Readers will recall the proposed developments to the Healthcare Safety Investigation Branch referred to in our earlier blogs.
The joint House of Lords and House of Commons Committee on the draft Health Service Safety Investigations Bill published their report: Draft Health Service Safety Investigations Bill: A new capability for investigating patient safety incidents on 2 August 2018.
They were given the task of examining the draft legislation to establish HSSIB. They held nine evidence sessions and received 52 responses to a public call for evidence. We were one of only two law firms who submitted written evidence to the Committee.
For a quick read, we would refer you to the summary at pages 5-7 and to the conclusions and recommendations at pages 75-86.
Much of the focus of the report is on the concept of “safe space”.
The term itself is not used in the Bill but is widely understood to mean the prohibition of the disclosure of any information, document, equipment, or other item held by HSSIB in connection with an investigation, apart from in certain limited circumstances.
It was designed to encourage staff to speak freely during the course of an investigation in the knowledge that information they provided would not be passed on unless an exception applied. We commented that the risk of criminal liability and regulatory referral would still result in individuals being wary of speaking freely. It is also worth noting that the committee thought that there would be a power to compel individuals to – something that, if taken forward, would have a significant impact on an individual’s right to silence.
The Committee made the following conclusions and recommendations in connection with “safe space”:
- The Committee were supportive of safe space to facilitate gathering evidence for HSSIB’s ‘no blame’ investigations describing it as an “innovation” for the healthcare sector.
- A healthcare professional’s duty of candour is not diluted by the safe space.
- HSSIB’s purpose is not to provide a hiding place for uncomfortable truths but, in the interests of patient safety, to provide the greatest possible assurance that its investigations will have no negative consequences for participants.
- However the committee expect HSSIB to provide sufficient detail in its reports for patients and their families to understand what happened, what went wrong, why and what should be done to make sure it does not happen again.
- They recommend that the concept is extended to cover any information and material disclosed to HSSIB.
- HSSIB should only be expected to disclose such information as is necessary to address a serious and continuing risk to the safety of a patient or the public.
- The High Court should only be able to order disclosure if it determines that the interests of justice outweigh any adverse impact on the Secretary of State to improve the safety of NHS services or people’s willingness to participate in future investigations. They state that this should only be in the most exceptional circumstances.
- They recommend that the prohibition on disclosure apply equally to coroners.
- There is no difficulty with coroners using reports from HSSIB and, where appropriate, hearing from its investigators to avoid duplication of investigations.
- Any evidence given to the coroner should not become a back door means of using in court information that was shared in the “safe space”.
- They raised with the Government the question of the Bill’s compatibility with data protection legislation. They stated that there should be no question that “safe space” could be subject to any data access or freedom of information requests. They were satisfied with the Government’s assurance that “safe space” information would be exempt from access requests under data protection legislation and invited the Government to give them the same assurance in relation to FOI requests.
- They do not support the accreditation of Trusts to conduct safe space investigations due to concerns over conflicts of interest. They describe it as “wholly misconceived”.
- If “safe space” investigations prove as valuable as expected and there is demand for more capacity then the Government would have to choose whether or not to grow the capacity of HSSIB – there is no other option.
So a whole myriad of public policy issues clashing with each other here!
Other key points to note:
- There are 24,000 incidents in the NHS each year.
- It is proposed that HSSIB is set up as a non-departmental public body (in contrast to HSIB which is part of NHS Improvement).
- HSSIB should not on its own be expected to achieve culture change.
- HSSIB can influence the development of just culture.
- The additional 1000 maternity cases that HSIB were recently asked to undertake misconstrues the function of statutory HSSIB. Conduct of those should be recognised as the responsibility of NHS Improvement.
- HSSIB should extend beyond just NHS funded services to the whole healthcare system.
- The Government should undertake a formal consultation to explore how private providers can make a proportionate contribution to patient safety work undertaken by HSSIB.
- HSSIB investigations must not exist in a silo – they should be able to explore all aspects of a patient’s journey and the interaction between services.
- There is no need for definition of a qualifying incident – the Bill is sufficiently flexible to enable HSSIB to investigate any patient safety issue.
- Whilst co-operation between HSSIB and other investigatory bodies is essential, the committee were concerned about the implications of imposing a statutory duty to co-operate.
- There should, however, be a power to compel individuals - to make clear that assisting is not an option. Further non-compliance should be made a criminal offence punishable by a fine or imprisonment of up to three months.
- Little justification for requiring HSSIB to obtain a warrant before entering premises (other than residential premises).
- CQC should incorporate implementation of HSSIB recommendations into its quality standards.
- HSSIB should decide its priorities objectively without input from the Secretary of State.
- There should be a post-legislative review three years after HSSIB starts work.