Health Services (Quality Improvement) Act 1994

The Act centres on four interrelated concepts. Committee is defined as a committee that has been declared, or is taken to have been declared, an approved quality improvement committee under section 7(1) (s.6). This includes mortality committees deemed approved under section 14. A governing body is the person or body with general direction, control and overall responsibility for the operations of a health service or for an association, society, college, faculty or other body of professionals who provide a health service (s.6). This is the entity that establishes the committee, receives its reports and recommendations, and bears the indemnity obligation under section 12(3). Health service is defined very broadly to cover any medical, hospital, ambulance, paramedical, dental, pharmaceutical, mental health, nursing home, palliative care, community health or environmental health service, plus any service relating to or associated with those services, and any other service relating to the maintenance or improvement of health, restoration to health, or prevention of disease or injury (s.6). This expansive definition means the Act can apply to a wide range of clinical and non clinical review activities. Approved quality improvement committee status is obtained by ministerial declaration published in the Gazette, specifying a period not exceeding three years (s.7(1)). The Minister must be satisfied of five matters before declaring a committee: the committee is established in accordance with the rules or official procedures of the governing body; each member has training and experience appropriate to the services assessed and evaluated; the committee’s functions include assessment and evaluation of quality of health services (including review of clinical practices), reporting and making recommendations to the governing body, and monitoring implementation of those recommendations; the performance of those functions would be facilitated by the immunities and protections of the Act; and it is in the public interest to restrict disclosure of information compiled by the committee (s.7(2)). The final requirement - public interest in restricting disclosure - is the gateway to the entire protective regime. It forces a case by case assessment by the Minister of whether confidentiality outweighs transparency. The Act imposes two restrictions on committees: they must have regard to the rules of natural justice in so far as they are relevant (s.8(1)), and reports and information must not disclose the identity of any provider or recipient of a health service unless that individual has given written consent (s.8(2)). The protective provisions are not infinite: they apply only to information acquired solely as a result of the committee’s functions (ss.9(1), 10(1)), and documents created by or at the request of the committee or solely for the performance of its functions (s.10(1a)). Information or documents that also exist independently outside the committee’s work are not protected. The protections survive if a committee ceases to be approved: sections 9, 10, 11 and 12 continue to apply to past information and actions as if the committee were still approved (s.13). For mortality committees, the whole Act (except sections 7, 13 and regulations dealing with committee procedure and public information) applies automatically, with the Minister standing in as the governing body and reports under the Health (Miscellaneous Provisions) Act 1911 treated as reports to the governing body (s.14). This gives perpetual deemed approval to the Maternal, Perinatal and Infant, and Anaesthetic Mortality Committees without any time limit or ongoing ministerial oversight.

The Act directly affects a number of parties. Governing bodies - typically hospital boards, health service operators, professional colleges and associations - that wish to establish a quality improvement committee must apply to the Minister for a declaration and satisfy the conditions in section 7(2). They bear the indemnity obligation under section 12(3), which means they must cover legal costs incurred by committee members in defending proceedings against which the Act protects them. This creates a direct financial cost for governing bodies, especially in public health services where the governing body is the State. Members of approved committees receive immunity from personal liability for acts done in good faith (s.12(1)) and are entitled to indemnity from the governing body (s.12(3)). They are also bound by the confidentiality obligations in section 9, which prohibits them from disclosing information acquired solely through the committee’s work except for committee purposes, reporting to the governing body, under ministerial standards, or with consent. Breach carries a $5,000 penalty. Other persons who acquire information solely due to the committee’s functions - such as administrative staff, transcription services, external reviewers, or witnesses giving information to the committee - are also caught by the confidentiality obligation (s.9(1a) extends to indirect acquisition). They too cannot be compelled to disclose that information in civil proceedings (s.10(1)). Health service providers who are the subject of review have their identity protected from disclosure in reports without their consent (s.8(2)). They also cannot be compelled to give evidence about committee information, but they may be affected by findings or recommendations that are not admissible to prove carelessness (s.11). Patients and other recipients of health services are the intended beneficiaries of improved quality, but they also bear the cost of the confidentiality regime: information about adverse events that is acquired solely by the committee cannot be used in civil proceedings to prove negligence or inadequate care. Their identity is also protected without consent. Courts and tribunals are affected because documents created by or for the committee are not discoverable and cannot be used in evidence in civil proceedings (s.10(1a)), and committee findings are not admissible as evidence of carelessness (s.11). This removes a potential source of evidence from civil litigation, including medical negligence cases. The Minister has gatekeeping powers: approving committees, setting standards for public disclosure of anonymised information (s.9(2)), and receiving reports from committees if regulations require (s.15(c)). Mortality committees are automatically covered without ministerial approval, so the families of deceased patients and the healthcare providers involved in those cases are affected by the same protections. The public has limited access to committee information. The Minister may set standards for making anonymised information available to the public or a section of the public (s.9(1)(b), (2)), but there is no automatic right of access. The Act overrides the Freedom of Information Act 1992 (s.5(1)), so FOI requests for committee documents would be refused.

