By John Tingle
The Department of Health and the government in England have published a draft Bill for discussion which will create a Health Service Safety Investigations Body (HSSIB) with powers enshrined in law. The HSSIB replaces the current Healthcare Safety Investigation Branch (HSIB) which operates under the umbrella of NHS Improvement and came into operation in April 2017. Unlike the HSIB, the new HSSIB will be independent of the NHS, and have its own statutory power base. The HSSIB will not be responsible for investigating all serious patient safety incidents in the NHS and existing frameworks will remain.
Eight fact sheets have been published by the Department of Health to accompany the draft Bill which explain its purpose and rationale and how everything will work. It is expected that the HSSIB will investigate up to 30 serious patient safety issues a year and will have an annual budget of £3.8 Million.
It will be important for the HSSIB to manage public and NHS expectations of what it can actually achieve given its small budget, staffing and the number of investigations that it intends to carry out. There are around 24,000 serious patient safety incidents a year in the NHS. The small-scale operation of the HSSIB can be justified as it will act as an exemplar of good investigative practice and will cascade down standards into the NHS.
The Bill as it presently stands is not without controversy and a number of features are causing concern. The most controversial aspects of the Bill are its ‘Safe Investigative Space’ provisions. This aspect raises important ethical and legal considerations and impacts on issues such as the duty of candour, patient’s right to know fully what happened to them and access to justice. Patient trust issues in the investigative process and its legitimacy are also raised. Once the Bill passes into law, certain relevant information can be held back from disclosure to the patient and their legal representatives in a serious adverse patient safety investigation in trusts (hospitals). This is subject to a number of exceptions such as notifying the police where any information, document, equipment or item may provide evidence of the commission of an offence.
The reasoning behind the ‘Safe Space’ is to encourage NHS staff to freely speak during an investigation in the knowledge that the information disclosed will not be passed on to lawyers or others unless one of the limited exceptions apply. Hopefully then lessons will be learnt from adverse incidents and clinical practice altered accordingly so the same mistakes do not happen again. The idea is to drive a reflective patient safety learning culture into the NHS.
Another controversial aspect of the Bill is its provisions regarding the accreditation of NHS trusts (hospitals). The government’s aim is that the ‘Safe Space’ will, over time, be extended to local investigations by NHS trusts through a system of HSSIB accreditation. Factsheet 7 goes into more detail on this. There will be two stages of accreditation.
History is not on the side of the NHS
History is not on the side of the NHS when it comes down to the quality of complaints and serious patient safety incident investigation. Many publications in recent years have stated that NHS performance is bad. Only time will tell how successful trust accreditation will be in practice.The Bill does succeed on putting patient safety on the national agenda and a healthy debate will no doubt ensue as it progresses through parliament. It is to be broadly welcomed but some of its provisions are a cause for concern.