Health agencies held to account by their policies

By Staff

It's vital for health-sector organizations to develop – and keep current – policies that can stand up against the scrutiny of outside agencies because their own guidelines can be used to hold them to account, says Toronto health lawyer Kate Dewhirst.

"Their own policies may be used in coroner's inquests, regulatory hearings and they may be used as part of accreditation," she tells "An organization's written policies are almost always used as key pieces of evidence in litigation and reviewing policies is one of the easiest ways in which people can compare what happened to what was supposed to happen."

Dewhirst, principal at Kate Dewhirst Health Law, gives the example of a coroner's inquest and how a hospital's policies may be placed under the microscope for review during that process and the question is often asked whether the staff followed the hospital policies that were in place.

"They're critiqued in that public forum and it can be very difficult if staff are asked why they didn't follow the policy and they say no one knew about the policy or they say it wasn't a practical policy and no one ever followed it," she says.

Such answers, she says "may put doubt in peoples' minds about the quality of care provided by an organization and may suggest that procedural mistakes led to someone's harm or death."

Dewhirst is frequently asked to help health organizations write or review their policies. And in working with hospitals, family health teams, community health centres and long-term care homes over the years, she has developed a list of top-10 tips for avoiding mistakes when writing, revising and disseminating organizational policies.

Institutional or organizational policies can cover any number of areas, including providing direction to clinical staff on how to provide service to their patients and can outline expectations for how they do their work. There can also be human-resource policies, whistle-blower policies, IT policies, finance policies and others.

First of all, Dewhirst urges her health-sector clients to keep track of and maintain mandatory policies, as well as to highlight legislative, regulatory, accreditation or contractually mandatory policies.

"Sometimes in an effort to streamline their policies, health-care organizations accidentally delete key policies that should have been maintained," she says.

Dewhirst notes that some policies are mandatory because of legislative requirements (such as, under the Occupational Health and Safety Act in Ontario, any employer with six or more workers must prepare and review at least annually a written occupational health and safety policy).

Second, Dewhirst says it's important for organizations to write their policies with their audience in mind.

"Policies written primarily for the public are usually to educate in general terms whereas staff policies should provide sufficient procedural details to ensure your staff members understand your expectations and can properly discharge their duties," she says.

Third, she urges organizations to avoid merely replicating or paraphrasing the law. Policies should help ensure staff understand their obligations and how the organization expects staff to act to comply with the law.

Fourthly, she stresses the importance for health-sector organizations to develop policies that accurately reflect an organization’s actual practices and the minimum expectations of staff.

In addition, Dewhirst says the importance of using consistent language cannot be understated.

She also points to the need for including consequences for a policy breach.

Her seventh tip for writing health-sector policy is never to use a "zero-tolerance" approach by using words like "always" or "never" because it effectively can "tie their hands.

"That all-or-nothing language can be problematic because then you are held to that standard," she says. "With a zero-tolerance approach, you cannot exercise discretion to consider unique or mitigating circumstances. You give away all your decision-making power to your policy."

Dewhirst says it's not enough for organizations to write effective policy. The information has to be disseminated properly.

"Even the courts have criticized health-care organizations for failure to disseminate policies, as was the case in Comeau v. Saint John Regional Hospital a few years ago – the last thing you want is for someone to come to harm because you did not make a key policy known," she says.

Dewhirst encourages organizations to review their policies every three or four years to respond to changes in legislation, regulatory standards or accreditation standards, recommendations from insurers or professional associations, as well as suggestions from staff, patients or the public and audits of compliance with policy implications, litigation and coroners’ inquest outcomes.

She also says it's important for organizations to archive old versions of policies as they may be needed when responding to future litigation, complaints or for research purposes.

"If the policy is the stick by which everything is measured, it's an easy-to-demonstrate tool that an organization – or its staff – failed in a particular circumstance," she says.

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