Department of Health Consultation - Providing a 'Safe Space' in Healthcare Safety Investigations

The Department of Health is seeking patients’ comments on its proposal to create a statutory “safe space” for NHS clinicians and staff to speak freely during healthcare safety investigations into mistakes and problems in patient care.

The Consultation Paper, Providing a ‘Safe Space’ in Healthcare Safety Investigations, refers to the closed culture which is known to exist within some NHS organisations. The extent of this problem became apparent during the Mid Staffordshire NHS Foundation Trust Public Inquiry into poor care and high mortality rates and was described by Sir Robert Francis QC in his Inquiry Report as “a culture of fear in which staff did not feel able to report concerns; a culture of secrecy in which the trust board shut itself off from what was happening in its hospital and ignored its patients; and a culture of bullying, which prevented people from doing their jobs properly.”

The government has recognised that improvements in healthcare depend on NHS organisations and staff being able to learn from their mistakes. For that to happen, there needs to be a culture of openness and honesty where staff can speak up about what has gone wrong.

The Secretary of State is quoted as saying to the Parliamentary Select Committee which reviewed the handling of clinical incidents in the NHS for its 2015 report titled ‘Investigating Clinical Incidents in the NHS’; “Too many doctors, nurses and midwives think that if they are found responsible for a death or serious incident, they will be fired…The culture we need is, ‘If you do not tell the truth and help us to understand what happened, then you will be fired.’ ”

In 2014 a statutory ‘duty of candour’ was introduced to compel NHS organisations and their staff to be open and honest with patients about errors in their treatment. This was backed up by a professional duty introduced by the General Medical Council and the Nursing and Midwifery Council to enable them to discipline doctors, nurses and midwives who were not candid with their patients. A new criminal offence of providing false or misleading information was also applied to NHS organisations or providers of NHS funded care.

Currently, the Serious Incident Framework requires all serious patient safety incidents to be investigated at a level that is proportionate to the nature, severity and complexity of the incident. The stated purpose of the serious incident report is for learning rather than apportioning blame and the patient, their family and the relevant NHS staff are entitled to be involved and supported throughout the investigation. Under this system, patients have a right to receive a copy of the serious incident report.

Despite these efforts to provide a framework for investigating healthcare incidents, government research has found considerable variation in the way NHS organisations run their investigations. Anonymity is often given to staff and patients in the reports, but both patients and health service staff are reported to feel let down by the process, with staff feeling fearful of the prospect of being blamed and patients suffering further distress from poor handling of the investigation, which adds insult to the injury which is being investigated.

The new Consultation Paper, Providing a ‘Safe Space’ in Healthcare Safety Investigations, makes it clear that the government is now determined to tackle the ‘blame culture’ which it believes is holding back the NHS in its aim to become a learning organisation. It intends to do this by creating a statutory ‘safe space’ for staff to speak openly during healthcare safety investigations. The current proposal is to place a statutory prohibition on disclosure of the information obtained during these investigations, such as witness statements, recordings of staff interviews, and investigators’ notes, unless an order for disclosure is made by the High Court. There would be stated exceptions to the ban on disclosure, currently expected to include circumstances where there is an immediate need for sharing of the information to protect further deliberate harm to patients or where there has been criminal behaviour.

What remains unclear is the extent to which patients’ rights for full information under the current duty of candour are to be preserved. The consultation paper repeatedly highlights the difficult balancing act between creating a culture of learning in which staff can feel confident that they will be treated fairly, and patients and their families being assured that errors and the cause of them will be fully explored and that they will receive the full facts relating to their own or their loved ones’ care. But it then raises a concern that sharing of healthcare safety investigation information with patients might negate the entire principle of ‘safe space’, a suggestion that implies this new open culture could deny a patient access to the ‘learning’ information that was gathered from the mistake that was made in relation to their own care.

In addition, alongside an assurance that the provision of ‘safe space’ in healthcare investigations is not intended to reduce the effectiveness of ‘other processes designed to hold professionals to account and ensure the safety of the public’ including coroners inquests and civil actions (i.e. medical negligence claims), the paper suggests that existing rights to disclosure in other processes would be restricted in so far as ‘safe space’ protected healthcare safety investigation evidence is concerned.

It is also proposed that information obtained during healthcare investigations would not be disclosable under the freedom of Information Act 2000 or the Data Protection Act 1998.

By the end of the paper, consultees are asked whether they ‘support a principle of a ‘Just Culture’ (that would make a distinction between human error and more serious failures) in order that healthcare professionals might come forward more readily to report and learn from their mistakes without fear of punitive action in circumstances that fall short of gross negligence or recklessness.’

Does negligence, in the sense that we are required to prove for medical negligence claims, fall short of ‘gross negligence’? In English law, (which governs the jurisdiction under which the new ‘safe space’ protection is to be given to NHS staff) it does. In every medical negligence case we pursue, to establish ‘negligence’ we must prove that the patient’s treatment fell below a standard that any responsible body of medical opinion would condone. There is no requirement for optimum or even a high standard of care. Negligence means unacceptable by any medical standards.

So by supporting the principle of a ‘just culture’ in which we expect NHS staff to be able to discuss and learn from the mistakes which have led to patients being harmed, are we also being asked to accept diminished rights for those patients who have been injured by negligent (as opposed to grossly negligent or criminal) care?

At Boyes Turner we welcome all progress towards full, open and honest communication with patients alongside shared learning amongst health service providers which will raise standards of healthcare and protect patients from harm. Our clients have been injured as a result of negligent care and have often suffered the additional distress from inadequate communication and poorly handled investigations that is highlighted in the Consultation Paper. Any ‘just culture’ must provide justice for all, not least the patient who has been injured.

There are 30,000 serious incidents reported annually within the NHS, each of which requires a separate investigation. With so many investigations taking place, it is proposed that initially the new ‘safe space’ provisions will only apply to maternity services in England.

The consultation remains open until 16^th December 2016. You can read the Consultation Paper and respond online here.