GEATROS J. 1996 S. N. No. 105001 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PROVINCE OF NOVA SCOTIA FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT SUBSECTION 41(1) IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT S.N.S. 1993, C. ERRATUM TO DECISION HEARD: At Sydney, Nova Scotia, before the Honourable Justice A. David MacAdam, on June 27, 28, 1996 and July 8, 1996 DECISION: August 1, 1996 COUNSEL: Brian W. Downie James L. Chipman for the Appellants Sandra MacPherson-Duncan, for the Medical Society Gary Corsano Nichole Collier, for Cape Breton Regional Hospital Blaise MacDonald for the Respondents ERRATUM Page 50, line 6, and line where it reads "personal" should read "personnel". Page 52 paragraph 2, line 12 where it reads "personal" should read "personnel". Halifax, Nova Scotia November 14, 1996 1996 S. N. No. 105001 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PROVINCE OF NOVA SCOTIA FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT SUBSECTION 41(1) IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT S.N.S. 1993, C. HEARD: At Sydney, Nova Scotia, before the Honourable Justice A. David MacAdam, on June 27, 28, 1996 and July 8, 1996 DECISION: July 9, 1996 Orally RELEASE OF ORAL: August 9, 1996 COUNSEL: Brian W. Downie James L. Chipman for the Appellants Sandra MacPherson-Duncan, for the Medical Society Gary Corsano Nichole Collier, for Cape Breton Regional Hospital Blaise MacDonald for the Respondents MacAdam, J. In these reasons, the families of Ronnie White, Marion Godin, and Theron Cormier are individually referred to as the "White family," the "Godin family," and the "Cormier family", respectively, and collectively, as the "families"; the appellants, Doctor B. Foley, Doctor S. Hasan, Doctor P. Jackson, Doctor M. Malik, Doctor S. Sharma, and Doctor J. Wesolkowski are referred to as the "appellants"; Doctor Stan P. Kutcher and Doctor Vivik Kusumakar are referred to as the "authors" in respect to report dated February the 7th, 1996; the Cape Breton Regional Hospital is referred to as the "Regional Hospital"; the Medical Society of Nova Scotia is referred to as the "Intervenors". Background Between June and November 1995 member of each of the three families was found dead, apparently at their own hand. During this period, members of the staff of the Regional Hospital met with each of the families. Ms. MacIsaac, Chief Executive Officer (C.E.O.) of the Regional Hospital, testified to meeting on November 23rd, 1995, attended by some of the hospital staff with the Cormier family, during which it was evident the family were not satisfied by the answers they were receiving and were requesting an external review of the circumstances surrounding the death of Mr. Cormier. On November 26th, 1995, there were also meetings of hospital staff with the "White Family" and separately with the "Godin family" who also expressed dissatisfaction with the answers they were receiving. As result, on November 27th, decision was made to review the circumstances of all three deaths. Following telephone conferences with Doctor Kutcher, Ms. MacIsaac, on December 1st, 1995, wrote to him: "In these cases the individuals were receiving care within the Mental Health System and Drug Dependency. In two cases, the individuals were receiving services for many years, the third person for year. The nature of the family complaints in these cases seem to be directed at the psychiatrists involved and their management of the cases. For our purposes, we would request review that would involve patient records, policies and practices, interviews with physicians and staff involved and interviews with family of the deceased patients." Doctor Kutcher, by letter dated December 4th, 1995, responded outlining his understanding of the mandate, stating it was to be review of cases of three individuals who had suicided and who were receiving care within the Mental Health System and Drug Dependency. He noted they would be considering the actions, roles, and responsibilities of the deceased patients/clients, hospital staff, physicians, families of the deceased, and would be reviewing and assessing the nature and adequacy of patient records, hospital policies and practices as they related to the cases. Ms. MacIsaac, in confirming Doctor Kutcher's understanding of the mandate, by further letter, dated December 11th, 1995, also included summary of Terms of Reference prepared in respect to the proposed review: 1) Review the cases of three individuals who have suicided and who were receiving care within the Mental Health System and Drug Dependency. 2) To review the roles and responsibilities of individuals involved in the cases, i.e., hospital staff, physicians, families. 3) To review patient records and hospital policies and practices as they relate to these cases. 4) To provide written report of the review to the hospital's C.E.O. Ms. MacIsaac testified that around December 19th, 1995, she polled the executive committee of the Board of the Regional Hospital, for the purpose of establishing hospital committee, in accordance with s. 60 of the Evidence Act, R.N.S. c.154, to deal with the matter of the review. It is the formation of this committee that was subsequently ratified by motion of the executive committee at meeting on January 12th, 1996. She testified the purpose in establishing this committee was to invoke s. 60 of the Evidence Act and the committee was to include herself, the authors, and other staff members. In or about mid-December, 1995, the appellants, being physicians with privileges at the Regional Hospital, were approached by Ms. MacIsaac to participate in the review. The Regional Hospital, through Ms. MacIsaac, assured them confidentiality would be honoured. They were told the authors were preparing report for the purpose of internal evaluation, education and improvement of hospital care and practices. The appellants were consequently assured the report would be used as an internal document only, thus ensuring the confidentiality of their participation in the process. The authors attended in Sydney on December 19th and 20th, 1995, and in addition to meeting with Ms. MacIsaac, conducted interviews with the appellants, the families, and other staff of the Regional Hospital, for the purpose of completing their investigation and compiling their report. Prior to conducting the interviews, the authors met with hospital administrative group consisting of Ms. MacIsaac, Ms. Richard, Chief of Patient Services, Doctor Jackson, Medical Director of the Regional Hospital, and Doctor Sharma, Medical Director of the Department of Psychology. Following this initial meeting, the authors proceeded to complete the interviews. number of the appellants individually participated in interviews with the authors and apparently communicated confidential information about their patients and provided analysis and criticisms about their colleagues and themselves. Once the authors completed their information-gathering, they compiled report which was then forwarded to the Regional Hospital to the attention of Ms. MacIsaac. Consistent with the assurances it had earlier provided to its senior staff, the Regional Hospital declined to release the report. On January 29, 1996, Robert Chisholm, M.L.A., made application to the Department of Health, of the Province of Nova Scotia, to obtain the report, pursuant to the Freedom of Information and Protection of Privacy Act, S.N.S. 1993 c.5, (herein "the Act"). This application was to access the record of "psychiatric review of the cases of patients treated at the Cape Breton Regional Hospital in 1995 who later committed suicide...". The Department of Health transferred the request, pursuant to the Act, to the Regional Hospital. The report was completed on February 9th, 1996. Pursuant to s. 20(5) of the Act, the Regional Hospital released what it called "summary of the review team report". With the Hospital\'s refusal to release the report itself, Mr. Chisholm, on March 11th, 1996, filed a request, under the Act, for a review of this decision by the Regional Hospital. The Review Officer, Mr. Fardy, conducted the review. Ms. MacIsaac, on April 25th, 1996, wrote individually to number of the appellants indicating she was not allowing disclosure of the report because it was an internal review of practices and procedures and to be used for education and improvement of hospital services and protected from production by s. 60 of the Evidence Act. On May 6, 1996, Mr. Fardy released his report recommending the Regional Hospital disclose the report, subject to the editing of certain patient and other information. On May 10, 1996, Ms. MacIsaac again wrote to the appellants, saying: "The Cape Breton Regional Hospital has agreed to follow the recommendations of Mr. Fardy, and in addition, is prepared to release the report in its entirety without the severance of any parts as suggested by Mr. Fardy. Accordingly, enclosed please find copy of letter from Vincent J. MacLean, Chairman of the Board of Directors of the Cape Breton Health Care Complex, in which Mr. MacLean informed Mr. Fardy of this decision and seeks further directions on how to proceed." Pursuant to s. 41(1) of the Act, the appellants have appealed the Regional Hospital\'s decision to the Nova Scotia Supreme Court. The Appellants During the course of the two and one-half days of evidence, the Court heard from number of witnesses concerning, in respect to the appellants, the nature of assurances received, their view of peer review and its importance to health-care in the Province of Nova Scotia. With this in mind, will briefly review the evidence of the various doctors as well as some of the other witnesses who testified. Doctor Jackson testified that because of questions raised by the families as result of their individual tragedies, the two authors had been invited to