Government commits to developing "safe space"

Since the Government published the draft Health Service Safety Investigations Bill in September 2017, the Bill has been scrutinised by a joint committee of MPs and peers. Their report was published in August 2018 and the Government’s response to the report has now been published.

A brief recap: What does the Bill say?

The Bill sets out provisions to establish a new, fully independent body to investigate healthcare safety incidents in the NHS in England. The Bill also provides for the creation of a "safe space" investigation approach to ensure that information provided as part of the investigation will only be disclosed in certain limited circumstances or by a court order.

So, what are the Government’s responses to the committee’s recommendations

The Government’s responses are grouped under six themes. In this article, we look at the five themes that will be of most interest to health and care professionals, providers, commissioners and those operating in the independent health sector.

Accreditation of NHS trusts to carry our "safe space" investigations

The Government accepts the extension of "safe space" investigations to local trusts should be removed from the draft Bill. The policy intent behind the Government’s proposals was to improve local safety investigations and spread a "just culture" of learning within the NHS. The Government will, therefore, include in the next iteration of the Bill provision to extend the Healthcare Safety Investigation Branch’s role to that of “promoting better standards for local safety investigations and improving their quality and effectiveness through advice, guidance and training”.

Maternity investigations

In April 2018, the former Secretary of State ordered that the Healthcare Safety Investigation Branch investigate 1000 maternity cases per year as part of the National Maternity Safety Strategy. Their purpose is to provide high quality, standardised investigations of maternity incidents to uncover the learning from them and to provide families with a full account of what happened.

The Government rejected the committee’s recommendation that the conduct of the maternity investigations should be recognised as the responsibility of NHS Improvement. However they will ensure the revised Bill clearly articulates the distinction between the maternity investigation programme (local investigations of single incidents without “safe space”) and the national high level investigations. The Government has specifically stated that there is a real need to improve the quality of maternity investigations within the NHS.

In their response, they say: “We do not believe it would be appropriate for the investigation programme to transfer to NHS Improvement, which would not have the expertise or operational independence to carry out these specialised investigations effectively”. 

Remit of the new body

The Government has agreed to give further consideration to the committee’s recommendation to extend the remit of the new body to investigate independently funded healthcare in England and how this might be funded.

They agree with the committee that HSIB should not be tasked with investigating social care but that it should be able to investigate all aspects of the health care pathway relating to patient safety investigation, including interactions with social care. 

"Safe space"

The group of recommendations around the arrangements for "safe space" are largely accepted. Specifically, the Government agrees on the need to engage further with patients, families and the public on the role, purpose and value of safe space investigations and, the need to be clear about the application of the prohibition on disclosure, including how this is best articulated in legislation.

Some specific recommendations on "safe space"

  • Extending the "safe space" protections to cover information provided to HSIB for the purposes of promoting patient safety, whether or not it leads to an investigation.
  • Safe space prohibition threshold must be changed to a definition which focuses on the rationale for disclosure, such as “a serious and continuing safety risk”.
  • Sharing "safety benefit" information consideration will be given to how best to amend the Bill to allow disclosure of statements or draft reports during an investigation which may be a benefit to patient safety.
  • Information prohibited from disclosure should be exempt from Freedom of Information Act requests under section 44 (1)(a).
  • The Government will engage with the Parliamentary and Health Service Ombudsman with regard to the committee’s recommendation that they be prohibited from having access to "safe space" information. The Government want to understand what the impact would be on the PHSO’s ability to hold public bodies to account and to effectively investigate healthcare matters if it were unable to obtain information held by the new body in "safe space" without applying for a court order.
  • Coroners and the prohibition on disclosure of "safe space" information. Government will engage with the Chief Coroner to understand the impact on coroners’ ability to investigate effectively deaths that may be related to healthcare, if they are unable to access information held in "safe space" by the new body.

Investigative powers: what are they?

  • Powers of interview. The Government will consider whether the new body will have powers to compel witnesses to attend interviews and, if so, in what circumstances. Similarly, they will consider arrangements for interviewing witnesses and allowing witnesses to be accompanied.
  • Informing participants. The Government does not believe that it is necessary to mandate the new body to inform all parties in advance of every investigation. They will however consider this further in guidance.
  • Sanctions for non-compliance will be further reviewed by government, including whether individuals should be subject to criminal or civil penalties.
  • Powers of Entry. The Government will be reviewing this in respect of the need for warrants.

Now what’s next?

Further work will now take place in revising the draft bill in line with the Government’s response, and they will bring forward a revised Bill “when parliamentary time allows”. 

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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