The Act imposes several duties. Committees must have regard to the rules of natural justice in so far as they are relevant to performance of their functions (s.8(1)). This duty is intentionally qualified - “in so far as they are relevant” - which allows committees some discretion to depart from procedural fairness standards where the nature of the review (such as a confidential quality assessment) makes strict compliance impractical. Committees also must not disclose the identity of any provider or recipient of a health service in their reports or information unless the individual gives written consent (s.8(2)). This duty is absolute: it applies “whether expressly or by implication”. Any person who acquires information solely as a result of the committee’s functions (whether directly or indirectly) must not make a record of, divulge or communicate that information except: for the purposes of performing the committee’s functions; for furnishing reports to the governing body; in accordance with any standards established by the Minister for making anonymised information available to the public; or with the written consent of the person to whom the information relates (s.9(1)). This creates a criminal prohibition with a penalty of $5,000. The duty applies to a wide class beyond committee members, including anyone who indirectly receives such information (s.9(1a)). The Minister may determine and publish standards for making committee information available to the public or a section of the public (s.9(2)), but there is no duty to do so. The Act also permits the Governor to make regulations prescribing committee procedure, permitting or requiring public disclosure of specified information, and permitting or requiring committees to furnish reports to the Minister and governing bodies (s.15).

The Act confers several important rights and protections. Persons who acquire information solely from the committee’s work are neither competent nor compellable in civil proceedings to divulge or communicate that information to any court, tribunal, board or person (s.10(1)). This is a broad prohibition on being forced to testify about committee activities. Documents created by or at the request of the committee, or solely for the performance of its functions, are not subject to discovery and cannot be used in evidence in civil proceedings unless the document has been made available to the public or given to the Minister or the governing body (s.10(1a)). This effectively creates a form of privilege for committee working papers, reports and records, though the exception allows waiver if the governing body or Minister releases the document. Findings or recommendations by a committee about the need for changes or improvements are not admissible as evidence that the procedure or practice was careless or inadequate (s.11). This prevents parties in litigation from using committee conclusions as admissions of negligence, but does not prevent the underlying facts from being proved through other evidence. Committee members and others acting in good faith for the purposes of the committee’s functions are protected from personal liability for their acts (s.12(1)). They are also entitled to be indemnified by the governing body for costs incurred in defending proceedings from which they are protected (s.12(3)). This right of indemnity is a statutory entitlement, not merely a permissive power, meaning the governing body must pay regardless of any policy or agreement. Mortality committees are given all the same protections without needing ministerial approval, and the Minister is deemed their governing body for the purpose of receiving reports (s.14(1)). Past protections survive if a committee ceases to be approved: sections 9, 10, 11 and 12 continue to apply to information, documents, findings and actions from the period when it was approved (s.13).

