Victoria health services: Key changes to the governance of quality and safety

On 1 March 2022 the Health Legislation Amendment (Quality and Safety) Act 2022 (Vic) (Act) received royal assent.

The Act’s purpose is to amend key Victorian health legislation, including the Health Services Act 1988 (Vic), and will affect the way in which safety and quality within Victorian health services is investigated, reviewed and reported.

Notably, an appointed Chief Quality and Safety Officer (CQSO) will have extensive powers to conduct quality and safety reviews, audits and issue guidelines to "health service entities", which include public and private hospitals and ambulance services.

The CQSO will have broad powers to do all things necessary or convenient to perform its functions. Importantly, a review will be permitted if, in the CQSO's opinion:

• the health, safety or wellbeing of a person is or was endangered because of the provision of the services; or
• the review may assist to identify organisational or physical structures, functions, workplace culture and outcomes of the provision of health services that could be improved; or
• the review may assist to identify systemic issues or trends that may be addressed to improve the quality and safety of the provision of health services.

Quality and safety reviews: Key questions answered

Will health service entities receive notice of upcoming quality and safety reviews?

The CQSO will be required to provide health service entities with written notice of its intention to undertake a quality and safety review within a reasonable time before commencing the review.

However, the CQSO can dispense with the notice requirement if satisfied that it is necessary in the circumstances.

What powers will the CQSO have?

The CQSO, and its authorised officers, will have the power to:

• give written directions to health service entities to produce documents or answer any questions relating to a quality and safety review; and
• enter the premises of a health service entity at any time for the purpose of conducting a quality and safety review and inspect, examine and take copies of any item, such as a document.

Are health service entities required to assist in the quality and safety review process?

Health service entities will be required to provide reasonable assistance to the CQSO, and its authorised officers, while they conduct a quality and safety review. However, there is protection from self-incrimination.

What types of quality and safety reviews can be conducted?

The CQSO can conduct:

1. a standard quality and safety review; or
2. a protected quality and safety review; or
3. a serious adverse patient safety event (SAPSE) review.

When deciding whether to undertake a standard or a protected quality and safety review, the CQSO will consider whether additional protections are required to ensure open and honest engagement with the review process by those persons involved in the services being reviewed, having regard to the reputation, privacy, safety and wellbeing of those persons.

A SAPSE review will arise out of an event of a prescribed class or category that results in harm to one or more individuals. Although “serious adverse patient safety event” is a defined term within the Act, this definition does not prescribe in detail what constitutes a SAPSE. We expect further direction will be provided in due course.

Will the results of a quality and safety review be published?

Following completion of a quality and safety review, the CQSO will prepare a written report of its findings. A copy of the report must be provided to any health service entity involved in the quality and safety review.

Should the report contain recommendations, within 10 business days from the date of receipt the health service entity must provide a written response to the report addressing the recommendations.

The CQSO will also provide a copy of the report to the Secretary of the Department of Health. In the context of a standard quality and safety review, the Secretary may publish the report and any response by the health service entity if it considers it in the public interest to do so. However, the Secretary cannot publish a report or a response that contains identifying information about a person without written consent.

Protected quality and safety reviews are just that – more protected. However, the CQSO can prepare a summary of the report for provision to a "prescribed person", which includes a patient, their immediate family or next of kin. The summary may include:

• the facts established during the quality and safety review; and
• the recommendations made by the CQSO.

Interestingly, there is a positive obligation on health service entities who receive a SAPSE review report to offer a copy of the report to, or provide the report at the request of, a prescribed person. As such, a patient, their family or next of kin will have a right to access a SAPSE review report.

Can a quality and safety review be relied on in litigation and/or disciplinary proceedings?

If the quality and safety review is a protected review, documents that were created for the sole purpose of or produced/provided in the course of conducting the review cannot be produced before any court, tribunal, board or agency. Further, except where information or reports have been published by the Secretary, any other information or reports obtained by or that came into the possession of the CQSO in the course of conducting a protected review, which includes documents and any summary of a report, cannot be required to be produced before any court, tribunal or board.

SAPSE review reports and documents prepared in the course of conducting a SAPSE review are also protected from production and will not be admissible in any action before any court, tribunal or board. However, a SAPSE review report may be produced to the Coroner’s Court for the purposes of a coronial inquest or investigation.

Conclusion

Currently, Victorian health services conduct their own internal reviews, overseen by internal quality and safety teams. Further, certain adverse events may also be reviewed by health services with input from Safer Care Victoria, and the independent bodies it oversees, such as the Consultative Council on Obstetric and Paediatric Mortality and Morbidity.

With a commencement date of 30 November 2022, unless proclaimed earlier, the Act will change the landscape with respect to quality and safety reviews in Victoria. We will watch with interest as to how this new legislative framework is implemented. A key consideration for health services will be which events trigger which type of review. As explained above, the type of review that the CQSO elects to undertake will have significant implications on how the review outcome can or must be communicated to the broader community and interested parties.