable incident” in a relevant health services organisation. The aim of an RCA is to identify the cause of the incident and any contributing factors, following which recommendations are made to reduce the likelihood of similar incidents occurring in the future. A “reportable incident” is a serious adverse incident that is likely to be the result of systems issues.[2]
The Health Legislation Amendment Act 2018 (NSW) will replace the term RCA with “serious adverse event review” (SAER) and introduces the concept of a preliminary risk assessment which is to be conducted before any formal SAER takes place. According to MP Bronnie Taylor, the preliminary risk assessment process “will allow for earlier identification of risk factors and improve open disclosure processes for patients and families.[3]” We understand that the concept of this preliminary review process was prompted, at least in part, by community concerns that the current RCA procedures are slow and opaque, and do not allow for timely dialogue with affected family members.
What the amendments mean for NSW Health Services organisatons
Under the new provisions, NSW health services organisations must conduct a preliminary assessment when an incident is reported, if the organisation is of the opinion that the incident is, or may be, a reportable incident. Even if the incident is not a reportable incident, the organisation must conduct a preliminary risk assessment if the incident may be the result of a serious systemic problem and the organisation believes that a preliminary risk assessment should be conducted.[4]
The amendments provide that the functions of the assessor in a preliminary risk assessment are to:
“…provide advice…to the organisation…to assist the organisation in understanding the events comprising the incident and the measures required to appropriately manage the incident and remove or mitigate any risk.[5]”
An organisation must not disclose information obtained from the preliminary assessment, except in limited circumstances. These are set out in the new provisions and are generally uncontroversial save for the new ability to provide relevant information to:
“…a patient involved in the incident, a family member or carer of the patient or a person nominated by any such patient, family member or carer.[6]”
If an organisation provides information to a family member or carer of the patient, or other persons listed above, it must take reasonable steps not to disclose information that identifies a person other than the patient.[7]
Stakeholders raised concerns during the consultation process about the public dissemination of information obtained during the preliminary assessment, particularly because of the nature of the information (ie, because it is preliminary, and not a formal finding or recommendation). However, MP Bronnie Taylor confirmed explicitly that preliminary risk assessment and serious adverse event reviews will both enjoy exemptions from the Government Information (Public Access) Act 2009 (NSW), to ensure that staff at the health services organisations can participate freely and candidly in the processes.[8]
Once a preliminary risk assessment has been completed, the relevant health services organisations must then determine whether it is necessary to carry out a more formal, SAER (which will be required if the incident is either a reportable incident, or if the organisation believes it may be the result of a serious systemic problem and that such a review ought to be carried out).
Although the new Health Legislation Amendment Act 2018 (NSW) is now in force, the provisions concerning the changes to RCA processes will commence on proclamation. Any NSW health service organisations affected by the changes should consider preparing the necessary amendments to policy and procedure documents in anticipation of this.
Currently, the RCA processes applying to private health facilities are essentially identical to the RCA requirements in the public system. However, none of the recent changes at this stage have been extended to the private sector.
Get in touch
Meridian Lawyers can provide advice and assistance to you regarding any impact that the new legislation may have on your organisation. This article was written by Principal Nevena Brown and Associate Anna Martin, please contact Nevena on (02) 9018 9933 if you would like to discuss any aspect of it further.
[1] Health Legislation Amendment Act 2018 (NSW)
[2] Second Reading Speech before the Legislative Council for the Health Legislation Amendment Bill 2017, 14 February 2018.
[3] Ibid.
[4] Section 21C(1), Schedule 1, Health Legislation Amendment Act 2018 (NSW)
[5] Ibid, section 21D
[6]Ibid, section 21F(1)(d)
[7] Ibid, section 21F(2)
[8] Second Reading Speech before the Legislative Council for the Health Legislation Amendment Bill 2017, 14 February 2018.