MELBOURNE, Australia, August 1, 2000 — Our high noon began on an ordinary morning at the Victorian Civil and Administrative Tribunal. As the day progressed, professors of medicine, senior clinicians, and hospital administrative brass joined their legal team in the battle field.
They were the top rung of Australia’s biggest and most influential health care provider, the $640 million-a-year Inner & Eastern Health Care Network. They had gathered to fight the release of documents which, if made public, would draw back slightly the veil of secrecy under which hospitals had operated for decades.
I was a member of The Age’s Insight team, which brought the action, and which was now represented in the hearing room by the newspaper’s barrister, a solicitor, an editorial executive and myself. Presiding over the battle was the Victorian Civil and Administrative Tribunal (VCAT) deputy president, Michael Macnamara. Within minutes of the hearing opening, he noted that The Age’s Freedom of Information request had had a “fairly tortuous history”.
Indeed. Thirteen months earlier, on June 29, 1998, a colleague from Insight, Julie-Ann Davies, and I had lodged FoI requests with five health care networks, seeking documents on adverse medical events, that is, mishaps in hospital care that actually injured patients.
It was now July 1999. We had been in and out of VCAT meetings, had attended conferences with network officials, had briefed lawyers and had honed our request. The Inner & Eastern group was the test case if we won our appeal against its refusal to release the documents, presumably the other networks would follow; but if we lost …
Our experience over almost two years with this request provides insights into what journalists can expect when undertaking complex, fishing-type Freedom of Information requests. Was it worth it? Below, I outline the frustrations and costs as well as the rewards.
How the investigation started
My interest in this type of data was sparked in the early 1990s when I read that a newspaper in the United States of America had published comparative hospital mortality rates. In 1993 I lodged a Freedom of Information request for similar information and the state Health Department provided me outside of the FoI process – with death rates for Victoria’s hospitals. Publication of these caused a storm of protest from hospitals and doctors, and the data has never been released since.
Then a 1995 study found that 16.6 per cent of hospital admissions suffered an adverse event, and that of those, 13.7 per cent resulted in permanent disability and 4.9 per cent in death.
Australia-wide this meant that 470,000 hospital admissions involved adverse outcomes for patients: 18,000 died, 50,000 suffered permanent disability and an extra 3.3 million bed days were required to care for those hurt by the very system designed to care for them.
And yet, 51 per cent of adverse events were judged to be highly preventable.
The study was conducted by researchers from the University of Adelaide and the University of Newcastle as part of a professional indemnity review.
Doctors’ lobby groups were upset when the key findings were tabled in Parliament by the then Health Minister, Dr Carmen Lawrence, in June, 1995 – months before they were due to be published in the Medical Journal of Australia. But Dr Lawrence said the findings were “sufficiently stark” to warrant immediate action and formed a taskforce to report on how to reduce preventable adverse events. It was given six months to report.
However, action on the findings was excruciatingly slow. Several committees produced reports but it was not until earlier this year that a national body formed to develop a system of hospital data collection met for the first time.
It was partly my earlier interest, and partly the delays and lack of action by governments and the staggering death and injury figures, that persuaded us to try to bring things to a head. We lodged FoI requests with Victoria’s six health care networks.
We were not interested in the names of doctors or patients and specifically excluded them from our request. And while the network’s eminent witnesses were at pains to describe the destructive effects that release of the information would have on doctor peer review and incident and death audits, we hadn’t sought these either.
We wanted aggregated, anonymous figures normally compiled by administrative staff and clerks – that would enable us to compare hospitals for things like infection rates, falls by patients, medication errors, needle stick injuries and so on.
Further, by seeking the minutes of infection control and quality committee meetings, we wanted to know how hospitals dealt with mistakes, and the steps they took to ensure they did not happen again.
We knew the request would ruffle feathers such information had never been released and hospitals and the medical profession were notoriously secretive about such issues. More than anything, we were challenging a culture.
We also sought information on hospital budgets and the outsourcing of services to the private sector, and these were dealt with separately to the adverse events issue.
