Medical Standards Committees and privilege

During the course of these proceedings, it became apparent that some of the issues under review had been considered by medical standards committees established by the HSC, as well as by the Manitoba College of Physicians and Surgeons.

Medical standards committees enjoy some immunity from having to reveal their proceedings pursuant to section 9 of the Manitoba Evidence Act. That provision states:

Evidence as to proceedings of hospital committee, etc., not compellable

9(1) A witness in any legal proceeding, whether a party thereto or not, is excused from answering any question as to any proceedings before, or producing any report, statement, memorandum, recommendation, document, or information of, or made by, a committee to which this subsection applies and that is used in the course of, or arising out of, any study, research, or program carried on by a hospital or any such committee for the purpose of medical education or improvement in medical or hospital care or practice.

Application of subsec. (1)

9(2) Subsection (1) applies to all of the committees hereinafter mentioned; namely:

(a) a standards committee appointed under section 26 of The Hospitals Act;

(b) a research committee of a hospital;

(c) a medical staff committee established for the purpose of studying or evaluating medical practice in a hospital; and

(d) a medical research committee recognized by the Minister of Health and approved for the purpose of this section by a regulation made by him.

Application of The Regulations Act

9(3) The Regulations Act applies to a regulation made under clause (2)(d).

Exception

9(4) Subsection (1) does not apply to original medical and hospital records pertaining to a patient.

Members of committee, etc., not excused generally

9(5) Notwithstanding that a witness in any legal proceeding is or has been a member of, or has participated in the activities of, or has made a report, statement, memorandum, or recommendation to, or has provided information to, a committee to which subsection (1) applies, he is not, subject to subsection (1), excused from answering any question or producing any document that he is otherwise bound to answer or produce.

Definitions

9(6) In this section

"legal proceeding" in addition to having the meaning given to that expression under section 1, includes an action or proceeding for the imposition of punishment by fine, penalty, or imprisonment to enforce any regulation made under an Act of the Legislature and any proceeding before any tribunal, board, or commission;

"witness" in addition to the ordinary meaning thereof, includes every person who, in the course of a legal proceeding, is examined viva voce for discovery or is cross-examined upon an affidavit made by him, or answers any interrogatories or makes an affidavit as to documents, or is called upon to answer any question or produce any document, whether under oath or not.

Protection from liability

10 Neither

(a) the disclosure of any information or of any document or anything therein, or the submission of any report, statement, memorandum, or recommendation, to any committee to which subsection 9(1) applies, for the purpose of its being used in the course of any study, research, or program carried on by a hospital or any such committee for the purpose of medical education or improvement in medical or hospital care or practice; nor

(b) the disclosure of any information, or of any document or anything therein, that arises out of any such study, research, or program;

raises or creates any liability on the part of the person making the disclosure or submission.

Counsel for some of the families wished to ask some of the members of those standards committees questions about committee proceedings. A considerable amount of time was devoted to argument, and in January 1998, a decision was rendered on the issue. Essentially I ruled that an inquest judge had authority to inquire into proceedings of medical standards committees if their proceedings are relevant to the issues being inquired into. However, I declined to make any such inquiries in view of the lateness of the motion, and the fact that much of the relevant evidence could be otherwise obtained. That decision is filed as part of the record of these proceedings.