Appendix: PACAC response to Department of Health’s Consultation on ‘Providing a ‘safe space’ in healthcare safety investigations’
The Public Administration and Constitutional Affairs Committee (PACAC) would like to respond to the Department of Health’s Consultation on ‘Providing a ‘safe space’ in healthcare safety investigations.’100 The Committee broadly welcomes the Government’s proposals to introduce ‘safe space’ investigations as part of its establishing of a new Healthcare Safety Investigations Branch (HSIB), which will become operational in April 2017. These initiatives largely follow PACAC’s – and its predecessor PASC’s – recommendations that a body be created that could conduct investigations within a safe space to drive learning and improvement within the healthcare system. Most recently, this was reiterated in PACAC’s 2016 report ‘PHSO review: Quality of NHS complaints investigations’:
We regard the ‘safe space’ principle as being critical to the effective operation of HSIB. This protection is essential if patients and staff are to have the confidence to speak about the most serious risks to patient safety without fear of punitive reprisals.101
As the Consultation notes, the aim of safe space investigations is to ensure “information that staff provide as part of a health service investigation will be kept confidential except where there is an immediate risk to patient safety, or where the High Court makes an order permitting disclosure.” The Consultation invites submissions on how a balance can be struck between such ‘safe space’ investigations and the need to “reassure patients and families that they will be given the full facts of their, or their loved ones’, care.”102 The issue at stake is one of balancing the need to determine accountability for mistakes where there has been individual wrongdoing and the need to encourage open discussions about why errors occurred so they can be prevented in future.
HSIB’s ‘safe space’ investigations are thus set to provide a new drive towards learning in the investigative landscape by providing psychological safety for staff to speak about mistakes and thereby promote open and learning-focused investigations.
The importance of the role HSIB’s safe space investigations are set to play was underscored by PACAC’s recent follow-up inquiry into the Parliamentary Health Service Ombudsman’s report ‘Learning From Mistakes,’ which showed that there is still widespread evidence that the investigative processes in the NHS in England are overly complex, lacking in coordination, and marred by a defensive blame culture. Many NHS organisations in England have not yet fully understood or embraced the fact that safety requires an open discussion of error and hazard not only during investigations but whenever patients are potentially at risk. Achieving a safer NHS in England will require leaders to create a climate of psychological safety in day to day work not only during investigations.
During its inquiry, PACAC became aware of significant concerns about the lack of primary legislation framing HSIB’s work. This evidence highlighted concerns regarding the perceived lack of independence for HSIB’s investigations, the lack of legislation safeguarding the ‘safe space,’ and a possible expansion of the ‘safe space’ to local level. PACAC feels strongly that these concerns must be addressed if HSIB is to be set up to succeed. A false start for this new body risks undermining its distinctive role as an exemplar for the system, for which it must maintain the trust and confidence of the system and wider public in equal measure.
During our Learning from Mistakes inquiry, the Committee took evidence from a range of people who stressed the importance of legislation for the appropriate functioning of HSIB. Scott Morrish, father of the late Sam Morrish whose case prompted the PHSO report, told us that he would like to see the Department of Health
concentrate on making sure safe space is deliverable within HSIB. At the moment, as far as I understand it, the legislation that is needed to make that possible does not exist. HSIB is being asked to go out and conduct investigations fairly soon, while it does not as yet have the powers it needs to do that in the way that we are asking it to.103
The need for primary legislation was echoed by the HSIB Chief Investigator, Keith Conradi, who added that he was concerned about the ‘safe space’ being expanded prematurely beyond HSIB investigations:
From my perspective, the principle of safe space should be limited initially to the HSIB investigations. I would be very concerned if people used that principle without really understanding it and being fully trained in it.104
The role of ‘safe space’ in HSIB
HSIB has an important role to play in facilitating the transition towards a learning culture in the health service, both in the specific investigations it undertakes and in providing an exemplar model of investigations for the system as a whole. HSIB will need to earn the trust of both patients and staff to achieve its objectives. Patients, families and the public must trust that safety investigations are impartial, free of any conflict of interest, and have the best interests of patients and service users at heart. Staff, healthcare professionals, and system leaders must equally trust that safety investigations are being conducted fairly and in the interest of improving care. All parties must feel that the investigator is entirely impartial and is acting in the best interests of the public good. Building and maintaining trust is a slow and challenging process. Trust in HSIB will take time to build through its history, its collaborative ethos, and its achievements.