The reaction to our FOI request
At the time, the Inner & Eastern Health Care Network had both power and influence. Its hospitals included the Alfred, Box Hill, Maroondah, Peter MacCallum Cancer Institute and the Eye and Ear Hospital which with others admitted more than 150,000 patients a year. The group’s annual operating budget was about $640 million and it employed more than 15,000 staff.
Its board was chaired by Melbourne powerbroker Graeme Samuel and some of its senior executives were strong supporters of the Kennett Government’s policies.
Leaked memorandums soon acquainted us with the realities of FoI. Two weeks after the request was sent to the networks, an adviser to the then Health Minister, Rob Knowles, emailed network public relations staff about the matter.
“I expect that all networks would have received an FoI from The Age,” wrote the adviser, Andrew Goodsall. “For consistency of approach, I have asked the FoI people here to take a look at it, and there appears to be a range of concerns.”
Goodsall then listed the concerns, suggesting the request was actually three separate requests and should be returned and asked to be resubmitted “with 3 payments due”. He also suggested that section 139 of the Health Services Act “may be a good starting point”, adding that “it may be necessary to protect names”.
In a second email five days later, Goodsall again suggested that the FoI officers ask The Age to resubmit the request as three separate ones, and advised them to clarify “which documents precisely are sought and that it is likely given the current scope of each request that it will be necessary to levy a charge.”
Not surprisingly, the networks initially cited section 139 of the Health Services Act in their refusals to release any information. A typical response was: “These meetings (about adverse events) are covered by section 139 of the Health Services Act and, as such, confidential information is not available under the Freedom of Information Act.”
Lawyers for several of the networks declared: “S. 139 prevails over any other act or law if there is any inconsistency.”
End of story, or so it seemed back in late 1998. This section of the Health Services Act prohibits information generated in a specified committee such as a hospital quality committee – from being communicated to anyone not involved in the committee’s work.
Our lawyers countered that the section provided immunity only to the names and identities of those mentioned in the reports not the data itself.
The networks also used two exemptions under the Freedom of Information Act to deny release of the data. Section 35(1)(b) exempted material obtained in confidence, and section 30 (1) protected material involved in deliberative processes, and under another subsection, would be contrary to the public interest.
The courtroom battle
High noon turned out to be an at times nasty battle between the nimble and eloquent Mark Dreyfus, QC, for The Age, and the aggressive questioning of Trevor McLean, barrister for the Inner & Eastern Health Care Network.
Over three days the network called a dozen witnesses. We had two: the dean of health sciences at La Trobe University, Professor Stephen Duckett, and myself.
One of the network’s first witnesses was Dr Michael Coglin, a former director of medical services at the Alfred. He estimated that 26,770 adverse events occurred at the hospital over the period covered in the request, July 1995 to January 1999.
In a taste of things to come, Coglin estimated it would take 26,875 hours to process the request and that staff would have to be specially trained. It would take 16 people working on it full time a year to process. The cost would be about $840,000.
Asked about the response of clinicians to the release of any information provided by them, Coglin referred to the regular death audits conducted by the division of medicine at the Alfred.
“...(At) the last of my meetings before leaving the Alfred I briefed the meeting and its members on … the application by The Age for documents and the desire by The Age to seek access to records such as the proceedings of this committee and the possibility at least that at the hands of the tribunal those documents may be disclosed.
“The instant response from the first person to speak sitting on my left, a professor of medicine, was to say that until such time as this matter was resolved to his satisfaction, his unit would not be filling out these (death audit) forms any more and not contributing to the review process. His sentiments were subsequently echoed by others at the meeting and in general debate and dialogue around the hospital in the ensuing weeks regarding this matter. This was the widespread reaction.”
Further, Dr Coglin argued the lay public would have difficulty understanding the information, there were statistical problems with it, release would be contrary to public interest and it would damage the reputation of hospitals.
