Abstract
The Department of Health in England consulted at the end of 2016 on controversial proposals to introduce a so-called ‘safe space’ in NHS investigations. The reason the proposals are so controversial is that it is proposed that a so-called ‘safe space’ is created for any patient safety investigations, not just the new national Healthcare Safety Investigation Branch (HSIB) but also local investigations by NHS trusts about their own incidents. Evidence gathered by the investigation would be legally protected from disclosure to other organisations and even from the very patients/families whose treatment is the subject of investigation, so as to give those giving evidence more confidence that they can do so without unfair, inappropriate or disproportionate blame. Whilst most would agree that supporting and protecting staff from unfair actions from bad employers or over-zealous regulators is a good thing for patient safety, preventing patients/families from knowing the full truth would be a change of truly seismic proportions and could have serious unintended consequences. Although clinical negligence litigation is not mentioned in the consultation, it is difficult not to suspect that this is something the Department of Health has in mind protecting people from. Indeed the Secretary of State, Jeremy Hunt, hinted as much when he first mooted his proposals in parliament. This is wrong on many fronts. Firstly, there is absolutely nothing wrong, unfair or disproportionate in injured patients or their families seeking compensation following negligent treatment. It is not a punishment of the individual staff involved. In fact, the NHS corporately takes on vicarious liability for clinical negligence claims. Being able to access evidence such as witness statements has proved an important element of clinical negligence solicitors being able to assess cases and win them, so this proposal would make access to justice more difficult and may also actually get in the way of the NHS learning patient safety lessons from such incidents.
There is an expectation that when it comes to patients’ treatment that the spirit of the phrase “nothing about me without me” will be honoured – especially when something goes wrong and causes harm. In November 2014, the Government brought in the statutory Duty of Candour which mandates full openness with patients/families when significant harm is thought to have been caused. This was hailed as being one of the biggest advances in patients’ rights and patient safety in the history of the NHS. If the ‘safe space’ proposals on non-disclosure are applied to all patients/families whose treatment is the subject of a serious incident investigation (as is being considered), this would make a mockery of the Duty of Candour and existing guidance such as the Serious Incident Framework, both of which require explanation of what is known as soon as possible and allow for full involvement of the patient/family in the investigation itself. Patients or families would have to accept that they may never see the full truth about what the investigation looking at their own treatment found, or be able to challenge evidence submitted to the investigation. That would be deeply harmful to the relationship of trust that should exist and still generally does between patients/families and health professionals and the NHS. An unintended consequence of this would be that far more people may decide to initiate legal action earlier so as to avoid the ‘safe space’ getting in the way of full disclosure. That would be highly ironic, as I suspect that it is the Department of Health’s desire to clamp down on the cost of clinical negligence claims that is behind the idea of protecting evidence from the sight of patients/families. Certainly, as far as health professionals are concerned, whilst they may want protection from bad employers and inappropriate regulatory action, they do not condone covering up the facts from patients. Our experience, also borne out by the NHS Litigation Authority and a growing body of international evidence (see the Michigan experience for example), is that legal action may indeed be avoided if there is full and open disclosure with the patient/family.
There is an argument that a truly independent and expert investigatory body like the HSIB should have some discretion to withhold original evidential documents like statements or transcripts from publication or disclosure to other organisations. However, very significantly, the expert advisory group advising the Department of Health on HSIB recommended that all relevant information ‘must’ be shared with patients/families. Notwithstanding this, statutory Directions set for the HSIB actually restrict how open and involving it can be. So the HSIB, which we all have great hopes for, will start under a cloud of suspicion and controversy when it gets going in April 2017. However, that will be nothing to the damage that could be done if the Department of Health goes ahead with the plan to extend this to all local investigations where there is a well-documented lack of experience and expertise in investigations, and a clear conflict of interest. We at AvMA and many others have made this clear in our response to the consultation. A decision on this is still awaited at the time of writing.