examine mental health services in the Regional Hospital. During his meeting with the authors, on December 19th, 1995, the nature of the problem was outlined and it was stated the report was to be confidential and to be used by the Regional Hospital for such action as deemed necessary. He says the matter of confidentiality was discussed, including that the report was only to be delivered to Ms. MacIsaac. He testified "it was understood" the interviews with the physicians would be confidential. Doctor Jackson was referred to the summary of the review team report, dated February 23rd, 1996, prepared by Ms. MacIsaac and the administrative group, and expressed his concurrence with the concluding paragraph that reads: "The report of Drs. Kutcher and Kusumakar cannot be released in its entirety because it was prepared for the purpose of internal evaluation, education and improvement of Hospital care and practices, and contains confidential patient information." Doctor Jackson testified he was surprised when he learned the Regional Hospital had agreed to release the report, adding his belief the hospital did not understand the "issue of confidentiality". In respect to the impetus for the report itself, he noted that he and Doctor Sharma had met with the "Cormier family" on November 23rd, 1995, at which time it was suggested, because the family were not satisfied with the answers they were receiving, the possibility of their obtaining an external review. He acknowledged the purpose for obtaining the external person or review was in order to provide answers to the questions then being raised by the "Cormier family." Doctor Sharma testified he was present at the meeting on December 19th, 1995, with the authors as well as subsequent meeting on December 20th when he and Ms. Maclsaac met with them in "wrap-up session." He says it was understood there would be one copy of the report, to be forwarded to the C.E.O., and to be used in implementing any changes or recommendations suggested by the authors. He also agreed the last paragraph of the summary stating the purpose of the report is consistent with his understanding at the time. He testified the information he provided to the authors was on the assumption it was to be confidential. He also stated his agreement with the terms of reference attached to Ms. MacIsaac's letter of December 11th, 1995. He said he was shocked, surprised and disappointed when he learned the hospital had agreed to release the report. He testified this decision was made against the recommendations of senior management at the Regional Hospital and contrary to assurances given to the various persons who had participated in the preparation of the report. On cross-examination by counsel for the families, Doctor Sharma acknowledged that obtaining answers for Ms. Cormier was one of the factors that had lead to the creation of the external review. Doctor Sharma testified he was not aware the authors had been appointed committee of the hospital nor of his membership on such committee. Doctor B. Foley, staff psychiatrist at the Regional Hospital, testified he was approached, in December 1995, and advised there was to be "a peer review of mental health services in respect to the three suicides and the reviewers were to be the authors." He says he provided information, upon receiving assurances it was to be treated as part of peer review and the information was to be considered confidential. He said he was surprised and disappointed when he learned of the decision by the Regional Hospital to release the report. Doctor Foley testified that his understanding of the nature of the report followed discussions with Doctor Kusumakar and Doctor Sharma and it was Doctor Sharma who told him it was "peer review and confidential". Doctor S. Hasan testified he is also psychiatrist on staff at the Regional Hospital. He says he was approached in December 1995 and advised by Doctor Sharma that there was to be confidential peer review. He says he provided information to the authors on the basis it would be held in the strictest confidence and the only person receiving the report would be the Regional Hospital C.E.O.. He, like Doctor Foley and the other appellants, indicated that the concluding paragraph of the summary, was consistent with his understanding. He says he was very upset and felt let down when he learned the Board had decided to release the report. Doctor N. Malik testified he is staff psychiatrist with the Regional Hospital and that around December 19th, 1995, he was informed by Doctor Sharma there was to be review carried out at the Regional Hospital. He testified he was given to understand there would be two psychiatrists from Halifax who would be reviewing policies and procedures and as well discussing certain cases at the hospital. He says he understood it would be peer review and was not to be made public. He says when he attended the interview with Doctor Kutcher, he was assured the purpose was peer review for the hospital and any information provided would be treated confidentially. Doctor Malik testified that during the interview he gave personal information, patient information and professional discussions that he would not have provided if he had known the information would be made public. When he learned of the decision by the Board to release the report, he felt "shocked and honestly betrayed". He says all along he had been informed the report was to be "peer review" with the information only to be provided to the Regional Hospital and not to be made public. In response to counsel for the families, he stated Doctor Kutcher assured him at the outset that the authors had been engaged by the Regional Hospital to conduct "peer review" and the information would be treated confidentially. The Regional Hospital Board and Administration The only person from the administration of the Regional Hospital to testify was Mary MacIsaac, who was called by the appellants. She was the only witness, apart from some of the appellants, who had administrative duties. As she stated, she was "the Board's person in the hospital". Her responsibilities included the day to day running of the hospital, with responsibility for its overall management. She said that in the meeting with the authors, on December 19th, 1995, the discussion included an understanding the report would be for the Regional Hospital and would otherwise be confidential document. She testified that although resolution approving the status of the hospital committee, pursuant to the Evidence Act, was passed on January 12th, 1996, this was ratification of the poll of the executive committee that she had conducted on or about December 19th, 1995. She testified the summary of the report was prepared by the administrative group consisting of herself, Doctors Jackson and Sharma, and Ms. Richards. Accurately reflected in the last paragraph of the report was the fact it could not be released in its entirety because it was prepared for internal evaluation, education and improvement of hospital care and practices and as well contained confidential patient information. Ms. MacIsaac was referred to letter, from the appellant's counsel, dated May 9th, 1996, outlining the position of the appellants in respect to the doctors' privilege in relation to the report. She indicated her agreement with counsel's summary of the damage to the peer review process at the Regional Hospital in the event the report was to be made public. In response to counsel, she stated her position as C.E.O. is to bring to the Board the pros and cons, as well as the implications, arising from any decision under consideration by the Board. She says she does this; but, when the Board has made its decision, her responsibility is to carry out that decision. With respect to the decision by the Board to release the report, she testified she advised them their decision would impact on two communities, namely the community at large and the community of staff within the Regional Hospital. She said that following the decision by the Board to release the report, she met and advised the administration staff of the Board's decision. She indicated the reaction of staff was one of concern and shock and some interpreted that they had been betrayed. In her evidence she agreed that recommendations on peer review may themselves not be confidential, and although discussion of the care of particular patients would be considered confidential, the patient would be entitled to this information. She also testified that discussions of evaluating care are outside and different from the actual care itself. She responded to counsel she has never been involved in circumstance where part of peer review had been severed and disclosed. She agreed she might have given some of the information contained in the report to the families but regarded the report itself as being confidential. Donald Ferguson, Vice-Chair of the Board, and member of the Executive Committee, testified to the call from Ms. MacIsaac on either December 17th or 19th, 1995, in respect to the establishment of the confidential committee to review the three cases, to review records and procedures of the people involved, to review responsibilities of persons involved, and to provide written report. The committee, Mr. Ferguson says, was to be composed of two unnamed psychiatrists from Halifax, Doctors Sharma and Jackson, Ms. Richard, who was the assistant C.E.O, and Ms. MacIsaac. He says he understood the report was to be confidential document, and that later, on January 12th, 1996, he moved the resolution at the executive committee meeting ratifying the establishment of the committee. The Families On behalf of the "White family," Cindy MacDonald testified that on June 21st, her bother, Ronnie White, was taken to the Regional Hospital after having stabbed himself in the stomach. She says Doctor