NHS Patient Safety - how will 'Safe Space' in investigations affect injured patients?

As the Parliamentary Joint Committee hears evidence on the Draft Health Service Safety Investigations Bill which will establish the Health Service Safety Investigations Body (HSSIB) and empower it to investigate NHS patient safety incidents, the Association of Personal Injury Lawyers (APIL) has expressed concerns about whether HSSIB will gain the confidence of patients and their families.

Injured patients need answers and access to justice

NHS Improvement’s most recent figures revealed that in 2016 there were 501,633 patient safety incidents resulting in harm, of which 5,678 resulted in severe harm and 4,544 resulted in death. Referring to these figures, APIL (a not-for-profit organisation which helps injured people gain access to justice) stated that where patients are made ill, injured, or their families bereaved through clinical negligence;

“…it is vital that all those involved are given answers to their questions as to why something went wrong. It is equally important that the NHS can learn from what happened and take steps to ensure it never happens again.”

Referring to the government’s stated belief in ‘openness’ and ‘transparency’ – key principles to which the draft bill also refers in its opening -  APIL pointed out that:

• Being open and transparent involves a full explanation of what went wrong and an apology.
• It does not, and should not, involve information being hidden away from patients and their families.
• Withholding information about what went wrong can prevent injured patients from getting their lives back on track.

Safe Space

The draft bill provides ‘safe space’  protection for NHS staff from disclosure of the information that they give HSSIB during investigations into patient safety incidents. APIL said,

“We fail to see how the creation of an environment in which information from an investigation is not automatically shared with the patient or the families fits with other measures already introduced to create a more open and transparent NHS…”

How will ‘safe space’ affect litigation claims?

Where patients and their families decide to take legal action, as they are entitled to do, against the NHS Trust which has caused their injuries, APIL predicts that ‘safe space’ will create additional barriers, delays and increased costs.

Serious incident (SUI) reports, which are currently disclosed to injured patients and their families without the need for a court order, form a vital part of the claimant’s solicitor’s initial assessment of whether a patient’s claim should be pursued. These reports include information from the hospital’s own investigation of an incident which is not always included in the patient’s medical records but which may determine whether or not the patient has a claim which should be pursued.

SUI reports are currently available to patients, their families and their solicitors before proceedings are issued. However, under the new HSSIB ‘safe space’ provisions, a High Court order will need to be obtained before the HSSIB equivalent report and supporting information can be disclosed to the injured patient -  an additional hurdle for the patient to overcome in securing access to justice which APIL believes is counter to the Department of Health and Social Care’s other efforts to reduce the cost of clinical negligence claims.

In addition, the need for High Court proceedings to take place before HSSIB reports are disclosed to bereaved families could hamper the Coroner’s investigation of a patient’s death.

Boyes Turner’s clients’ experience

Boyes Turner’s clinical negligence lawyers understand the additional distress and heartache that our clients experience when, following an injury to themselves or a member of their family, they cannot obtain full, open and honest disclosure of what has happened from the NHS organisation where the injury occurred.

In our experience, withholding relevant information from patients only deepens their distrust of the healthcare system that has already failed them, and increases the determination of otherwise litigation-averse individuals and family members to seek justice through the litigation process.

If the Department of Health and Social Care is to reduce litigation and HSSIB is to gain the confidence of NHS patients, transparency and openness, in the true meaning of those words, must be evident and apparent to all throughout the investigation process. The rights of injured patients cannot be sacrificed in favour of protecting the privacy of the healthcare staff who, through their negligence, were culpable for their injury in a just healthcare system which values the safety of its patients. NHS learning must be seen to take place openly if standards of patient safety, levels of patient confidence and the numbers of clinical negligence claims are to improve.

If you or a member of your family have suffered disability from medical negligence please contact us by email mednegclaims@boyesturner.com.