TORONTO - Staff at Ontario hospitals should not be shredding documents before the institutions become subject to freedom of information legislation next year, Premier Dalton McGuinty warned Wednesday.
Osler, Hoskin and Harcourt, a Toronto law firm, posted a review of the legislation requiring hospitals to open their records to the public in which it recommended they "cleanse" files if they want to avoid another eHealth scandal.
"The eHealth Ontario spending scandal and a local health integration network's failure to meet requirements for community engagement in decisions involving major initiatives are examples of how, in the future, a hospital's reputation can be harmed through a (freedom of information) request," advised the law firm. "Accordingly, hospitals will want to (be) cleansing existing files on or before Dec. 31, 2011 ... in order to avoid any reputational risks."
The eHealth scandal, which included lucrative untendered contracts and lavish expense account abuses, saw $1 billion spent over a decade to develop electronic health records but with very little to show for it in the end. It forced the resignation of a health minister as well as the CEO of the eHealth agency.
The legal advice to purge files is exactly the opposite of the government's intentions when it expanded FOI legislation to cover hospitals for the first time, said McGuinty.
"There's the letter of the law and there's the spirit, and I would ask the people who work in our hospitals to respect both," he said. "There's a legitimate expectation on the part of Ontarians that we get a better understanding of what is happening inside our hospitals. That does not justify, it does not authorize, it does not give licence to people in our hospitals to start destroying documents."
The government wants open, accountable and transparent hospitals, said McGuinty, a position supported by the Ontario Hospital Association.
"The first principle for the OHA, and for the law firms that are actually assisting us in preparing for (freedom of information legislation), is that the spirit and the letter of the law must be adhered to at all times, period," the OHA said in a release. "To do otherwise would undermine public confidence in hospitals and our health care system."
Despite the assurances from the premier, the opposition parties wanted more explicit directions given to the hospitals to maintain their records.
"(McGuinty) should have been telling us today that he's issued a written directive to all of the hospitals not to listen to the law firm's advice, which I think borders on being illegal advice to skirt the law," said Progressive Conservative critic Jim Wilson. "I would have thought the premier would have had a much stronger message."
The New Democrats said the Liberals opened a loophole in the freedom of information law in last month's Ontario budget that allows hospitals to "refuse to disclose records" used to evaluate the quality of care and services.
"This premier talks a good game on the FOI process, but everyone knows they buried in the budget a loophole that you could drive a Mack truck through in terms of the FOI process," said NDP Leader Andrea Horwath. "Obviously hospitals need to get the message strong and clear, but this government needs to get the message as well."
Critics like the Ontario Health Coaltion, a citizens advocacy group, plan to lobby against the FOI loophole for hospitals, saying it undermines access to information.
The government said it did not give hospitals the full exclusion they were asking for, but instead granted an exemption for the data considered necessary for frank discussions within hospital walls to drive quality improvement.
An exemption means people can ask for the information and if the hospital refuses, the decision can be appealed to Ontario's Information and Privacy Commissioner. If material is excluded under freedom of information legislation, it cannot even be requested.