Wesolkowski apparently did not have her brother's records when he spoke to him. Her brother was not admitted, although she says she begged the doctor to keep her brother at the hospital. Two days later, apparently having taken some pills, put down, as she says, "to an overdose", he was taken to the Northside General Hospital but released later that day. Between June 25th and October 31st, 1995, he went missing and his body was found on October 31st, he having hanged himself. She met with the authors and they indicated they were doing review. After about two hours, she and the other members of the family present were told the report was to be forwarded to Ms. MacIsaac. She says, prior to this time, and in speaking to Ms. MacIsaac, there was no mention they would not be obtaining copy of the report. In replying to counsel she asserts the family has right to know what happened to her brother. On cross-examination by counsel for the appellants, and after acknowledging Ms. MacIsaac never said the family would be getting the report and it was just an understanding, she added, that Ms. MacIsaac told them once the report was received by her she would contact them and let them know whether or not the family would receive the report. She indicated the only assurances they would be receiving the report were from her M.L.A., Doctor Stewart, the then Minister of Health, who had visited her home. Lana Cormier testified about the death of her son who had been treated over period of some 11 months by Doctor Hasan, while an inpatient, and Doctor Malik, while an outpatient. After his death, she met Doctor Malik on number of occasions. On November 23rd, 1995, she met with Doctors Jackson and Sharma and Ms. Richards. She testified that at the end of this meeting she was told her next step, if she was not satisfied, was to request an independent review of her son's medical file and Doctor Sharma said she could pick any psychiatrist she wanted to conduct the review. She testified she was suspicious because she had heard four different opinions from four different doctors. She expected someone to actually tell her what had happened to her son. She wanted the file examined and determination made as to whether the treatment he received was adequate. She says it was following the making of these comments that she was given the opportunity for an independent review. She says Doctor Jackson, on December 4th, 1995, told her Doctor Hirsch would be coming and about four days later he called again saying there would be two psychiatrists from Halifax and they would be reviewing not only her son's death, but also two other cases. The question of who would be receiving the report was not discussed at this time. She stated it didn't dawn on her to ask who was getting the report because she was the one, as she understood, who had made the request in the first place. In response to counsel for the appellants, she repeated that having been told she could request an independent inquiry, she assumed without having to ask, she would be obtaining copy of any report. It was during the interview with Doctor Kutcher and, after having asked when the report would be ready, she was told it was being delivered to Ms. MacIsaac. She responded to counsel for the appellants she expected to receive the report, or at least the section dealing with her son, right up to the announcement by the Regional Hospital that it would not be disclosing the report. In response to the Court, she said she understood the report to deal with what had happened to her son and that it would include the care, diagnosis and treatment given to him. This is what she says she anticipated receiving. Dorothy Barrie is the sister of Marion Godin, who hung herself on November 17th, 1995. Following her sister's death, she, and other members of the family, raised an issue as to the timeliness of the referral of her sister from the Northside General Hospital to the Regional Hospital. She says she met with Doctor Foley but was not satisfied with the answers he provided. Similarly, she was again not satisfied after further meeting two days later. She then called Ms. MacIsaac and requested to talk to Doctor Wesolkowski. meeting was arranged attended by Ms. Richards, Doctors Wesolkowski, Jackson and Sharma, and by approximately fourteen members of her family including her sisters, their spouses, her brothers, nieces and daughter of the deceased. Again, following this meeting, she and the other family members were not satisfied with the answers they had received. Following protests and the writing of letters, she learned two doctors were coming from Halifax. She agreed, other than what she was told by Doctor Stewart, no one else said anything about her receiving the report. Peer Review in Health Care On the issue of "peer review," which is central to the position of the appellants on this appeal, note the evidence of Anne McGuire, Chief Executive Officer, of the Nova Scotia Hospital. Ms. McGuire testified to her experience as surveyor for Canadian Health Services Accreditation and in particular, her experience with respect to the presence and use of peer review as tool and mechanism in evaluating hospitals and their quality assurance and management systems. One of the areas examined, in the evaluation of hospitals, relates to the level of quality assurance. She testified that peer review is an essential component of these quality assurance programs. As C.E.O. of the Nova Scotia Hospital, she has observed benefits gained from peer review and noted willingness by all disciplines to sit together and discuss performances both of staff and of hospital policies and procedures. She says the Nova Scotia Hospital has responded to the recommendations arising out of these peer reviews, with the net result being an improvement in the quality of care. She described these reviews as also having an educational value. Following publication of the recommendations of Mr. Fardy, the physicians at the Nova Scotia Hospital indicated to her the possibility of their not participating in future written peer reviews pending determination of the question of confidentiality in respect to these reviews. She says the issue is serious concern to the Board at the Nova Scotia Hospital. She agreed the patient is entitled to know how they were treated, saying patient treatment must be on the health record, but adding, however, that what is included in the peer review document, as it relates to that treatment, should not be made available. It is not so much the treatment, as the discussions surrounding the treatment, which should be treated as confidential. Any critical analysis of whether there should have been other treatment is part of the peer review process and part of the information she feels, under peer review, should be treated as confidential. Doctor Cynthia Forbes is President of the Nova Scotia Medical Society. She said some physicians have indicated to her an intention to refuse to participate in peer reviews until the question of confidentiality has been settled in this proceeding. She said confidentiality is essential and affords physicians with an opportunity to speak openly and freely with the ultimate goal of achieving an improvement in health care. In response to counsel for the families, she said there are other mechanisms available to the families to answer their queries on the care and treatment of the three deceased. Peer review is an educational tool and confidentiality should not be grounds for suspicion by family or members of the public. She stated it is regrettable if peer review report is used for the purpose of providing answers to family concerns. She did acknowledge, to counsel for the intervenors, that she has never, in her experience of peer reviews, seen where people outside the institution have been interviewed as part of the process. Doctor Jackson testified peer review is process whereby colleagues sit down and discuss topics of interest. He said it is an educational process for the purpose of reviewing whether treatment and care could be done more effectively and, as such, is form of quality control. Participants, since the process is confidential, are able to speak freely and openly. In the opinion of Doctor Jackson, if the decision of the Board to release the report stands, there will be very considerable reluctance on the part of physicians to take part in future peer reviews. Doctor Sharma testified peer review is process during which physicians look at the delivering of medical services and examine the performance of the physicians as well as themselves. Physicians are prepared to criticize themselves, and each other, in order to ensure better service for the patient. In doing so, they are prepared to be candid and open on the assumption the process will be confidential. Doctor Sharma stated that if the decision by the hospital Board to release the report stands, although from an ethical point of view peer review will continue as part of every day practice and physicians will continue to participate, they will be more guarded and circumspect. Medical service will no longer receive the benefit of full, frank and open participation by doctors and presumably will thereby suffer. Doctor Foley testified peer review is critical analysis and evaluation of patient care. He described it as confidential and privileged process carried out in confidential manner in order to ensure critical self-analysis as well as analysis of the performance by colleagues. With respect to his participation in the review conducted by the authors, he noted he provided patient information, personal information and professional information and opinion. Patient information, he defined, is information that would be available in the medical record of the patient. Personal information is information related to himself or his colleagues. Professional