And that as well as attacks on Professor Duckett was pretty much the basis of the evidence that would be provided by the network’s witnesses, the cream of Melbourne’s medical profession. In essence they said the system of reviewing mistakes made by doctors might collapse if exposed to public scrutiny.
The Age’s case relied on public interest arguments that public scrutiny was crucial to holding hospitals to account, that they were taxpayer-funded bodies that should be open, and that consumers’ rights would be advanced by knowing more about what occurred in hospitals.
Macnamara’s finding did the near-impossible and more or less satisfied both groups. In summary, he found that public interest required the information to be released. However, he determined that the public interest in retaining quality assurance programs in hospitals overrode the public interest of disclosure.
In effect, this meant that documents generated by administrators, clerks and non-medical staff could be released, with deletions of names, but material directly from doctors should remain secret. The Age would get the minutes of committees dealing with infection control, adverse drug events, quality, patient safety, as well as performance indicators for things like infections after surgery, falls, waiting times, cancellation of operations and lots more – some obscure, some valuable.
Macnamara noted that all “of the large number of distinguished clinicians and administrators” from the network believed that section 139 of the Health Care Services Act provided statutory immunity to quality deliberations. However he determined the section protected only information that identified individuals.
He also said “members of the medical establishment are given to excessively pessimistic views” about the effect of releasing hospital performance indicators:
“There seems to be very good reason to accept that clinicians whether they be medical practitioners, nurses or allied professionals would not be forthcoming with information which would show them as individuals in a bad light. I cannot accept however that release of aggregated data, no matter how far divorced from disclosure by individual clinicians of individual incidents relative to individual patients will have the alleged adverse effect.”
He was sceptical that apprehension about the data being misunderstood or misused would go beyond mere annoyance to the withdrawal of data collection.
His decision, delivered in August 1999, opened the door to a trickle of documents that became a torrent. The Southern Health Care Network, which had relied solely on section 139 provided boxes of documents. Eventually the Austin which initially said it had only seven documents and operated under a vague verbal system handed over a small pile. No-one has counted the pages there are thousands of them but the material takes up a significant part of my study at home. The last lot arrived in May 2000 almost two years after the initial request.
What the FOI documents showed
It soon became apparent that meaningful comparisons of hospitals would be impossible. Gaps and inconsistency in performance indicator data showed that some hospitals did much better than others in compiling the information. It appeared they pretty much did their own thing, with quality assurance sometimes low on their list of priorities. The budget cuts of the Kennett era, made survival the top priority. Little room then for resources devoted to collecting and compiling figures on mishaps.
The best material was in the minutes of hospital committee meetings and reports to those committees. By tracking the monthly reports, I could see how, say, an infection control committee dealt with an outbreak of golden staph or some other crisis.
Of course, the documents were only a starting point: the data had to be followed up with interviews and further research. The FOI material formed the basis of Insight’s “Fatal Care” series, run in The Sunday Age. The series produced five front-page stories and numerous features between November and June, and put Victoria’s public hospital system under the most intense public scrutiny it has experienced.
Outcomes of The Sunday Age coverage
Our series sparked two government inquiries.
The first was ordered by the State Government after we revealed that at least 33 babies in the neonatal intensive care unit at Monash Medical Centre had become infected with golden staph. As well, three heart surgery patients had died from infections in the sternum and the hospital’s cardiothoracic unit had one of the highest infection rates in the state.
Confronted with this information, the hospital’s director of infectious disease, Professor Lindsay Grayson, conceded, “There is no avoiding the fact the rates here were completely unacceptable”.
The Health Minister, John Thwaites, immediately asked the Health Services Commissioner to inquire and a report is expected later this year.
The second inquiry was ordered by the Commonwealth Health Department two months ago after we reported that Australian hospitals were ignoring so-called safety syringes despite them being made mandatory in an increasing number of states in the United States. Our investigation found that more than 1000 Victorian nurses and doctors risked HIV or hepatitis through pricks with syringes each year, but hospitals were not using retractable needles due to their cost. The inquiry was asked to examine the effectiveness and cost of safety needles.