The Act creates only one specific offence: a person who makes a record of, or divulges or communicates, information acquired solely as a result of a committee’s functions, in contravention of section 9(1), is liable to a penalty of $5,000. This is a modest fine by current standards (unchanged since 1994), and it applies to each unlawful disclosure. The offence appears to be a simple offence (not an indictable offence), and would likely be prosecuted summarily. Enforcement would fall to the police or possibly the Director of Public Prosecutions, but in practice complaints about breaches might come from the governing body or committee members who discover a leak. The $5,000 maximum penalty is low enough that it may not deter deliberate disclosure by those who consider the public interest in exposing unsafe practices to outweigh the statutory prohibition. The Act does not provide for any civil remedies for breach of confidentiality, such as damages or injunctions, but the general law (breach of confidence) may still apply. The immunity provisions in section 12(1) remove personal liability for committee members and others acting in good faith, but that immunity itself is a defence, not a penalty. If a person acts in bad faith, the immunity does not apply and they may be liable in tort (e.g. defamation, negligence). The Act gives no guidance on how bad faith is to be determined. The natural justice requirement in section 8(1) is not backed by any direct penalty; a committee that fails to observe natural justice may lose the protections of the Act if a court finds that its actions were not in good faith or that the information was not acquired solely for committee functions. However, the Act does not expressly strip protections for breach of natural justice. The governing body’s obligation under section 12(3) to indemnify committee members is enforceable as a statutory right; if the governing body refuses to pay, the member could sue for the indemnity. The regulations (s.15) could create additional offences for failure to comply with procedural rules, but none are evident in the current text.

Section 5(1) states that the Act has effect despite the Freedom of Information Act 1992. This means that documents held by a governing body that are created by or for an approved quality improvement committee are exempt from FOI access requests, regardless of any other exemption in the FOI Act. Section 5(2) provides that if there is an inconsistency between a provision of this Act and a provision of any other written law, the provision of this Act prevails to the extent of the inconsistency. This gives the Act a broad supremacy over all state legislation, including court rules about discovery and evidence. Section 10(1a) overrides the usual rules of civil procedure by making committee documents not discoverable and inadmissible. This interacts with the Evidence Act (WA) and the rules of court; the Act operates as a specific exception. The exception in section 10(2) allows the protections to be overridden if the document has been made available to the public or given to the Minister or governing body - in effect, once the committee’s work is no longer confidential, the ordinary rules of evidence and discovery apply. Section 10(2)(b) also permits evidence to be given in proceedings about an act or omission by the committee or a member as a member, so the committee can still be held to account for its own conduct. Section 14(4) provides that the application of the Act to mortality committees does not limit the effect and operation of Parts XIIIA, XIIIB and XIIIC of the Health (Miscellaneous Provisions) Act 1911. Those Parts establish the mortality committees and their functions; this Act adds additional protections but does not replace those provisions. The Act does not interact with the Health Practitioner Regulation National Law (WA) or professional disciplinary proceedings in any explicit way. Disciplinary bodies (such as the Medical Board) are not courts, so the civil proceedings limitation in section 10(1) and (1a) may not apply to them - “court, tribunal, board or person” is broad enough to include a disciplinary tribunal, but the definition of “civil proceedings” might exclude disciplinary hearings. The Act also interacts with defamation law: section 12(1) protects committee members from personal liability for statements made in good faith, but that protection is limited. The note in the compilation table records that section 354 of the Criminal Code (which dealt with defamation) was deleted by the Defamation Act 2005; that deletion does not affect this Act, but it underscores that the protection here is civil, not criminal. The common law defence of qualified privilege may also apply to committee communications.