information is speculations, and criticisms of performance. He stated he would not have provided this information if he believed the report would be released outside the hospital. The process of peer review is critical review of care and systems and is more likely to be achieved, in the opinion of Doctor Foley, in an environment of confidentiality. In response to counsel, he stated that if the decision of the Board stands, there will be an adverse impact on peer review and it will no longer be as frank and as candid as it has been in the past. In respect to questions of confidentiality, as they relate to peer review, he testified, on cross-examination by counsel for the families, that the information he provided included his opinions and speculations as well as his involvement in one of the cases. Doctor Hasan testified peer review means that in confidence colleagues can discuss performance with view to educating and enlightening participants on the best means of providing patient care. In peer review, participants criticize both self and other colleagues and discuss hypotheticals. He testified that if the decision of the Board stands, he will not, in the future, be as critical of self or others in the realization that what he may say could then become public information. Doctor Malik testified peer review is critical analysis and evaluation of performance and decisions by other persons with similar professional expertise and background. The purpose, in his view, is to enhance the quality of care and involves critical analysis, not only of self, but also of other colleagues. He also testified that if the decision of the Board to release the report stands, the hospital will suffer and there will be reluctance, by participants in future peer reviews, to advance questions and concerns, knowing they may later become public. In response to counsel for the appellants, he stated patient information would extend beyond what is seen on the patient's hospital chart. Patient information is the information regarding the particular case, agreeing it is confidential to the patient. The second type of information he provided related to self-critical analysis of himself and colleagues. The third type of information he says he provided were comments concerning the practices and policies of the Regional Hospital. Ms. MacIsaac testified peer review is both ongoing in hospitals and is an important part of quality management and assurance. Peer review involves an examination of the quality of care for the purpose of improvement and to locate gaps in the hospitals policies and procedures. Review can take number of forms, including performance appraisals, reviews by two peers of their respective performances or reviews of particular case. Peer review is confidential process carried out to achieve quality care and management improvement and is designed to permit participants to be both up-front and willing to criticize colleagues as well as policies and practices within the hospital. The objective is to achieve an improvement in patient care. There is an additional educational purpose to the process. She testified when she advised the administrative group that the Board had decided to release the report, she was informed peer review would be in jeopardy at the Regional Hospital. Doctor Douglas E. Sinclair is Vice-President of medical services at the Q.E.II Health Centre, in Halifax. He was qualified as an expert in the field of hospital administration, peer review and quality assurance programs. He says the provision of quality patient care is the ultimate goal of any health-care institution. In his written report, Dr. Sinclair says: "Peer review and quality improvement activities conducted in the quest for quality patient care are result of the collaborative efforts of all hospital staff. ... Peer review and quality improvement activities provide structured approach to considering all aspects of patient care with the expectation that it will result in improved care. Because of the nature of the data collected all such information is highly confidential and sensitive. ... It is difficult for hospital management and lay board members to ascertain whether or not the care provided by specialist staff meets acceptable standards of practice. Therefore; quality and peer review activities, such as the Queen Elizabeth II Health Sciences Centre Clinical Quality Management Committee (formerly Clinical Appraisal) and its sub-committees in our hospital setting requires the involvement of these specially prepared individuals, who are involved in providing care, to appraise whether or not the care that was and potentially will be provided by the hospital meets an acceptable standard. Peer review activities, especially those of physicians, who are not employees of the hospital depends on the assurance that all deliberations, review activities and performance information will be kept in the highest degree of confidence. ... Confidentiality and legal immunity from discovery is the foundation to all quality and peer review activities within the facility. For ultimately self-regulating professionals, such as physicians and other health-care professionals to participate frankly and honestly in hospital sponsored review activities legal protection of clinical and peer review activities must be preserved and strengthened. Any weakening of the legal protection now provided would ultimately result in the collapse of all quality and peer review activities currently conducted within our facility." In his oral testimony he stated, peer review is tool and component of quality management and is necessary in order to ensure to the public the maintenance of quality care. He said confidentiality is fundamental to peer review as it affords an opportunity for frank and open discussion by the various participants. He also noted concerns have been expressed by staff at the Q.E.II on the question of the confidentiality of future peer reviews. He testified doctors are committed to the process of peer review, in part because they are conducted in confidence and, in his opinion, the disclosure of the authors report will "destroy peer review in the Province of Nova Scotia". He says because hospital boards are composed of lay persons, it is necessary for them to rely on medical staff in order to ensure quality patient care. In response to counsel for the families, he said physicians in the critical care department of the Q.E.II have suspended peer review pending the outcome of this case. Doctor Sinclair repeated that although physicians are strong believers, they are extremely concerned with the question of confidentiality. Although the time period for filing written reports has not yet arrived, Doctor Sinclair says they have put him on notice that pending the determination of the issue of confidentiality for peer reviews, they might not be prepared to submit these reports when they become due. The other "qualified" expert testifying was Doctor Victor McLaughlin, Executive Director of the Atlantic Provinces Medical Peer Review. He also was qualified as an expert in peer review and testified it is process whereby one segment of the profession is examined by other members of the same segment. In his written report he says: "WHAT IS PEER REVIEW? The words simply mean that the actions of members of one segment of our society are examined by others of that same segment. In the context of health services the term is used to mean the review of the work done by health professionals carried out by others who do the same type of work. Because of the complexity of the work done by some of these professionals it is recognized that only their peers are in position to make appropriate judgments on its quality. Peer review is one of number of techniques that are used to verify that the quality of health services provided to the public are at satisfactory level and to determine methods of improvement. It is not simply an examination of knowledge or an evaluation of clinical or technical skills. It is program to evaluate performance." In discussing the importance of confidentiality in peer review, Dr. MacLaughlin, in his written report, continues: ... As the practice of medicine becomes more complex and more specialized, the individual physician becomes more dependant upon his colleagues. The process of continuing education and the process of determining whether or not services being provided are at satisfactory level requires regular reassessment. Sometimes this can be done by self-assessment, but often it is necessary to have one's work assessed by peer in order to obtain objectivity. In short, the entire process whereby person becomes physician and practiscs (sic) medicine creates mindset to assist other physicians and not to do anything which may harm him. Intellectually, physicians realize that there is need to analyze the work of the profession in critical way, but they will do only if they feel confident that it is going to be used only for the betterment of the profession and its ervice (sic) to the public. On the other side of the coin, in the process of Peer Review the individual physician must allow his peers to examine his dirty linen, tell him how dark is the shade of grey, and how he can make it cleaner. ... Peer Review is process in which many, if not most, will participate only if they believe that they are not exposing themselves to an unacceptable risk. They must believe that their soul-searching is behind closed doors and will not be used to destroy them. Not only must it be confidential, but the physicians must feel secure with that confidentiality. IMPORTANCE OF PEER REVIEW TO HOSPITALS. Hospitals, as corporate citizens, have responsibility to see that the care that they provide to the public is of the highest quality possible. No hospital can maintain its accreditation without quality