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Safe Space Consultation - follow up
The Department of Health has published the outcome of the Consultation, Providing a ‘Safe Space’ in Healthcare Safety Investigations, which it launched in October 2016.
The Consultation proposed the creation of a statutory ‘safe space’, which would enable NHS staff to speak openly during the investigations which follow a mistake involving harm to a patient. The ‘safe space’ would be protected by a ban on any disclosure of information obtained during the investigation, such as witness statements, recordings of interviews with staff and notes taken by the investigator. Exceptions were envisaged for circumstances where there was an urgent need to share information to prevent further deliberate harm to a patient, in a case of criminal behaviour or where disclosure was ordered by the High Court.
The ‘safe space’ was proposed as one of a series of measures intended to transform the NHS into a learning organisation. If the NHS is to reduce the number of errors and claims, it has to be willing and able to learn from its mistakes. The Secretary of State for Health, Jeremy Hunt, believes that the NHS is held back from achieving this objective by the blame culture which currently pervades the system. In the consultation, he describes it as “a culture within the NHS which deters staff from raising serious and sensitive concerns and which not infrequently has negative consequences for those brave enough to raise them.”
When the Consultation was launched, I raised my concerns about whether new rights to ‘safe space’ for NHS staff in healthcare investigations would erode the rights of injured patients to access information about their own care which forms the subject of the investigation. The consultation had suggested that sharing information with the patients concerned could be regarded as a negation of ‘safe space’, a situation which would lead to an unacceptable erosion of patients’ rights to information relating to their own treatment, in order to protect the NHS staff who were at fault. Whilst it would undoubtedly be easier to discuss mistakes in a patient’s care, knowing that the patient will never see the information, an injured patient or bereaved relative cannot simply be shut out of the investigation process. The mistake has caused them injury and the duty of candour gives them the right to know. Patients are currently entitled to know what went wrong with their care and to see evidence of accountability at work through the NHS complaints procedure and the Serious Incident Framework. In addition, many injured patients gain reassurance from knowing that NHS staff as individuals, and the organisation as a whole, will learn from their mistakes and that retraining is taking place to avoid the same mistake happening to someone else.
The Department of Health has now published the outcome to the consultation
For the time being, ‘safe space’ protection will be restricted to investigations carried out by the HSIB, Healthcare Safety Investigation Branch. HSIB was set up in 2016 and will be operational from April 2017, offering guidance at national level to NHS organisations on how to perform their own investigations. HSIB will also carry out its own healthcare investigations – within a ‘safe space’ framework.
At this stage, the Department of Health will not be providing ‘safe space’ protection to healthcare safety investigations carried out at local level. This is currently where the majority of individual patient healthcare safety investigations take place. In considering whether ‘safe space’ should be used by local NHS organisations, such as NHS Trusts and NHS Foundation Trusts, the consultation outcome referred to “general recognition that the standard of some investigations in the NHS was poor and there were reservations about whether this approach would help with the underlying problems with NHS investigations.”
It was recognised that neither patients nor NHS staff trusted the NHS locally to use the safe space procedure fairly or properly. Patients who responded to the consultation thought that ‘safe space’ protection would be used to avoid accountability, whereas NHS staff saw it as a way for their employers to force self-incrimination. For this reason, local NHS investigations will continue to operate without ‘safe space’ protection.
The Department of Health says that HSIB will, therefore, be given time to build up trust in creating a learning culture, demonstrating a leadership role in which its credibility will rest on its ability to do the job well.
On extending the ‘safe space’ to local NHS organisations – a scenario which remains a possibility for the foreseeable future – the Department of Health has set out three conditions which would need to be satisfied before a local NHS provider will be empowered to use ‘safe space’ conditions for its healthcare safety investigations:
- The local NHS organisation must initially use it in safety cases in other NHS-funded organisations as invited external reviewers
- They must meet additional criteria, such as training or accreditation, to be agreed with HSIB
- There will be further consultation with stakeholders before implementation
I try to assist lawyers by explaining, in clear and comprehensible terms, what the relevant issues are and where the strengths and weaknesses of the case lie.
DR PETER DEAR