The creation of a ‘safe space’ during HSIB investigations will provide a powerful support to HSIB in fulfilling its wider mission of becoming a trusted and impartial investigator. In a national agency, inevitably the subject of media attention and wider scrutiny, the statutory protection of information acquired during investigations will provide a necessary assurance to all involved that information they provide will, except in rare circumstances, remain confidential. Patients and families must of course still receive a full explanation of the events in question and it will be the responsibility of HSIB to develop an effective means of conveying the findings of investigations while protecting the more detailed information on which the findings were based.
The Government’s Consultation asks what the statutory status of the ‘safe space’ should be and whether “the proposed exceptions” would undermine the ‘safe space.’
The consultation acknowledges that the ‘safe space’ may be limited by the fact that “other organisations and individuals have statutory powers to call evidence.”105 Indeed, it recognises that the Directions106 given by the Secretary of State for Health cannot “amend or modify the application of existing legislation, and cannot require third parties seeking disclosure to apply to a particular court, nor for that court to follow a specific test in considering applications.”107
Furthermore, the Consultation suggests that primary legislation will only be considered after HSIB begins operations: “Once HSIB has created these protocols and agreements with professional regulators and others, the way in which they are applied, and the learning from this, could potentially be used to inform the development of primary legislation.”108 This developmental approach is reasonable at first sight. However, there is a considerable danger that HSIB’s independence and trusted status might be compromised from the start. Negotiating such arrangements would be time consuming and the status of HSIB reduced to being simply one of the numerous agencies involved in investigation in the NHS in England. HSIB needs to build the trust of staff and patients on the basis that it is truly independent and that it can provide an absolute guarantee of confidentiality. Early investigations will be critical in building longer term success and it is especially critical in these early stages that those involved benefit from statutory protection of information shared.
In our recent ‘Learning from Mistakes’ inquiry, HSIB Chief Investigator Keith Conradi told the Committee that he was in the process of determining
protocols on how we work with the other authorities who have a right to investigate. We will be the ones who are doing it purely from a safety perspective, but I think there has to be an understanding of what information can be passed to other people who are potentially carrying out parallel investigations and what cannot, and what procedure they may have to go through to do that.109
Mr Conradi makes it clear that the principle of ‘safe space’ might be extended in the future and that there will be circumstances in which information may need to be shared, but HSIB will need time and the security of safe space legislation to develop this understanding and the associated procedures. It is vital that the ‘safe space’ be enshrined in primary legislation so that it is indeed left to those with expertise on how the ‘safe space’ operates, HSIB, to decide on when to share information gathered during its ‘safe space’ investigations so that patients and staff participating in those investigations do not feel the ‘safe space’ can be overruled. Without strong legislative underpinning, HSIB’s ‘safe space’ investigations will be undermined from the start and the desired impact of those investigations will be compromised.
As PACAC and its predecessor PASC have made clear in the past, the Committee feels strongly that primary legislation is absolutely essential to creating a true ‘safe space’ akin to the one that governs similar ‘safe space’ investigations in the aviation, marine, and railway sectors. This legislation should be brought in as soon as possible so that HSIB’s ‘safe space’ investigations can take place with the appropriate legislative underpinning.
Safe space and local investigations
The consultation also reflected on expanding the ‘safe space’ beyond HSIB to local investigations. There are of course numerous types of investigation and organisations involved in investigations but the most numerous, and arguably the most critical, are those taking place within NHS Trusts. The question of whether a statutory ‘safe space’ should be extended to such investigations needs to be considered in the context of the wider need to achieve a culture of learning and to support both families and staff in the aftermath of tragic events. The Committee considers that while the psychological safety of both families and staff is critical in these investigations, the specific focus on ‘safe space’ as the key to improving investigations could have unintended consequences, particularly if backed by legislation.
A culture of learning, as opposed to immediate and unthinking blame for error, can only be built slowly over time by trusted leaders at all levels of an organisation. This culture needs to permeate all aspects of clinical and management practice and not be confined simply to investigations. The dangers to staff, and the negative experiences of whistleblowers, come not so much from their experiences in investigations but from the more deep-rooted failure of some organisations to acknowledge safety problems in the first place and the failure of some leaders to provide staff with the assurances they need.
The Committee believes that the principle of a ‘safe space’ in investigations is highly desirable but that the focus on this aspect at local level may allow weaker organisations to feel they have done all they need to do by implementing ‘safe space.’ Organisations need to accept their full responsibilities in creating a climate in which emerging safety issues can be discussed and acted on. After tragic events, organisations need to be proactive in their support for both the families and staff involved. Creating the conditions in which staff can speak without fear of reprisal during safety investigations is just one aspect of these wider responsibilities of senior leaders. To create a statutory ‘safe safe’ within an organisation dominated by a blame culture could compound the problems by allowing such an organisation to conceal safety information and misuse safe space to evade its responsibilities to patients, families, and staff.
