Apples and Oranges

The Premier was asked to investigate 330 cases of death or unnecessary suffering due to ER waits, 250 cancer deaths while on the surgical wait list and a culture of intimidation that prevents doctors from advocating on behalf of their patients.  He had 2 choices:  set up a public inquiry or proceed with a Health Quality Council (HQC) review.  He opted for a HQC review and showed remarkable speed in triggering the review under the HQC Regulation (Reg 130/2006) and appointing a blue ribbon Advisory Panel* to assist the HQC.  Why the haste?  Just 3 weeks ago his Health Minister was committed to an AHS review of the 321 ER cases (now up to 330).  Minister Zwozdesky indicated that the AHS review had been ongoing for 4 months and was blasé to the point of indifference as to its progress—the AHS “…had assigned a senior physician to conduct that review…It may not yet be quite complete, but I’ll try and get an update for you”.**

Minister Zwozdesky had barely finished speaking when things blew up—again.  Credible allegations of the 250 cancer deaths came to light.  Reputable doctors specializing in psychiatry, cancer treatment, emergency procedures and infectious diseases described a culture of intimidation that threatened to end the careers of those who advocated for their patients.  The PCs quickly realized that an AHS “review” of the 321 cases, let alone the cancer deaths, was not going to cut it.  So they switched to Plan B—the HQC review—and have refused to reconsider notwithstanding the barrage of criticism resulting from that decision.  They’ve argued that the HQC review is similar to a public inquiry because a public inquiry would have to be called by the government, would be subject to legislation (the Alberta Public Inquiries Act) and would make recommendations to the government.  This is simplistic and confuses apples with oranges because they are both fruit.

Why is Plan B unacceptable to the opposition and the doctors?  Go back to the purpose of the review.  Is the purpose to identify flaws in the healthcare system so that they can be rectified or is it a public relations exercise intended to defuse a situation which threatens the PCs on the eve of an election?  Put another way:  who is the review intended to serve, the people of Alberta or the PCs?

Let’s compare the two processes, starting with the HQC review.  The HQC is appointed by the Minister and is accountable to the Minister in all respects.*** Most importantly, the HQC must obtain the prior approval of the Minister before it makes any recommendations. Its CEO, Dr John Cowell, is in charge of the review.  He can be fired by the deputy minister if he fails to carry out his work in accordance with the Minister’s directions.  Notwithstanding this clear incentive to do what the Health Minister tells him, Dr Cowell says he’s not anyone’s lapdog and would resign if there is interference.**** Contrast that with comissioners on a public inquiry who are appointed for that sole purpose and are not beholden to the government for ongoing employment or future funding.

The HQC’s mandate is to assess patient safety and the quality of health service.  It conducts reviews at the request of the Minister and the AHS.  In the past it has reviewed the Government’s response to the H1N1 pandemic, medication mix-ups, the re-use of single-syringes and emergency and urgent care procedures.  While these reviews are meaningful,  not one rises to the level of complexity or magnitude of this inquiry.  A public inquiry’s mandate is as broad as it needs to be to serve the public interest.

Nevertheless the HQC is soldiering on.  It recently released its Terms of Reference.  Part A addresses quality of care and safety concerns for 330 patients who received emergency care in 2009 and 2010 at the University of Alberta Hospital.  Remember the dates—they’re important.  Part B addresses the role and ability of physicians to advocate for patients where they believe their safety and quality of care may be “compromised due to system resources or policies”—this must be a euphemism for a culture of intimidation.  When the review is completed the HQC will release its recommendations (subject to the prior approval of the Minister as per Reg 130/2006) for both Part A and Part B.

The HQC review will be a “quality assurance activity” under section 9 of the Alberta Evidence Act.  The Premier is adamant that section 9 provides full immunity and anonymity to the doctors who testify.  This is not the case.  Section 9 simply states that the evidence a doctor gives in the HQC review cannot be used against him in another action.  The critical question is:  does an “action” under section 9 include a professional disciplinary action which results in the suspension or loss of one’s license or is that an internal HR process outside the protection of section 9.  Furthermore, section 9 affords absolutely no protection in the shadowy world where a doctor is sidelined, demoted or terminated because he has failed to demonstrate “leadership and teamwork”.  No hospital administrator will state that the demotion or termination was the result of a government phone call demanding that doctor’s head on a platter because his advocacy had become “intolerable”.*****

The HQC review will take place behind closed doors, shrouded in secrecy;  but a public inquiry is, by definition, public.  It is intended to serve the public and is usually open to the public.

A public inquiry is an investigative process, the HQC review is not.  The public inquiry can (1) compel witnesses to appear and testify under oath, (2) treat false answers as perjury and (3) compel the production of documents.  This critical distinction has been brought to the Premier’s attention many times.  His response is: “the Health Quality Council has very rigorous and robust terms of reference, and they can go back as far as they want.  They can call anybody to deliver the evidence.****** In this comment the Premier has significantly expanded the scope of the HQC review.  Remember the HQC Terms of Reference restricted the review of ER cases to the 2009 and 2010 time frame…the Premier just made the time frame unlimited.  Remember also that the HQC does not have the power to compel witnesses to appear…the Premier blew through that limitation when he said that the HQC “can call anybody to deliver the evidence”. It would be entertaining to test the Premier’s sincerity by calling the existing and past health ministers, Gene Zwozdesky, Ron Liepert and Gary Mar, to testify unfortunately Reg 130/2006 won’t allow it.

One final distinction, in addition to making recommendations for improvement, a public inquiry, unlike the HQC, may make findings of misconduct which is defined as “improper or unprofessional behaviour” or “bad management”.  Could this be the Premier’s real concern?

So back to the original question: what is the purpose of the healthcare review?  Is it a sincere effort to understand systemic healthcare problems and rectify them or a PR exercise designed to carry the PCs through the next election?  I believe that the HQC will try its best to identify flaws in the system and make meaningful recommendations to address them.  However the fact that the HQC cannot compel the attendance of witnesses or the production of documents and requires the prior approval of the health minister before it makes its recommendations confirms that the HQC lacks the power and the independence necessary to carry out the investigation and bring about real change.  No amount of bafflegab on the part of the Premier and the Health Minister will unshackle the HQC from its legislative mandate.

Looks like a PR exercise to me.

*The Advisory Panel members are: Dr Zaheer Lakhani, The Honourable Anne McLellan, Mr Art Price, Dr Simon Sutcliffe and The Honourable Allan Wachowich QC.

**Hansard, March 3, 2011, p 175

***Health Quality Council of Alberta Regulation 130/2006, sections 15 and 16

****Calgary Herald, March 15, 2011, p A3

*****Calgary Herald, March 19, 2011, p A4

******Hansard, March 23, 2011, p 510

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