Solicitor Sarah White considers the controversial Government proposal for information from hospital staff obtained during health service investigations to be kept confidential by default.
By Sarah White
The Department of Health said that the aim of this proposal was to improve patient safety by encouraging a culture of learning within the NHS. They want to encourage staff to learn from incidents without the fear of any backlash that providing such information could have on them. In the consultation document they stated that the aim was as follows:
“to create a balanced safe space and to make sure the proposal reassures staff that the information they provide will not be passed on; and also reassures patients and families that they will be given the full facts of their, or their loved ones’, care.”
It was proposed that the ‘safe space’ provisions would apply to local investigations carried out by NHS Trusts/ Foundation Trusts and other providers of NHS funded health services under the Serious Incident Framework as well as investigations carried out by the newly set up Healthcare Safety Investigation Branch (HSIB).
HSIB is a new organisation that became operational on 1st April 2017. It is funded by the Department of Health but operates independently to investigate up to 30 healthcare safety incidents per year in order to provide safety recommendations without apportioning blame.
Why the proposal is not in the interests of patients and their families
This proposal has, unsurprisingly, been met with strong opposition from patient support groups such as AvMA (Action against Medical Accidents).
AvMA’s Chief Executive, Peter Walsh, stated:
“This proposal is misguided and very dangerous. We fully support initiatives to protect all staff including whistleblowers from inappropriate or disproportionate blame from employers or regulators, which is what they tell us they most fear. However, allowing the covering up of the full truth about what happens in patients’ treatment from them or their family is unethical and in direct contradiction to the NHS Constitution and the statutory Duty of Candour brought in just 2 years ago”
Whilst, in my opinion, NHS staff do need to be protected and it is obviously beneficial if a real culture of learning from mistakes is instilled within the NHS, this proposal fundamentally goes against the interests of patients and their families. Information relating directly to their treatment being withheld from them is completely wrong.
Inequality of Arms?
It feels to me as though the balance would very much be in the favour of the NHS Trust and their employees to the detriment of the individual patient. A Trust would be able to choose to withhold relevant information if they believed this was important for providing a ‘safe space’ for health professionals regardless of whether it was in the best interests of the patients and so a complete inequality of arms.
The Department of Health stated that the ‘safe space ‘proposal was not intended to impact on the Duty of Candour, (a legal duty on NHS care providers to inform and apologise to patients if there have been mistakes in their care that have led to significant harm), however I strongly agree with Peter Walsh in this regard. In my view it is very hard to see how there could not be a clash between ‘safe space’ and Duty of Candour.
As well as the major issues with the proposal highlighted above I can also see how these proposals could have a huge practical impact on clients wishing to investigate a potential clinical negligence claim. When investigating a potential claim we obtain various documents on behalf of our clients including complaints correspondence, medical records and records of internal investigations that have taken place within the NHS Trust.
A review of those documents enables us to advise a client as to the merits of them pursuing a claim. These proposals would have a major impact on this insofar as it is envisaged that information obtained during the course of these ‘safe space’ investigations would not be disclosable under the Freedom of Information Act 2000 or the Data Protection Act 1998. If this was the case, we would therefore not be party to all of the relevant information when advising a client on the prospects of them successfully pursuing a claim. Again, this could put individuals at a huge disadvantage.
Outcome of consultation
In April 2017 the outcome of the consultation was published. It is very encouraging to see that the Department of Health has dropped the ‘safe space’ proposal regarding local investigations. It is however disappointing to note that it will, for the moment, be applied in HSIB Investigations.
The Department of Health is still considering extending this to local investigations in the future, which remains a real concern as far as transparency is concerned.
Please contact me if you would like to discuss this article, or any other clinical negligence matter.