Parliamentary Joint Committee recommends safe space for HSSIB but not for NHS Trusts

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The Parliamentary Joint Committee has reported on the draft Health Service Safety Investigations Bill, which sets out the government’s plans for an independent Health Service Safety Investigations Body (HSSIB) to carry out ‘safe space’ patient safety investigations.

Why is the HSSIB needed?

The report introduces the need for HSSIB against a background of ‘commonplace and widespread’ avoidable risks to patient safety in UK healthcare, causing 12,000 avoidable deaths, and 1.4 million incidents, of which 24,000 are serious, each year.

Recent public enquiries...

“...have revealed a system that is slow to detect and learn from mistakes and individuals who have suffered harm feel that the procedures for investigating incidents are over-complicated, ineffective and, in some cases, are designed to protect clinical staff and hospitals rather than discover the truth. At the same time, staff believe that they are unfairly blamed when things go wrong for reasons outside their control.”

In April 2017, the government set up the Healthcare Safety Investigation Branch (‘HSIB’), an NHS-Improvement-controlled branch of the Department of Health (DHSC), to investigate a small number of patient safety incidents, to encourage learning from failures and to improve patient safety. When the House of Commons Public Administration Select Committee (PASC) raised concerns that HSIB lacks the independence and power to carry out effective investigations, new legislation was drafted to create an independent HSSIB, accountable directly to Parliament, whose investigations would have ‘safe space’ protection from disclosure.

How will the HSSIB operate?

HSSIB will be an independent organisation empowered to investigate serious patient safety incidents to improve the safety of patients receiving NHS and private healthcare in England. It will ‘prioritise the consideration of human factors as causes of the failures it identifies’ but won’t apportion blame. 

Operating completely independently from NHS or government, HSSIB’s reports are intended to be comprehensive, with no ‘no go’ areas, transparent and impartial, an intention upheld by the Committee when it asked the government to remove the clause giving the Secretary of State power to influence HSSIB investigations. The report says HSSIB must be accountable directly to Parliament, with HSSIB’s chair and chief investigator both subject to pre-appointment scrutiny by the Commons Health and Social Care Committee, which will also review the quality of HSSIB’s investigations and reports and their effect on patient safety. The legal framework for HSSIB must also undergo post-legislative review within three years of HSSIB starting work.

HSSIB investigations will be protected by ‘safe space’

A primary purpose of the Bill is to give HSSIB statutory power to investigate within ‘safe space’. The Committee agreed that HSSIB investigations must have ‘safe space’ protection. Aside from HSSIB investigations, health professionals remain bound by their professional (regulated) duty of candour and their legal duty (enforced by the Care Quality Commission (CQC) ) to apologise and inform patients who have been harmed by their care, but the Committee recognised that in practise, healthcare professionals don’t speak out about safety issues for reasons including deference to senior staff or management, fear of bullying or damage to their career. Given HSSIB’s mandate to improve safety by investigating the cause of common failings, the assurance of a ‘safe space’ in which anything said will not be disclosed was regarded as vital for health professionals to speak freely to HSSIB. The Committee recommended that ‘safe space’ protection be extended to any information (other than that which would be disclosable in any event by the Secretary of State or an NHS body) given to HSSIB to promote patient safety, whether or not that information results in an investigation.

The Committee recommended, as the ‘quid pro quo’ for safe space, that HSSIB must have ‘strong powers of coercion’ to compel individuals to cooperate with investigations. Non-compliance should be a criminal offence, punishable by a fine or up to three months’ imprisonment, as with safety investigations in other safety-critical industries.

HSSIB should be permitted to disclose minimal necessary information to the police, regulators or trusts where there is a serious and continuing risk to the safety of a patient or to the public to enable those authorities to start their own enquiries. The  Parliamentary Commissioner for Administration and the Health Service Commissioner for England (Ombudsman) are both expressly excluded from this exception. HSSIB can (but doesn’t have to) release factual information obtained during an investigation wherever necessary if to do so will benefit patient safety.

HSSIB will not affect other investigations or disclosure obligations

The draft Bill will not restrict access to any information which is currently available. All existing investigations (including those by NHS trusts, professional regulators, CQC and the Health Service Ombudsman) will still take place and focus on assessing responsibility and accountability for errors with patients’ maintaining their existing rights to disclosure. Only HSSIB’s additional information is protected from disclosure, including access requests under data protection law. The Committee emphasised that the healthcare professional’s duty of candour is not diluted by ‘safe space’ in any way and recommended that HSSIB must inform anyone potentially harmed by a patient safety incident before deciding whether to investigate. Contributors to HSSIB investigations, e.g. patients, won’t be barred from sharing with others the evidence they gave to HSSIB.

The Committee affirmed its belief that there is nothing unreasonable about injured patients seeking compensation. HSSIB should not hinder patients’ and their families’ ability to seek compensation. HSSIB reports are not individual patient incident driven. They are not part of the NHS complaints system. Patients will not receive new evidence obtained by HSSIB but HSSIB’s reports must be sufficiently detailed for patients and their families to understand clearly what happened, what went wrong, why, and what should be done to ensure it doesn’t happen again. Before publication, HSSIB must send a draft report to all involved in the investigation for their comments. HSSIB’s published reports may be used in the Coroner’s court and as the basis for preparing a legal claim. 

Parliamentary Joint Committee rejects NHS trust ‘safe space’ powers as wholly misconceived

Having heard evidence which described NHS trusts’ handling of local investigations as “quite amateurish”, “patchy, variable and sometimes not very good,” and of a low standard, it is not surprising that the Committee rejected the government’s proposal that HSSIB accredit some NHS trusts to carry out their own and other trusts’ investigations under ‘safe space’ as wholly misconceived, representing too great a conflict of interest for the NHS employer who might be subject to civil or criminal proceedings, and undermining public confidence that ‘safe space’ is used in the interests of patient safety. The Committee stated that this proposal must be dropped and emphasised that all their recommendations in relation to HSSIB and safe space were based on the government removing NHS trusts’ accreditation from the draft Bill. 

As specialists in clinical negligence claims arising from negligently caused severe injury, Boyes Turner welcome the clarity that the Parliamentary Joint Committee’s recommendations bring to the HSSIB’s purpose, operation and accountability and the reassurance that the Committee’s vision for ‘safe space’ investigations does not interfere with patients’ existing rights to disclosure of information and records relating to their medical care.

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