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Published 2 August 2018
As the national drive to improve patient safety continues apace, moves to create a statutory patient safety investigations system through the Health Service Safety Investigations Body (HSSIB) have taken another step forward with the publication of a Joint Committee report on the Draft Health Service Safety Investigations Bill.
The three main pillars of the draft bill - (a) setting up a new, independent statutory patient safety investigations body (HSSIB), (b) creating a 'safe space' for those investigations by protecting information from disclosure and (c) accrediting some Trusts to carry out 'safe space' investigations themselves - have come under close scrutiny by the Joint Committee, with some game-changing recommendations now made.
Headline recommendations for changes to the draft bill include:
We look at what the Joint Committee has said and what happens next.
The Draft Health Service Safety Investigations Bill was published in September 2017 and its central provisions are:
As part of pre-legislative scrutiny of the draft bill, a Parliamentary Joint Committee (consisting members of the House of Lords and House of Commons) has heard evidence from a wide range of sector contributors, exploring key elements of the wording and impact of the draft bill. DAC Beachcroft contributed evidence via Clinical Risk partner, Matthew McGrath on a number of areas, in addition to written evidence on a broad range of legal and strategic issues raised by the committee.
The Joint Committee has today published its report delivering findings on whether the bill is likely to achieve its objective of improving patient safety and how well it would work in practice.
Questions explored by the Joint Committee included:
The principle of establishing the HSSIB to improve patient safety by conducting 'no blame' investigations into incidents selected for their learning potential is supported by the Joint Committee, although its report makes a number of recommendations about changes to the remit and powers of the proposed HSSIB.
A key focus of the Joint Committee report is on the proposed 'safe space' provisions which would protect information provided to HSSIB from disclosure except in limited circumstances to be set out in the legislation.
Despite concerns expressed by various organisations that the 'safe space' concept will hide information which would otherwise be disclosed, the Joint Committee supports this as being an essential component of the proposed new system. Its report emphasises that HSSIB investigations will be additional to - not a replacement for - the investigations already carried out by others (e.g. Trusts, CQC and the Health Service Ombudsman), which 'safe space' will have no impact on. Linked with this, the Joint Committee's view is that the Duty of Candour is not diluted by the HSSIB's 'safe space' provisions in any way, despite the risk of tension between being open in one setting and being protected in another.
The Joint Committee also asked itself: 'How safe is the safe space?' and has identified recommendations for changes to the draft bill which would further strengthen this, as follows:
What about the impact of this in the context of clinical negligence claims? The report makes clear that the restricted disclosure under 'safe space' principles attaches only to HSSIB, and all contributors to the investigation (e.g. patients and healthcare professionals) can share the evidence they provided if they so wish. Whilst HSSIB reports would not be available to use in court under these provisions, the Joint Committee states that this does not prevent use of the knowledge gained from the report to 'inform the framing of a case for legal redress', which is of course to be expected. We suspect, however, that there will continue to be much debate on this issue as the bill progresses through the legislative process.
The report says that many who gave evidence to the Joint Committee raised serious concerns about the idea of Trusts being accredited by HSSIB to carry out 'safe space' investigations into their own and other Trusts.
Taking into account the potential for conflicts of interest and the difficulties around objectivity, this proposal is described as 'wholly misconceived' and the Joint Committee recommends removing it from the bill completely.
However, the Joint Committee does think HSSIB should be funded to help improve the quality of investigations conducted across the health system - e.g. by training local investigators and supporting the development of courses/exams/qualifications to develop a profession of 'medical investigators'.
As the Joint Committee says, its report is just the start of parliamentary and public debate on this.
The next step will be for the government to consider the Joint Committee's recommendations (which it may or may not accept) and to produce a further version of the bill which will then be formally laid before Parliament for further scrutiny.
Our national teams of healthcare regulatory and clinical risk lawyers have extensive experience of supporting and advising health and social care providers on a wide range of matters relating to patient safety, and the impact of the new HSSIB, including:
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