The first page one lead in the series was based partly on the frustration we experienced in trying to get the documents and the experiences of relatives trying to access patient files.
It began: “Medical blunders resulting in death and permanent injury are being covered up by a culture of secrecy that is deeply embedded in many of Victoria’s leading public hospitals.
“Some hospitals, fearing costly litigation, put protection of their reputations ahead of their duty to inform patients or their families of mistakes.”
Inside, over two pages, we documented the long and difficult battles that families who had suffered from adverse events and hospital deaths faced in trying to find out what had gone wrong. Almost every case and others since showed that the culture of secrecy was, to use medical jargon, endemic in hospitals.
This prompted a number of calls from patients and relatives with more horror stories. One call that proved particularly helpful resulted in our receiving a new batch of documents which showed that the Alfred Hospital had continued using potentially dangerous medical equipment despite a patient dying and others suffering complications during cardiac procedures.
While the old equipment finally was replaced, the documents showed how tight budgets impacted directly on patient care. A memo from the head of the unit involved said: “Today we had a patient death in the cardiac catheterisation laboratory. The attempt to resuscitate the patient was severely compromised by the antiquated nature of our equipment, which interferes with patient access and manoeuvrability.”
We further highlighted the issue of old or faulty equipment with two case studies, including one from the Coroner’s files.
Questions about hospital deaths prompted the State Government to announce the establishment of a quality council to ensure that Coroner’s findings were implemented.
The series also set the climate in which the new Labor Government could announce in July this year that public hospitals would be forced to make public their infection rates, and that annual ‘report cards’ showing a range of performance indicators would be published. This followed a report by Professor Duckett, our witness at the VCAT battle field.
The series, I believe, had two important impacts that made the introduction of Professor Duckett’s recommendations politically feasible. First it highlighted the secrecy, lack of accountability and arrogance of some hospitals and the frustration of patients trying to access information.
Secondly, our FoI and the ongoing stories so dismayed hospital executives and doctors that I think many of them decided it was better to be inside the tent, and, to some extent, control the information streaming out.
Our FoI case was the first judicial test of section 139 and resulted in the opening of access to hospital documents to consumers.
The high cost of investigative reporting
On the flip side, the FoI applications cost The Age about $80,000 in legal fees. It took us many hours of negotiation, legal proceedings and sorting through the documents. The costs can and should be questioned. Over the same period, I could have been working for the news desk, producing daily or weekly stories.
My view is that organisations like The Age should continue with this type of journalism, difficult and time-consuming though it is.
Freedom of Information laws, battered and watered down as they are, provided a key bent and rusty and ill-fitting, but nevertheless still a key to documents that were not accessible any other way. In pursuing the hospital documents, The Age gave us time and discretion and money. We dealt directly with our lawyers, Minter Ellison, in deciding how to tackle the many legal obstacles the networks threw up.
The resources required mean that only a handful of media organisations undertake such investigative projects. Yet they serve to differentiate serious newspapers from other media, provide a public benefit through intense scrutiny, and produce enduring journalism which in today’s 24-hour news cycle has become something of an oxymoron.
Finally, having reporters who are dedicated to longer-term investigations says something about a newspaper or radio or TV station. Investigative reporting, I think, is one antidote to what Bill Kovach and Tom Rosenstiel have labelled the journalism of assertion, which they see as replacing the journalism of verification.
In their book, Warp Speed, they describe the culture of assertion as one which is less interested in substantiating whether something is true and more interested in getting it into the public discussion. The press then becomes a conduit of politics as cultural civil war.
“Those who fare best in this new culture, at least in classic journalistic terms, are those who do their own research,” they say. “These news outlets are governed by their own internal standards because they are having to make their own judgments about when a story is verified, what is true, and what is relevant. They are less susceptible to repeating others’ mistakes, and they are most careful about accuracy because they bear sole and original responsibility.
“In a world with growing choices, and one where the depth of information is potentially infinite for every user, the highest value may be given to the source whose information is most accurate, most dependable, and most efficient to use.”