Safety of care

Improving patient safety and reducing risks

Team debriefs: Participate and minimize your medical-legal risks

Originally published December 2019
19-20-E

Debriefs can improve patient care, but need to be properly structured and focused on learning to reduce medical-legal risks for participants.

When leading CMPA workshops for physicians and their teams, Dr. Guylaine Lefebvre asks participants to describe how debriefs have improved their workplace culture and patient care. Some physicians recount their experiences, but others tell the director of CMPA’s Practice Improvement department they are reluctant to take part in debriefs because they worry the information shared may be used in a legal proceeding.

“They collectively recognize that if you can learn from cases, that’s good,” says Dr. Lefebvre. "However, they also worry about the legal implications.” Although these concerns are understandable, she says, they shouldn’t stop physicians from participating in debriefs.

In most instances, says Dr. Lefebvre, structured debriefs that focus on learning and improvement will help teams adapt, learn from each other, and improve communication. The resulting advantages for patient care should outweigh the risk of the information being misused or disclosed in legal proceedings.

In one instance, a physician told Dr. Lefebvre she had instituted routine debriefs after every delivery in the birthing unit. “This physician noticed an improvement in communication as people gained trust and confidence with each other,” says Dr. Lefebvre. “As the communication became routine, it became easier to talk about improvements when things didn’t go as smoothly as they’d wished.”

Patient safety incidents and debriefs

If a patient safety incident occurs, you should always discuss the incident with patients to inform them of the facts. Debriefs should never interfere with or replace these discussions. As a physician, you have an ethical, professional, and legal obligation to disclose patient safety incidents to your patients. The CMPA’s handbook, Disclosing harm from healthcare delivery: Open and honest communication with patients,1 provides guidance and good practices about physician communications with patients regarding the disclosure of harm.

What are debriefs?

Many in healthcare, including physicians, recognize debriefs as a valuable tool in improving the quality of patient care.2,3 These discussions are conducted by the involved healthcare professionals after critical clinical events or routinely after certain treatments and allow providers to analyze and learn from what occurred during care delivery. One author describes them as “opportunities for exploring and making sense of what happened during an event or experience, discussing what went well, and identifying what could be done to change, improve and do better next time.”2

Debriefs differ from morbidity and mortality (M&M) rounds. M&M rounds are structured events where members of a department review cases more generically.4,5 Debriefs generally happen immediately after care delivery and include the providers directly involved in the care of the patient.

Two ways debrief information may be protected

Depending on how debriefs are set up and conducted, it is possible that some information shared during discussions may be protected from disclosure by quality assurance (QA) legislation or common law privilege.

While the criteria to qualify for quality assurance legislation is expressly set out in legislation, it must be emphasized that common law privilege is applied on a case-by-case basis with no advance guarantee of protection. Since common law protection is uncertain, it is important to know ahead what safeguards may be available and to consider whether it is necessary to structure and conduct debriefs to potentially benefit from the protection offered by quality assurance legislation or common law privilege.

How courts may consider requests to protect debrief information

In civil litigation, the general rule is that all relevant information is admissible as evidence, but a court may rule that information shared during a debrief is protected from disclosure. The following scenario illustrates how a court may approach a request to protect such information.

An individual launches a legal action alleging he was harmed by the delivery of healthcare. During legal proceedings, the defendant healthcare providers and hospitals are asked to produce information about discussions or reviews they conducted after the care was provided. The defendants are giving evidence under oath and they acknowledge a debrief was held. The court is then asked to rule on whether the defendants have to disclose information discussed and any conclusions reached during the debrief.

In making its decision, the court may look at protection offered by quality assurance legislation. If this protection applies, the information covered by the protection does not have to be disclosed in the proceedings. If the protection does not apply, the court may look to common law privilege. This protection may be available for communications in certain relationships that are based on an expectation of confidentiality, among other things. The courts have ruled previously that the confidentiality of these communications should be respected when the relationship is one that society wants to foster.

When a court considers whether a debrief meets the criteria for protection under quality assurance legislation, it will likely look at factors such as how the debrief was structured and what was discussed.

When a court considers whether the debrief information is protected by common law privilege, it likely looks to a now widely-recognized test established by the Supreme Court of Canada.6,7 The test, which applies across the country including Québec, considers the following: Was the communication or document created with the understanding it would be kept confidential? Is confidentiality essential to maintaining the relationship between those communicating? Does society benefit from this relationship and want to foster the relationship? Is the injury to the relationship caused by disclosure greater than the benefit of having the information available in the litigation?