assurance programs being carried out on regular basis ... quality assurance programs also involve peer review in many different forms. All of the professional people in the hospital should be carrying out peer review on regular basis. DOES THE PUBLIC HAVE AN INTEREST IN PEER REVIEW? ... the public wants to see that the hospital to which it will turn for emergency health care has three year accreditation and it wants to know that the Accreditation Council has checked to see that the quality assurance programs are in place. Peer review is part of those quality assurance programs. Does the public have an interest in peer review? Yes, it does." His report concludes by asserting the disclosure of the authors report can reasonably be expected to result in similar information no longer being supplied by physicians, and that confidentiality is necessary condition for continued participation, by Doctors, in peer reviews. Although the Atlantic Provinces Medical Peer Review is primarily involved in the examination of physician practices, outside the hospital setting, Doctor McLaughlin testified, peer review in the hospital setting is itself important because of the changes regularly occurring in the field of health services and the need for examination, analysis and review to ensure that the services being provided are the best they possibly can be in the circumstances. He notes that failures are inevitable; however, it is important to ensure they are not repeated. This, he says, is accomplished by the educational aspects of the peer review process. He also says peer review uses the standard of the "ideal" world. It is against this standard the review is being conducted. When carrying out peer review, confidentiality is required in order to protect the participants in criticizing both colleagues and themselves in order to ensure, in voicing such criticisms, their statements will not later be used against them. On the question of confidentiality of patient information, Dr. MacLaughlin acknowledged this information belongs to the patient and therefore may be released or revealed only if the patient so directs. The Act The purpose of the Act is defined in s. and includes, in ss.2 (i) and (ii), that public bodies are fully accountable to the public, by giving the public right of access to records and giving individuals right of access to personal information about themselves. Subsection (iii) provides that one of the purposes is to provide limited exceptions to these rights of access. There is, in this case, no dispute that the Regional Hospital is public body, as defined in ss. (J) of the definition section. By s. 4, the Act applies "to all records in custody or under the control of public body...". The exceptions in ss. (2) are not here applicable. The right of access is set out in s. 5(2): "The right of access to record does not extend to information exempted from disclosure pursuant to this Act, but if that information can reasonably be severed from the record an applicant has the right of access to the remainder of the record." Section sets out the procedure to be followed in requesting access to public record. It involves request, in writing, specifying the subject matter of the record so it can be identified and the payment of any fees. Section outlines the duty on the public body upon receipt of request for access: The head of the public body is to make every reasonable effort to assist the applicant and to respond without delay to the applicant openly, accurately and completely. No other form of hearing is apparently envisaged by the provisions or procedures in ss. and 7. The procedure, following determination by the head of public body not to positively respond to request for record, is set out in ss. 32 to 40 and involves an application for review to review officer. Under s. 35 the review officer may try to settle the matter through mediation. Section 37 permits the review officer to decide the procedure on the review, including whether it is to be orally or in writing. Under s. 39, the review officer is to prepare report setting out recommendations and the reasons for the recommendations. By s. 40, the head of the public body, upon receipt of the recommendations, is to decide either to follow the recommendations of the review officer or to make another decision. If the decision is not to follow the recommendation, they are to advise the applicants and any third party of their right of appeal to the Supreme Court. The role of the Supreme Court is set out in s. 42. The Court is to determine if the head of the public body was justified in refusing to disclose or in disclosing the report. By ss. 6, the Court is clearly not to substitute its discretion nor its view on the issue of the request for disclosure of the report. It is simply to determine if the head of the public body was, in the circumstances, entitled to make the decision it did. The Issues Originally there were, in effect, three issues: 1. Does s. 60(2) of the Evidence Act, in the present circumstances, apply to the request for disclosure of the authors' report? 2. Does the content of the report fall within the statutory exemptions found in s. 21(1) of the Act? 3. Is the report protected from production by reason of privilege and does its content fall within the statutory exemption set out in s. 20(1) of the Act? 1. Does s. 60(2) of the Evidence Act, in the present circumstances, apply to the request for disclosure of the authors' report? It no longer appears to be in disputed that s. 60 is not applicable because, in the present circumstances, the request for access and the decision by the Board, do not involve processes within the definition of "legal proceeding" contained in s. 61(a), nor are we involved with "witness" being asked, in the course of legal proceeding, to answer questions or produce documents as provided in ss. (b). In the event there may later be such "legal proceedings" and persons are called as "witnesses" then, pursuant to s. 60(1)(b), it will be for determination at that time whether, and to what extent if any, the privilege in s. 60(2) will be applicable. In this regard, make no finding in respect to the application of s. 60(2) on such legal proceeding and on such an application. 2. Does the content of the report fall within the statutory exemptions found in section 21(1) of the Act? Section 21 is headed "Confidential Information." It requires the satisfaction of three conditions, listed in ss. (a), (b) and (c). In effect, for purpose of this application, the question relates or turns on the interpretation of s. 21 (1) (a), and specifically, whether disclosure to the applicant would reveal information that was trade secret or of scientific, technical nature or involving labour relations of third party". In considering s. 21 and whether it would involve the revealing of trade secrets or of scientific or technical information or labour relations information, note the written submission, on behalf of Mr. Chisholm, to the following effect: "One must look at all of s. 21 in interpreting the intent of the legislators. Section 21 says trade secrets cannot be revealed, or commercial, financial, labour relations, scientific or technical information. Read as whole, the respondent argues s. 21 is designed to protect third parties from being disadvantaged in commercial activity or in negotiations. If the Appellant was engaged in developing some cutting edge psychiatric treatment or technology in partnership with pharmaceutical company, then perhaps s. 21 would have some application here. We submit it does not." Counsel for the families, in acknowledging that the ordinary "commonly understood" definition of "technical information" should apply in interpreting s. 21, says it is not applicable in respect to report reviewing "practices and procedures" in the care and treatment "received by three patient's, that also "contains evaluations with respect to hospital personnel". Counsel suggests any technical information contained in the report is simply "by-product" of the primary thrust of the review, which involves the circumstances surrounding the medical treatment of the three patients that was the triggering factor behind the creation of the report itself. The report was commissioned with the primary focus of finding out what had happened and any technical information is only "by-product" of this primary focus. On the other hand, counsel for the appellants cites the Oxford dictionary defining medicine as, "the science concerned with the cure, alleviation and the prevention of disease, and restoration and preservation of health". As result, in the submission of counsel, the appellants during the interviews with the authors were dealing with scientific or technical information. It is acknowledged that in order to come within s. 21 it is also necessary the information be supplied, implicitly or explicitly, in confidence and also meet one of the various conditions set out in ss. (c). In respect to the present circumstances, the care and treatment of the patients was, as noted by number of the witnesses, confidential to the patients and, by virtue of s. 43 of the Act, to their personal representatives. As such, any scientific or technical information concerning their care and treatment are matters that are not confidential to the third party appellants but rather to the families who now seek the disclosure of these particulars. The information on the care and treatment of these patients necessarily would include matters of scientific or technical nature; however, this would not be supplied to the patient in circumstances of implicit or explicit confidence, in regards to the patient themselves and, therefore this information would not meet the requirements for non-disclosure pursuant to s. 21. In respect to information concerning the policies and practices of the Regional Hospital, this might possibly have qualified under s. 21; however, in view of the hospital's willingness to disclose the full report it is to be assumed the information as to its policies and procedures, as determined by the authors, is not intended to be held in confidence by the Regional Hospital. There is also an additional issue as to whether the Regional Hospital would qualify as third person for purposes of the Act. will deal further with this question when reviewing the applicability of s. 20. However, in this case, and in respect to s. 21, the disclosure of information by the doctors on the hospitals policies and practices, is matter of confidentiality to them and not to the hospital. I'm satisfied therefore, in supplying these comments or evaluations the appellants were communicating this information in the belief it would be held in confidence. It is therefore only in respect to identifying individual persons, as the suppliers of comments on the practices and policies of the hospital, that s. 21(1)(b) is satisfied in the present circumstances. Also, the doctors in supplying evaluation, analysis and criticism of self and other colleagues were doing so in the belief their information was being supplied in confidence and therefore such information would also clearly meet the requirements of ss.