The original Act was assented to on 20 December 1994 as Act No. 80 of 1994. Sections 1 and 2 commenced on assent; the remainder commenced on 6 September 1995 by proclamation published in the Gazette on 5 September 1995. The Act was first reprinted as at 12 December 2003. The first substantive amendments came via the Health Legislation Amendment Act 2004 (No. 61 of 2004), Part 3, which commenced on 24 November 2004. That Act amended sections 9, 10 and 12. In section 9, the penalty for unlawful disclosure was originally missing from the printed text? The current version shows penalty $5,000 inserted by that amendment? Actually the table shows s.9 amended by No. 61 of 2004 s.8. Similarly s.10 was amended by s.9 and s.12 was amended by s.10. The amendments likely inserted the penalty amount and clarified the indirect acquisition provision (s.9(1a)) and the document non-discoverability provision (s.10(1a)). The original section 12(2) was deleted by the 2004 amendment; its content is unknown but was presumably considered unnecessary or redundant. A second reprint was done as at 4 November 2011 (incorporating those amendments). The next change came from the Statutes (Repeals and Minor Amendments) Act 2014 (No. 17 of 2014), section 24, which further amended section 12 on 6 September 2014. The nature of that amendment is not stated, but it may have adjusted the indemnity provision or removed outdated references. Finally, the Public Health (Consequential Provisions) Act 2016 (No. 19 of 2016), section 101, amended section 14 on 24 January 2017, likely updating references to the repeal of the Health Act 1911 and its replacement by the Public Health Act 2016. The mortality committees remain constituted under Parts XIIIA, XIIIB and XIIIC of the Health (Miscellaneous Provisions) Act 1911, which was not repealed by that consequential act. No other amendments have been made. The Act remains in its current form as a compilation.

The source text (the Act as provided) does not include any references to court decisions, case notes, or litigation history. The compilation table records amendments but does not mention any judicial interpretation. The footnote about the deletion of section 354 of the Criminal Code by the Defamation Act 2005 is not part of the Act itself and does not indicate litigation under this Act. Given the Act’s purpose of shielding quality reviews from legal discovery, it is plausible that the protective provisions have been tested in civil proceedings, but no such cases are noted in the available source. The absence of reported litigation could mean the Act has operated without significant challenge, or that settlements have kept disputes out of the public record. The broad immunity and non-discoverability provisions would make it difficult for a litigant to obtain committee material to challenge the protections, so a direct challenge to the Act’s provisions might only arise in a case where a party seeks to argue that a document falls outside the definition of “created solely for the performance of a Committee’s functions” or that the committee was not properly approved. The power to amend or revoke a declaration (s.7(1)) could be judicially reviewed if exercised improperly. The natural justice requirement (s.8(1)) could also give rise to challenge if a committee’s process was unfair. However, no such challenges appear in the provided material. The legal community in Western Australia therefore operates on the understanding that the Act’s protections are robust and have not been significantly eroded by the courts.

Several features of the Act can trap unwary parties. The “solely as a result” limitation in sections 9(1) and 10(1) is critical. Information that a person already knew from other sources, or that was also obtained independently of the committee, is not protected and can be disclosed or compelled. A committee member who also treated the patient may have information that came from clinical notes, not solely from the committee; that information is not covered. Similarly, documents that exist independently of the committee (e.g., original medical records) are not protected by section 10(1a) even if they are handed to the committee. The indirect acquisition trap in section 9(1a) makes it clear that a person who receives information indirectly (e.g., via a summary or oral report) is still bound by the confidentiality obligation. A hospital administrator who sees a committee report left on a printer is caught, even though they never attended a meeting. The $5,000 penalty is not indexed and has not changed since 1994. It is a relatively small amount, especially for an organisation or professional, and may not deter a determined whistleblower. However, breaching confidentiality could also lead to civil liability for breach of confidence or breach of contract, which is not limited by the Act. The natural justice requirement (s.8(1)) is qualified - “in so far as they are relevant”. Committees may be tempted to cut procedural corners, but a court could later find that natural justice was relevant and its breach removes the good faith protection under section 12(1). The identity protection in section 8(2) is absolute and covers implicit identification. A committee report that reveals enough detail for colleagues to guess the patient or clinician involved breaches this section, even without naming names. The public interest test for ministerial approval (s.7(2)(e)) is a double edged sword. The Minister must be satisfied it is in the public interest to restrict disclosure. If the Minister is not satisfied, the committee cannot be approved and receives no protections. But if approved, the very fact of approval means the Minister has certified that restricting disclosure serves the public interest, which may be argued against any later FOI or court application. Documents given to the governing body lose some protection. Section 10(1a) exempts documents that have been given to the Minister or governing body from the non-discoverability and non-evidence rules. So once a committee report is sent to the governing body, it becomes potentially discoverable and admissible in civil proceedings. Governing bodies should be aware that reading and retaining committee reports may create a litigation risk. Mortality committees are perpetual and not subject to the three year approval limit. They also have the Minister as their governing body, meaning the Minister (through the Department of Health) bears the indemnity obligation and receives reports. The Act does not provide for patient access or any right to know about committee findings. A patient harmed by a clinical incident may never discover what the committee found, and that finding is inadmissible anyway. This creates a significant information asymmetry between patients and health services. Regulations could change the landscape. Section 15 permits regulations requiring committees to make specified information available to the public or to furnish reports to the Minister. Any future regulations could drastically alter the confidentiality regime, but until then the default is maximum protection.

