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Published 3 May 2017
The Department of Health has recently published the outcome of the 'safe space' consultation it ran at the end of last year about disclosure of information obtained as part of NHS patient safety incident investigations.
The consultation was proposing a statutory prohibition on disclosure of material generated as part of NHS incident investigations except in very limited circumstances, mirroring how air accident investigations are carried out.
However, there were clear tensions between this 'safe space' concept and the general shift towards ever-greater transparency in the NHS.
How have the 'safe space' proposals been received? Overall, the idea has been given the 'thumbs down' - especially by patients/families who have expressed concerns that this could be used as a way of avoiding accountability.
The idea is therefore essentially being shelved for the time being.
In this briefing we look at the outcome of the consultation and what is likely to happen next.
What was being proposed in the consultation was a change in the law to introduce a statutory prohibition on disclosure of material produced as part of patient safety incident investigations carried out by NHS Trusts/other providers of NHS services, or by the new Healthcare Safety Investigation Branch (HSIB).
This would have meant information relating to Trust incident investigations, such as staff witness statements and interview notes/recordings being protected from disclosure to anyone outside the investigation, except with an order from the High Court, or if the disclosure fell within certain narrow exemptions - e.g. relating to immediate patient safety risks.
The theory behind this proposal was that staff involved in incident investigations are more likely to speak candidly about what happened and why, if they can be reassured that material generated as part of that process cannot be used against them in some way. The consultation suggested that this should, in turn, reassure patients/families that incidents will be properly investigated and lessons learned.
The idea was to mirror what happens in the airline industry, where those providing information to air accident investigators do so confidentially, with the output from investigations being limited to safety recommendations back to the industry.
The concept of applying 'safe space' principles to investigations carried out by the HSIB (likely to be around 30 investigations per year across the NHS) received a reasonable level of support overall.
However, the proposed creation of a statutory 'safe space' for local NHS Trust investigations was not supported by the majority of respondents, with the idea receiving a lukewarm reception from NHS staff/organisations and a distinctly frosty one from patients/families and their representatives.
According to the Department of Health's summary of the consultation responses, both patients and staff have concerns about whether Trusts would use the 'safe space' concept properly/fairly - e.g. patients saw it as a way to avoid accountability, while staff saw it as a potential way for their employers to force self-incrimination. Particular concern was expressed by patients/families who felt the 'safe space' proposal would contravene the ethos of the Duty of Candour and that needing a High Court order to obtain disclosure would be a barrier to getting at the truth (and an expensive one at that), potentially creating a 'vast new legal industry'.
It seems that professional regulators (whose current disclosure powers would be curtailed by the proposed statutory prohibition) have also raised concerns, with one professional regulator, for example, expressing the view that: "It would have a negative effect on fitness to practise investigations and ultimately on patient safety".
Reflecting this general lack of enthusiasm for the idea, the Department of Health has concluded that, whilst 'safe space' principles will apply to HSIB investigations via the existing HSIB Directions, any extension of those principles to local NHS Trust investigations is premature at this stage.
The idea of a statutory 'safe space' for local NHS incident investigations is therefore off the table for the time being.
For now, it will be business as usual for NHS Trusts. Patient safety investigations should continue to be carried out in accordance with the national Serious Incident Framework and there will be no change to the usual rules around disclosure of materials generated as part of incident investigations, or to the powers of regulators/coroners to request disclosure of such information.
Alongside the Serious Incident Framework, Trusts must also now comply with the new national Learning from Deaths Guidance (see our previous briefing on this), which requires Trusts to carry out Case Record Reviews in relation to a wide range of patient deaths and highlights the importance of ensuring that families/carers are fully involved in the investigation process.
There will similarly be no significant impact for the new Healthcare Safety Investigation Branch (which became operational on 1 April 2017) because the Directions governing the HSIB already contain 'safe space' principles for the HSIB to work to. These stop short of a general prohibition on disclosure of materials generated as part of HSIB investigations, and legislation would be required to introduce such a prohibition. Whilst the government 'remains open' to the option of such legislation, the plan is to wait and see first how things go with the HSIB once their investigations are up and running.
The idea of a statutory 'safe space' for local NHS incident investigations could be resurrected at some point in the future, but not without further consultation.
Meanwhile, the HSIB's existing 'safe space' principles will be applied once it starts carrying out its investigations. How this works in practice for HSIB investigations will influence what happens further down the line with potentially extending the 'safe space' concept to the wider NHS.
The general consensus is that there is still much room for improvement in local NHS incident investigations, and the expectation is that the HSIB will play a strategic role in helping to bring about that improvement going forward.
Our national team of healthcare regulatory lawyers has extensive experience of supporting and advising health and social care providers on a wide range of matters relating to incident investigations, including:
If you need advice in relation to an incident investigation or related matters, please contact Peter Merchant on: +44 (0)113 2514806 or email@example.com.
+44 (0)113 251 4806
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