(1) (b). The requirement in ss. (c)(ii) that as result of any disclosure it could reasonably be expected similar information will no longer be supplied to the public body depends, in these circumstances, on the decision whether the information in question meets the requirements of s. (1)(a). In our view, if ss. 1(a) has been satisfied, then the other two conditions necessary to come within s. 21, would equally have been satisfied. There is nothing in s. 21 referring to personal or private information. reading of s. 21, as whole, suggests it is intended to protect trade and scientific and commercial secrets or information and does not relate to personal and private information. Absent evidence, of which there is none, that the information here consisted of scientific or technical secrets or labour relations secrets, the scientific, technical or labour relations aspects of the information provided is only, in our view, incidental. The concern, as testified to by Doctor McLaughlin, as well as other of the witnesses, is about the personal expressions of opinion by the doctors relating to their analysis and criticism of the performances of self and colleagues. In this respect it is the "personal" nature of the information that is of concern, not any "scientific, technical or labour relations aspects." am satisfied, having regard to the Act as whole, s. 21 is only designed to protect third parties from being disadvantaged in commercial activity or in labour negotiations. This section is intended to prevent disclosure where it would reasonably be expected to harm significantly the competitive position or interfere significantly with the negotiation position of third party, result in undue financial loss or gain to any person or organization or reveal information supplied to, or the report of an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into labour-relations dispute. The expressed opinions, by the appellants, in respect to the performances of self and others, as well as the practices and polices of the hospital, undoubtedly relate to matters of "scientific or technical nature". However, the thrust of the concern, is neither the technical nor the scientific nature of the information. It is, on the other hand, the "private" nature of the comments that, on the evidence of the appellants and intervenors, causes them concern. The technical or scientific or even the labour relations aspect of the information is clearly incidental to the personal and private nature of the comments made during the course of the various interviews with the authors. There is no suggestion, in the evidence, that the technical or scientific or labour relations nature of the information will harm the competitive, financial, negotiation position of the third parties or disclose trade secrets. On the other hand, the evidence is that it will disclose the personal views and opinions of the doctors of themselves as well as their colleagues. Despite, therefore, the technical or scientific or even labour relations nature of some, and perhaps most of the information communicated by the appellants, this information is not, in these circumstances, protected from disclosure by s. 21. 3. Is the report protected from production by reason of privilege and does its content fall within the statutory exemption set out in s. 20(1) of the Act? The third issue involves the question of privilege at common law and the application of s. 20 of the Act. The conditions for the existence of privilege, against the disclosure of communications were outlined by Wigmore and adopted by the Supreme Court of Canada in Slavutych v. Baker et al. (1975), 1975 CanLII (SCC), 55 D.L.R.(3d) 224 at page 228. "(1) The communications must originate in confidence that they will not be disclosed. "(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. "(3) The relation must be one which in the opinion of the community ought to be sedulously fostered. "(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." During the course of argument, it was suggested there is presently no litigation and therefore, condition four would not apply. am satisfied that proper interpretation of the four conditions references, in condition four, not only existing but also potential or future litigation. The absence of any litigation by the families, at present, would not preclude the existence of the privilege. The distinction between the records of hospital disclosing the facts relating to the care, assessment or diagnosis and treatment of patient, as opposed to the examination and evaluation of the facts for the purpose of both education and improvement of care, practice and services in hospital was recognized by the Saskatchewan Court of Appeal in Kerr v. Saskatchewan (Minister of Health), 1994 CanLII 4586 (SK CA), [1994] W.W.R. 153. Sherstobitoff, JA, in delivering the judgment of the Court, at pp. 159, 160 and 161, said: "On the application of the Wigmore rules approved in Slavutych, he determined that the committee documents were not privileged. On this analysis, Finley stood, at most, for the proposition that the records of hospital discipline committee in respect of specific incident were not privileged from production to the person injured in the incident. Communications of the facts of an incident, whether between hospital personnel or involving third parties, do not normally originate in confidence. It cannot conceivably be said it is in the public interest that such facts should be concealed from litigant who alleges that he has been injured as result of that incident. Examination and evaluation of the facts of an incident for the purpose of the education of hospital personnel and the improvement of care, practice and services of hospital is quite different matter. This function includes peer review, criticisms, matters of opinion, and recommendations for changes. Most of these things will originate in the expectation that they will be held in confidence. The confidentiality is necessary to ensure free and frank discussion, expression of opinion and recommendations for changes without the fear that such expression will be used for the benefit of private litigant. No one can gainsay that the objectives are desirable for the community in general and thus can be said to serve the public interest. Certainly, good argument may be made that such communications do meet the Wigmore criteria for privilege." In respect to the communications by the appellants to the authors there is no question that from their perspective they originated in confidence they would not be disclosed. This condition of confidentiality was, and is, viewed as essential to the full and satisfactory maintenance of the relationship between the appellants and the Regional Hospital. This relationship is also one which ought to be sedulously fostered and on the evidence, injury will inure to this relationship by the disclosure of these communications in these circumstances, and although the disclosure of personal comments and evaluations may be of assistance to the family in respect to any future litigation, it is not necessarily information that is required for this purpose. Although the circumstances surrounding the communication of both the patient and other information provided to the authors by the appellants may have satisfied the "Wigmore" conditions for "confidentiality" and, therefore, justify nondisclosure, regard must also be had to any relevant statutory provisions that may limit, extend, modify or wipe out this common law privilege. In this respect, s. 20 of the Act is relevant. Section 20 is headed "Personal information" and begins by requiring the head of public body to refuse disclosure of personal information if the disclosure would be an "unreasonable invasion of third party's personal privacy". Section 3(i) defines "personal information" as: "recorded information about an identifiable individual, including ... (vi) information about the individual's health-care history, including physical or mental disability, ... (viii) anyone else's opinions about the individual, and (ix) the individual's personal views or opinions, except if they are about someone else." In determining whether it is an "unreasonable invasion of third party's personal privacy", the head of public body shall consider: Subsection 2: "all the relevant circumstances, including whether ... (c) the personal information is relevant to fair determination of the applicant's rights; ... (f) the personal information has been supplied in