For a governing body seeking to establish an approved quality improvement committee, compliance begins before the committee starts work. First, the committee must be established in accordance with the governing body’s own rules or official procedures (s.7(2)(a)). That means having written terms of reference, a formal resolution, and due appointment of members. Second, each member must have training and experience appropriate to the services to be assessed (s.7(2)(b)). The governing body should document members’ qualifications and experience. Third, the committee’s functions must include assessment and evaluation of the quality of health services (including review of clinical practices), reporting and making recommendations to the governing body, and monitoring implementation of those recommendations (s.7(2)(c)). These functions should be expressly stated in the terms of reference. Fourth, the governing body must satisfy the Minister that the performance of those functions would be facilitated by the immunities and protections (s.7(2)(d)) - essentially, that without the protections the committee could not function effectively because members would fear liability or disclosure. Fifth, the governing body must satisfy the Minister that it is in the public interest to restrict disclosure of the committee’s information (s.7(2)(e)). This requires a reasoned justification: what harm would come from disclosure, and what public benefit flows from confidentiality? The governing body should prepare a submission addressing each criterion before seeking the ministerial declaration.

Once the committee is declared, the governing body must ensure the committee has regard to natural justice so far as relevant (s.8(1)). This may involve giving affected persons an opportunity to respond to criticisms, but the degree of process depends on the context. The committee must not disclose the identity of any provider or recipient of a health service in its reports without that person’s written consent (s.8(2)). All reports and information should be anonymised before dissemination. The committee and anyone who acquires information solely from the committee’s work must treat that information as confidential and only use it for the committee’s purposes, for reports to the governing body, or as permitted by ministerial standards or with consent (s.9). The governing body should have a confidentiality policy and require all committee members, observers, and administrative staff to sign acknowledgments. Training on the scope of section 9 is advisable, especially the indirect acquisition trap. The governing body should also be aware that documents given to it may lose evidentiary protection (s.10(1a)). Therefore, it may choose to receive oral reports rather than written ones, or to store committee documents separately with strict access controls. The indemnity obligation under section 12(3) means the governing body should budget for potential legal costs and have insurance coverage or a self-insurance reserve. Committee members should be given written confirmation of the indemnity. The three year approval period (s.7(1)) means the governing body must apply for renewal before expiry or the protections will lapse for future actions. The Act allows amendment or revocation of the declaration at any time (s.7(1)), so the governing body should maintain compliance to avoid revocation. If the committee ceases to be approved, the governing body must continue to protect past information under section 13. For mortality committees, no application is needed, but the governing body (effectively the Minister) must still comply with all the other requirements. Regular audits of committee processes and documentation practices are recommended to ensure ongoing compliance and to demonstrate good faith if challenged.