The point that safe space is only one aspect of a wider learning culture emerged repeatedly in the Committee’s recent inquiry ‘Learning from mistakes’. For instance, Dr Steve Shorrock stated that ‘safe space’ is only effective when the rest of the culture is receptive to the principle that learning is central and blame is only apportioned where that is necessary (e.g. where there has been serious individual wrongdoing):
What we have learned in aviation is there has to be consensus on the need for a just and fair culture that is about learning as a whole. If you do not have that consensus from a range of stakeholders—which will include, for instance, prosecutors, judges, frontline practitioners, patient representatives, staff and practitioners— you will always have something in your system that is pushing against it.110
The emergence of a learning culture requires an understanding that a safety investigation has fundamentally different objectives from one focused on the assessment of individual performance. In his written evidence, Mr Morrish forcefully articulated this point:
‘Learning’ and ‘accountability’ are both essential for safety, but represent different goals; serve different purposes; require different methodologies; and need separate processes. The balance between them needs to be managed carefully. Striving for that balance is the purpose of a ‘just culture’.111
The Committee believes that the premature imposition of safe space as a statutory requirement at local level could have unintended consequences. Senior leaders have the responsibility to create a culture of safety at all times and the particular circumstances of an investigation are just one aspect of this. There is the risk that the statutory imposition of a ‘safe space’ during investigations may detract from the wider effort to create a culture of learning in that some organisations and leaders may feel that this is all they need to do. The Committee considers that the impact of statutory ‘safe space’ at local level is uncertain and that it would be prudent to allow HSIB to develop a fuller understanding of ‘safe space’ and its potential applicability before extending it to other organisations.
Conclusions
Overall, PACAC welcomes the introduction of HSIB and its ‘safe space’ investigations. However, as this response shows, the Committee strongly feels that HSIB and its ‘safe space’ investigations must first be appropriately legislated for if it is to have the tools it needs to succeed.
In contrast, PACAC feels that any extension of the ‘safe space’ to local investigations would be premature and took evidence during its Learning from Mistakes inquiry emphasising this apprehension. Keith Conradi strongly expressed the view that the ‘safe space’ should initially only cover HSIB and that, if used at a local level by staff insufficiently trained to use it carefully, it would undermine the intended impact the ‘safe space’ is meant to have on the investigative landscape and the shift towards a ‘learning culture’ more broadly. The Consultation recognises that the investigative landscape is complex, and that the rules governing information sharing are “equally if not more so, with a number of processes in place which require or encourage the sharing of information across organisational boundaries.”
The vast majority of investigations are likely to still take place at local level where training of investigative staff remains insufficient and the quality of investigations varies. In its response to PASC’s report on NHS Complaints Investigations in July 2015, ‘Learning not Blaming,’ the Government acknowledged the variable quality of local investigations and said that it concurred “that there should be a capability at national level to offer support and guidance to NHS organisations on investigations, and to carry out certain investigations itself.”112 In light of this, an expansion of the ‘safe space’ before local investigations are standardised and local investigative capability has been improved generally poses a number of risks, some of which are outlined in this response. A premature expansion of the ‘safe space’ carries the risk that organisations will introduce the ‘safe space’ as a simple piece of procedure without understanding its place in the wider need to improve investigations and to create a culture of learning and continual reflection on emerging safety issues.
HSIB is fully cognisant that ‘safe space’ is just one small but critical aspect of its wider drive to become a trusted, independent national investigator. Once properly enshrined in legislation, the ‘safe space’ should remain in the hands of HSIB until the wider culture is ready for ‘safe space’ investigations to be conducted on a wider scale. As an intermediate measure, the Department of Health should consider allowing HSIB to instigate a ‘safe space’ when it chooses to investigate at local level or indeed when local investigations require a ‘safe space.’ This would allow HSIB, and its investigators with expertise on how ‘safe space’ operates, to retain control over the ‘safe space’ even as it provides the option for it to be extended to a local investigation where required.
100 ‘Providing a ‘safe space’ in healthcare safety investigations’, Department of Health, October 2016.
101 HC (2016–17) 94, June 2016, p. 31.
102 ‘Providing a ‘safe space’ in healthcare safety investigations’, Department of Health, October 2016.
105 ‘Providing a ‘safe space’ in healthcare safety investigations’, Department of Health, October 2016.
106 Secretary of State for Health (2016), The National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) Directions 2016.
107 ‘Providing a ‘safe space’ in healthcare safety investigations’, Department of Health, October 2016.
108 ‘Providing a ‘safe space’ in healthcare safety investigations’, Department of Health, October 2016.
27 January 2017