confidence; ... (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant." Subsection presumes certain information to constitute an "unreasonable invasion of third party's personal privacy" if: "(a) the personal information relates to medical, dental, psychiatric, psychological or other health-care history, diagnosis, condition, treatment or evaluation; ... (g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations;" On the other hand, ss. (4) presumes disclosure of personal information of certain types as not being an "unreasonable invasion of third party's personal privacy" if: "(a) the third party has, in writing, consented to or requested the disclosure." Subsection provides that where there is refusal: ". to disclose personal information supplied in confidence about an applicant, the head of the public body shall give the applicant summary of the information unless the summary cannot be prepared without disclosing the identity of third party who supplied the personal information." Relevant also, in the circumstances of this case, are ss. 27 and 43. Section 27: "A public body may disclose personal information only ... (b) if the individual the information is about has identified the information and consented in writing to its disclosure." Section 43: "Any right or power conferred on an individual by this Act may be exercised a) where the individual is deceased, by the individual's personal representative if the exercise of the right or power relates to the administration of the individual's estate." On the question of confidentiality, as reviewed earlier, Doctor Foley said there were three types of information communicated to the authors: patient information; personal information; professional information and opinion. Doctor Sharma, in respect to patient information, testified the confidentiality in respect to patient information is designed to protect the client, and, is therefore the patient's confidentiality. Also, Doctor McLaughlin agreed patient information is confidential "to the patient". The first question, on this issue is whether, under s. 43, personal representatives of each of the deceased are entitled to seek or to waive the confidentiality of the patient information, and whether the seeking of this information, by the personal representative, relates to the administration of the individual's estate. In the present circumstances, where the individuals are deceased and where the information sought relates to the circumstances of their care and treatment proceeding their death, it is clear the request would fall within s. 43(a). It is mistake to attempt to label the report of the authors as simply or solely "peer review." Its origins were the suicides of three persons who, prior to their deaths, had contact in one form or another with the Regional Hospital and some of its staff. As stated by Ms. MacIsaac an impetus for the review was the concerns by the families, and initially the "Cormier family", and their dissatisfaction with the answers they were receiving from the hospital staff. Clearly, to the families, the report was seen as fact finding investigation to determine what happened. Ms. Cormier testified she requested the independent review during her meeting with Doctors Jackson and Sharma and Ms. Richards on November 23rd, 1995, when she was told by Doctor Sharma that her next step, if she was not satisfied, was to request an "independent review of her son's medical file". In response to counsel, she said she expected someone to actually tell her what had happened to her son. She wanted the file looked at and to be told if he had received adequate treatment. Although some of this information may be available, as testified to by Doctor Forbes and suggested by Doctor McLaughlin, by other legal process this is no basis to preclude the persons entitled to the privilege or privacy from receiving the information or to waiving the privacy even where the information is gathered or obtained under process that also contains elements of confidentiality to others. None of the witnesses testified that the course of any treatment or any diagnosis by medical staff at the hospital, in respect to each of the deceased, involved peer review. In fact, such does not meet the criteria suggested by any of the definitions of peer review given by the various physicians and other persons who testified during the course of this hearing. This information is confidential to the patient, and in view of s. 43(a) the individual personal representative of each of the deceased are entitled to seek the information and to waive its confidentiality, if they so decide. In this respect, refer to the decision of the Supreme Court of Canada in McInerney v. MacDonald (1992), 1992 CanLII 57 (SCC), 137 N.R. 35 where the circumstances are summarized in the headnote: "A patient requested her doctor to provide copies of all documents in her medical file, including documents received from five other physicians who previously treated the patient and written opinions as to her health prepared by consultants." The Supreme Court, as further noted in the headnote, agreed: ". all documents were to be disclosed to the patient. ... The fiduciary duty to provide access to medical records was grounded in the nature of the patient's interest in his or her records. ... The patient has prima facie right to access in equity, there was no evidence that access would be harmful to the patient or third party and the doctor offered no other compelling reason to justify nondisclosure ... patient was entitled to inspect and copy all information in the patient's medical file which the doctor considered in administering advice or treatment." The only qualifications to disclosure, were noted by LaForest, J., at p. 59, and related to the presence of regulatory legislation or where there was evidence that "access to the records would cause harm to the patient or third party," or the existence of "other compelling reason for nondisclosure." Although little, by way of specific assurances were ever made to the families, in terms of their receiving the report, it is clear, in the circumstances, they had every reason to believe that as result of the review they would be provided with whatever answers were learned. Ms. Cormier was offered the opportunity to have her son's medical file reviewed by an independent psychiatrist. Clearly it would be reasonable for her to expect she would be provided with the results of such an independent study. Ms. MacIsaac testified one of the impetus for the review were the concerns and questions of the families. She also testified that although she never intended to give the families the report, she planned to meet with them, after receipt of the report, and give them further answers. As she said, "hopefully she would be able to get answers to these families". Issues of peer review involving as they do self and colleague analysis and criticism in respect to performance, do not appear to be the focus of the families expectations, nor, on the evidence, were they promised this information. It is, in our view, far too easy to simply attach labels to inquiries or reviews and thereby seek to have them cloaked by some legal security or privilege blanket. This report contains elements of what has been identified, and accept, as peer review, but to larger extent, focuses on findings as to the assessment or diagnosis, care and treatment of the three deceased. The families, in my view, expected report detailing what had happened. Nothing was said or done to suggest they wouldn't receive this and, in fact, they were, if anything, encouraged in the belief this would be forthcoming. am here satisfied that the personal representatives of each of the three deceased, are, pursuant to s. 43(a) entitled to the information concerning the care, treatment, diagnosis and or assessment by the hospital staff of each of the deceased. The second question, on this issue, relates to the information communicated by the appellants to the authors in reference to the practices and policies of the Regional Hospital. Section 20 of the Act only mandates that the head of public body shall refuse to disclose personal information where the disclosure would be "an unreasonable invasion of third party's personal privacy". The personal privacy of the public body does not appear to be basis for the refusal to release such information. In any event, the Board of the Regional Hospital has agreed to the release of the report and, thereby, the release of any comments by the authors concerning any practices, policies and procedures at the Regional Hospital. The third type of information, supplied to the authors, involved performance criticisms by the appellants of themselves and others and, as well, identification by them of individual concerns or comments on the policies and practices of the Regional Hospital. The report, as commissioned, went beyond detailing the care, diagnosis or assessment and treatment of these three deceased, and, as outlined by Doctor Kutcher in his letter of December 4th, 1995, went on to consider the actions, roles and responsibilities of the patients, the hospital staff, physicians and families of the deceased and asked the reviewers to review and access the nature and adequacy of patient records and hospital policies and practices as they related to the three cases. It is, in our view, on all the definitions of peer review advanced by the various witnesses only in respect to information detailing staff analysis and criticisms of the performances by other staff, and themselves, together with individually identified comments or concerns on hospital policies and procedures that the question of "peer review" arises in the present case. In Doyle v. Green, [1996] N.B.J. No. 122, Turnbull J., of the New Brunswick Court of Queen's Bench, was concerned with the validity of claim of privilege to number of documents