Again, it is important to realize common law privilege is applied only on a case-by-case basis. There is no advance guarantee of protection.

Structuring debriefs to improve the likelihood of protection

To improve the chances that information discussed during debriefs may be protected, you should consider working with your colleagues and facility to implement steps such as the following:

  • Develop terms of reference and protocols for debriefing. Within these documents, clearly state that the debrief process is for quality improvement purposes and participants must keep all information discussed confidential.
  • Conduct debriefs in a setting that allows all information to be kept private.
  • Routine debriefs after each care episode are not usually documented. In those cases where information is collected, it should be gathered and compiled under confidential cover for purposes of quality improvement and access should be limited to those listed in the terms of reference and protocols under protection of quality assurance legislation.
  • Seek advice from hospital legal counsel, the CMPA, or both before disclosing or discussing any feedback on the care provided by individual healthcare practitioners to third parties, for example patients or their families.
  • Encourage hospital leadership or management to start a quality assurance review if a debrief identifies issues requiring significant changes to systems or processes. A quality assurance committee can examine the issues to identify areas for improvement and share its recommendations with leadership so appropriate changes can be made.

Although written reports are not typically generated from a debrief, any treatment recommendations made during the debrief about the patient’s ongoing care should be documented in the patient’s medical record. Such information about patient care will generally not be protected in this context.

An important part of the debrief is allowing participants to voice their emotions and reactions. A safe, respectful atmosphere is essential.2 In encouraging physicians and healthcare providers to speak openly and honestly, participants should also be reminded that debrief objectives do not include criticizing the care of any team member or assigning blame.

Critical, blaming comments set the wrong tone for the discussion and can potentially have significant negative consequences for the defence in a legal proceeding if the debrief does not qualify for common law privilege.

Debrief facilitator training can help encourage best practices.

Participating in Continuous Quality Improvement activities

The CMPA encourages physicians to participate in quality improvement activities that are created according to legislation protecting quality assurance records and information from disclosure. The Association understands that it is not always possible to have all quality assurance (QA) activities conducted by a formal and properly constituted quality assurance committee. The benefits often associated with participating in quality improvement activities focused on learning and improving systems outweigh the possible risks the information could be used or disclosed in subsequent legal proceedings.

The bottom line

  • Participate in debriefs that keep the medical-legal risks to a minimum by being properly structured and focused on learning.
  • If interested in establishing debriefs, talk with your colleagues, facility administration, and/or facility legal counsel about how to properly structure the process.
  • For questions about participating in debriefs, contact the CMPA.

 


 

References

  1. Canadian Medical Protective Association [Internet]. Ottawa (CA):CMPA; 2003.Disclosing harm from healthcare delivery: Open and honest communication with patients [cited 2019 April 29]. Available from: https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2015/disclosing-harm-from-healthcare-delivery-open-and-honest-communication-with-patients
  2. Gardner R. Introduction to debriefing. Semin Perinatol [Internet]. 2013 June [cited on 2019 April 29];37(3):166-74. Available from: https://www.ncbi.nlm.nih.gov/pubmed/23721773 doi: 10.1053/j.semperi.2013.02.008
  3. Arriaga AF, Sweeney RE, Clapp JT, et al. Failure to debrief after critical events in anesthesia is associated with failures in communication during the event [Internet]. Online first - Anesthesiology. 2019 March 1. Available from: https://anesthesiology.pubs.asahq.org/article.aspx?articleid=2727515 doi:10.1097/ALN.0000000000002649
  4. Aeby TC. Medical School Hotline, The Role of Morbidity and Mortality (M&M) Conferences in Medical Education. Hawaii Med J [Internet]. 2011 Feb [cited 2019 June 27];70(2):39-40. Available from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3071215/
  5. Calder LA, Edmund SH, Kwok MD, et al. Enhancing the Quality of Morbidity and Mortality Rounds: The Ottawa M&M Model. Acad Em Med [Internet]. 2014 [cited 2019 June 27]; 21:314-321. Available from: https://onlinelibrary.wiley.com/doi/pdf/10.1111/acem.12330
  6. Slavutych v Baker et al., [1976] 1 S.C.R. 254
  7. For example, see Steep v Scott, [2002]OJ No 4546 (SCJ)

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.