Both public and private hospitals produce Root Cause Analysis (RCA) reports as a result of internal investigations into health care incidents.
On 23 January 2015, Deputy State Coroner (DSC) Freund handed down a judgment confirming (again) that NSW legislation prevents such reports being tendered as evidence in "any proceeding"1, including a Coronial Inquest.
The issue arose in the Inquest into the Death of XY, in which we acted for the Northern Sydney Local Health District (NSLHD). Counsel for the deceased's family sought to tender the RCA report prepared in relation to the deceased's death. Counsel for the family argued that section 20R of the Health Administration Act 1982 (NSW) [the Act] does not prevent the admission of a RCA report into evidence in coronial proceedings.
Counsel for the family submitted that the Act does not define the terms "proceeding", "inquest" or "coronial proceeding". Because these terms are used separately and not defined by reference to each other, the legislature did not intend that the reference to "proceeding" in s20R would apply to coronial proceedings. It was submitted that the term "proceeding" should be construed as "civil proceeding".
The Statutory Regime
Part 2, Division 6C of the Act governs the RCA process in the NSW public health system. Section 20M(1) requires that when a "reportable incident" involving a relevant health services organisation is reported to the chief executive officer of the organisation, the organisation is to appoint an RCA team in relation to that incident. A "reportable incident" is defined as an incident of the type set out in Appendix D of the Ministry of Health Policy Directive PD2014_004 'Incident Management Policy'.
The RCA team has specified responsibilities in s20O of the Act to provide a report on completion of an incident that contains:
- A description of the incident;
- A causation statement, being a statement that indicates the reason why the RCA team considers the incident concerned occurred;
- If the RCA team has any recommendations as to the need for changes or improvements in relation to a procedure or practice arising out of the incident.
Section 20O(3A) provides that, subject to 20R, the contents of an RCA report may be disclosed to any person and used for any purpose. Section 20R of the Health Administration Act 1982 provides that RCA reports cannot be adduced or admitted in any proceedings except in proceedings in respect of any act or omission by the RCA team or team member.
Her Honour DSC Freund, with reference to the Interpretation Act 1987 (NSW) and Project Blue Sky Inc v Australian Broadcasting Authority2, thought it necessary to have regard to the conjoining word "any" that appears before "proceeding" in s20R. Therefore, the type of proceeding to which s20R applies should be interpreted inclusively; that is, "every proceeding", including a coronial proceeding.
Her Honour concluded that the reason for restricting the use of RCA reports was to avoid undermining the confidence of those participating in the RCA process. The RCA report is primarily prepared as a tool for the health organisation to independently and critically analyse incidents and respond to any identified systemic issues. If individuals become reluctant to openly engage with the RCA process, the purpose of the RCA report will be frustrated.
As a matter of common sense, it could be expected that persons called upon to provide information to the RCA team may be reluctant to provide full and frank information should there be a real possibility that the RCA report may be admitted into evidence in proceedings, particularly proceedings from which adverse consequences may flow to an individual. This includes Coroners' findings as Coroners are empowered to recommend that a matter be investigated or reviewed by a specified person or body.
Her Honour also had regard to the legislative history and purpose of the provision. The language of the provision and the relevant Part, supported by the extrinsic materials, suggest that the legislature intended s20R to operate in this jurisdiction (and others) in order to safeguard against the use of RCA reports in "any proceeding", including a Coronial Inquest.
The findings of DSC Freund make clear that s20R of the Act extends to coronial proceedings. This prevents the admission into evidence of RCA reports published pursuant to Part 2 Division 6C of the Act.
This also extends to the provision of RCA reports to expert witnesses. If an expert witness relies upon an RCA, this may impact upon the admissibility of that expert's evidence. At the very least, the expert will need to assert that he or she has not relied on any part of the RCA report in formulating his or her expert opinion, and will need to be able to delete any references to the RCA report in his or her opinion.
Relevantly, Justice Harrison of the Supreme Court has recently handed down a brief judgment in relation to an application brought by a plaintiff to rely on documents from the brief of evidence compiled by Police in the course of a Coronial Inquest. His Honour heard our submissions that the RCA report could not be relied on in civil proceedings as a result of section 20R of the Act. His Honour agreed and made orders preventing the plaintiff from relying on the RCA report in the proceedings, although leave was granted for the plaintiff to rely on other material in the brief.
1 Section 20R of the Health Administration Act 1982 (NSW).
2 (1998) 194 CLR 355.