in hospital, following surgery on the plaintiff. Objection to production was made on number of grounds, including the general ground of physician/patient privilege, s. 43 of the Evidence Act of the Province of New Brunswick, which is similar, but not the same, as s. 60 in the Nova Scotia Evidence Act, and on the common law principles accepted in Slavutych v. Baker, supra. One of the medical affidavits filed, and considered, by Turnbull J. contained the following: "(26) It is in the public interest that there be frank disclosure between health care professionals in order to maintain high quality health-care delivery programs. (27) In order for the Region Hospital Corporation to carry out its mandate to monitor, maintain and improve medical care, the individuals providing information and co-operation and participating in this committee work must be satisfied that any communication which originates is on confidential basis that may not be otherwise disclosed. This element of confidentiality is essential to obtaining the co-operation and maintaining the relationship between the various Committee members, various physicians as well as other hospital staff involved." After reviewing Wigmore's four conditions for establishing privilege against disclosure of communications, as adopted by Spence, J., in Slavutych v. Baker, supra, Justice Turnbull, at paragraph 20, said: "In Regional Hospital Corporations's case doctors' privileges are reviewed annually. Other doctors' opinions are periodically sought on individual performance. The Slavutych case itself is authority to the effect that these communications should remain confidential through privilege. There is tremendous benefit to society generally in having doctors evaluate each other, perhaps leading to upgrading, or otherwise ensure that hospital privileges are extended only to competent doctors as assessed with input from his or her own peers. Any reservations expressed are solely opinions and indeed may be based on groundless reasoning. To reveal this type of information would obviously lead to discord in the hospital staff itself and expect it would be an exceptional case where such communications would be of more benefit to the correct disposal of litigation than the injury that would be caused by disclosure. It was this type of communication that was involved in Slavutych." In dealing with statutory provision similar to s. 60 of the Nova Scotia Evidence Act, Justice Turnbull then went on to hold that reports, prepared by the hospital or the appropriate committee, are privileged if the dominant purpose is educational or to improve hospital care. He then, at paragraphs 29 and 30, continues: ". do not believe there is any prohibition in this legislation that prohibits production of facts uncovered in the in-house investigation. There is no educational or hospital care benefit to the raw data. The dominant purpose at this stage is to find out what happened. The educational aspect comes from the opinions of doctors sitting in formal committees expressing opinions and listening to the opinions of his or her peers and in examining those facts and writing reports based on their collective wisdom, experience and learning. believe the amendments make these changes to the common law as compromise of interests." In our view, in s. 20 there is similarly compromise or balancing in seeking to weigh the information of public body that should be disclosed and information, if disclosed, that would amount to an unreasonable invasion of third party's personal privacy. Section 20 (3) (a) presumes the personal information relating to the medical, dental, psychiatric, psychological or other health-care history, diagnosis, condition, treatment or evaluation, of an individual to be "an unreasonable invasion of third party's personal privacy". similar presumption, under s. 20 (3)(g) arises in respect to personal information that consists of personal recommendations or evaluations, character references or personal evaluations. In the context of this application, and apart from identification of the source of any concerns or comments about hospital policies and practices, the only areas involving peer review would be references to information obtained from the participants involving self or colleague performance analysis and criticism and any recommendations made by the authors, or conclusions drawn by the authors, from this information. At most, this would appear to involve little of the 29 pages comprised in the report. The discloseable portions of the report are more than "disconnected snippets of releasable information taken from otherwise exempt passages" referred to by Justice MacKay in SNC Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113. Clearly, on reading the report, the portions involving "peer review", are reasonably severable from the remainder of the report. They are, pursuant to s. 20, "presumed to be an unreasonable invasiton of third party's personal privacy" and therefore not to be disclosed. There need not, however, be the distorted picture referred to by Edwards J. in the Donham v. Nova Scotia (Attorney General) et al (1993), 123 N.S.R. (2d) 320, by the removal from the report of the passages detailing these personal evaluations and the resulting conclusions of the authors. Conclusion Pursuant to s. 20(3)(g), the disclosure of personal information consisting of personal recommendations or evaluations, character references or personal evaluations by the appellants and other Regional Hospital staff are "presumed to be an unreasonable invasion of a third party\'s personal privacy" and by s. 20(1), the hospital is required to refuse to disclose this information. It necessarily follows that recommendations by the authors founded or based on such information is also presumed to be an unreasonable invasion of privacy and likewise not to be disclosed. As such the information referred to above is to be edited out of the report as well as any recommendations based on such personal information. Pursuant to ss. 20 (3)(a), 20 (4)(a), 27 and 43 the remainder of the report is discloseable to the personal representatives of the three deceased. Each of the personal representatives is entitled to receive an "edited" copy of the report, from which has been deleted any information relating to the other individuals who have suicided and the personal information herein found to constitute an "unreasonable invasion of the privacy" of the appellants and other hospital staff who provided information to the authors. The Regional Hospital, on the representations made to this Court, has consented to the release of the report. As such, it clearly has consented to release of any comments and recommendations relating to the hospital's policies and procedures. Excluding any passages identifying any of the appellants or other participants as communicating comments relating to the hospital's polices and practices, being concern expressed by one of the doctors, there is no basis to withhold these sections of the report from disclosure, at least, to the families. The report also deals with Identification and Terms of Reference, Process and Documents reviewed, and Background Issues Regarding Suicide and, like the findings as to the treatment, diagnosis or assessment and care of the three deceased, these are not matters of peer review. Once informed of the factual findings, by the authors, as to care, assessment or diagnosis and the treatment received, and the comments and recommendations on the policies and practices of the hospital, it will then be for the families to review this information with such persons in whom they have confidence. If this information is less than what they believe they are entitled to receive, they will no doubt wish to review this circumstance with persons and advisers of their own choosing. Similarly, to the extent, if any, participants in the review process believe they were assured of confidentiality, beyond that afforded by the form of the report here ordered to be disclosed, it will be for them, if they wish, to review their circumstance with persons and advisers of their choosing. J. Sydney, Nova Scotia
Following three patient suicides at the Cape Breton Regional Hospital, the hospital, in response to concerns and questions from family members, retained two psychiatrists to review the cases, the roles and responsibilities of individuals involved in the cases, patient records and hospital policies and practices. At the end of the review they were to provide a written report to the hospital's Chief Executive Officer. The hospital staff participating in the investigation and review were advised that their information would be treated as part of a 'peer review' and therefore confidential. Upon receipt of the report the hospital, as a result, refused to disclose the report to the families. An application pursuant to the Freedom of Information and Protection of Privacy Act was made by an M.L.A., who sought for the disclosure of the report and for a review of the hospital's decision to not release the report. The hospital decided to release the full report. The appellant employees appealed the decision of the hospital, claiming that they had been assured confidentiality. Allowing the appeal, that the disclosure of personal information consisting of personal recommendations or evaluations, character references, or personal evaluations by the appellants and other hospital staff are presumed under s. 20(3)(g) of the Act to be an unreasonable invasion of a third party's personal privacy. Under s. 20(1) the hospital is required to refuse to disclose this information. It necessarily follows that recommendations in the report founded upon such information is also presumed to be an unreasonable invasion of privacy and is likewise not to be disclosed. The remainder of the report is disclose able.