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What does 'safe space' mean for safety investigations in the NHS?

Post date: 02/08/2022 | Time to read article: 6 mins

The information within this article was correct at the time of publishing. Last updated 02/08/2022

Patient safety investigations in the NHS are too often hindered by a blame culture of paranoia and defensiveness. Dr Sean Weaver, Deputy Medical Director, and Cassandra Cameron, Head of Policy and Strategy, from the Healthcare Safety Investigation Branch, look towards the 2023 introduction of ‘safe space’ in England – and what this means for patient safety.

In April 2023 a small but groundbreaking step will be taken to support learning culture around patient safety investigations in healthcare generally, and in the NHS in England in particular. For the first time, safety investigations undertaken by the newly established Health Services Safety Investigations Body (HSSIB) will have legal privilege, also often referred to as ‘safe space’.

This means that findings of the HSSIB’s safety investigations will not be admissible evidence in legal proceedings. This is already accepted and exists for other safety critical industry investigations such as those undertaken by the UK’s transport investigation branches. Through changes brought by the Health and Care Act 2022, from April 2023 the protections for witness statements will also apply to national patient safety investigations in England carried out by HSSIB, the body that will replace the current Healthcare Safety Investigation Branch (HSIB).

The GMC’s Good Medical Practice gives clear recommendations on safety: “You must promote and encourage a culture that allows all staff to raise concerns openly and safely.” (Para 24) However, the fear of blame and paranoia in the NHS regarding safety investigations remains widespread, most recently reinforced by the NHS national staff survey feedback. Whilst 74.9% of staff in the 2022 survey “would feel secure raising concerns about unsafe clinical practice” is an improvement, it still leaves more than a quarter who would not.

Learning from safety critical industries

Aviation is in a different place and is often cited as an industry from which healthcare could learn. The Wright brothers took to the skies of North Carolina in 1903 and 12 years later an Air Accident Investigation Branch was established in the United Kingdom (although it took several decades, and many fatal crashes, before the AAIB’s investigative approach shifted during the 1980s from blame to learning).

However, the development of accident investigation internationally alongside the growth of aviation means that it is culturally embedded, as now are the principles by which air accidents are investigated, such as ‘safe space’. These principles of safety investigation have been applied to other safety critical industries, often precipitated by a major disaster. The Marine Accident Investigation Branch was established in 1989 following the Herald of Free Enterprise capsizing in 1987, and the Rail Accident Investigation Branch was established in 2005 following the Ladbroke Grove accident in 1999. Indeed, it may be that healthcare has more to learn from rail, where safety investigation is recent in an older industry, than from aviation with which it is so often compared.

Following the pattern of establishing an investigation branch following a disaster, the Healthcare Safety Investigation Branch (HSIB) was established in 2017 following the independent inquiries into Mid Staffordshire NHS Foundation Trust and Morecombe Bay NHS FT. HSIB carries out national investigations into incidents which pose a systemic risk to patient safety, and which indicate “a problem with significant impact in more than one setting”. These national investigations, up to 30 a year, are in addition to any local investigation, and are published on the HSIB website. They produce recommendations at ‘system’ rather than local level – to national bodies that have the power to change policies and processes that shape how care is delivered. This recognises that work as imagined is often different to what is realistic and achievable within the environmental and operational conditions experienced at the frontline.

Speaking freely in safe space

It was an important distinguishing feature that ‘safe space’ would apply for these national investigations, to ensure that investigation witnesses could speak freely about the problems they faced – practical, cultural, managerial – in delivering safe care. However, the necessary legislation, significantly delayed, was only passed in spring 2022. The Health and Care Act 2022 has delivered some significant and important changes. It will result in the establishment of the Health Services Safety Investigation Body (HSSIB) for national investigations from April 2023. It also formalises the legal privilege or ‘safe space’ for these national investigations.

During this time, in 2018, the work of HSIB was expanded to include maternity investigations as part of a national plan to make maternity care safer. These maternity investigations are carried out to meet the criteria of the Each Baby Counts programme or the defined HSIB criteria for maternal deaths. These investigations replace the local investigations, and are written for the trust and the family, not published publicly and number approximately 1,000 per year. After April 2023, the carrying out of maternity investigations will move to a special health authority and those investigations will continue and will not be subject to legal privilege/‘safe space’.

‘Safe space’ will prohibit the disclosure of any information, document, equipment or other item held by HSSIB in connection with an investigation, apart from certain limited circumstances. These exceptions to safe space would be if there was evidence of commission of an offence, a continuing serious risk to patient safety, or serious misconduct. The High Court may also order disclosure of information if it determines that the interests of justice outweigh any adverse impact on future investigations by HSSIB. However, there is clear precedent of the High Court supporting safe space in the transport investigation branches. As an example, following the Shoreham Air Show crash, Sussex police applied to the High Court for interview evidence held by the AAIB and this was refused as it was obtained in ‘safe space’.

It is important to reiterate that the protections for HSSIB investigations do not impede or prevent any other necessary investigation processes or interviewing of witnesses – it simply ringfences the HSSIB investigation materials so that they can only be used for safety learning. In the event an HSSIB investigation is launched into a matter involving potential criminality, relevant legal processes would need to take precedent. As we know though, the likelihood of wilful criminal conduct in patient safety incidents is vanishingly small and increasingly likely to be picked up through processes such as the independent medical examiner process, which will soon apply to every single non-coronial death in England.

There are some other changes in the authority that HSSIB will have in carrying out its investigations. These include the powers of entry, inspection and seizure and the power to require information. In practice this means that HSSIB investigators will have the authority to enter premises, inspect any equipment or documents and take copies or remove any item as long as doing so does not pose a risk to the safety of any patient. Secondly, HSSIB investigators may by notice require a person to attend an interview and answer questions directly related to the investigation.

Clearly, the professional duty that many involved in an investigation have means that these powers are unlikely to be necessary. However, it is worth considering the motive and reason for these powers. It is a finding from the Francis report of the Mid Staffordshire NHS Foundation Trust Public Enquiry and the Ockenden report into maternity services at the Shrewsbury and Telford Hospital NHS Trust that some staff were anxious and scared to raise concerns. Hence, the power to compel staff to take part in a safety investigation may alter the dynamic from a staff member being a whistleblower to someone being asked by HSSIB investigators for information.

Moving away from blame and paranoia

These changes in the law supporting HSSIB patient safety investigations are groundbreaking in healthcare – currently, only Norway and Denmark now offer a similar approach, although more countries are showing interest in learning from the UK’s lead. They offer powerful impetus to the drive towards learning culture in patient safety and moving away from a culture of blame and paranoia for staff. However, they may be met with caution and concern from both healthcare professionals and the public, even though the same principles underpin safety investigations in transport, which are generally highly regarded as being fair. The culture of blame is not just present among some staff but also often expressed in the media and by the public. This is reinforced by a legal system of fault-based compensation.

It may therefore take some time for the public and media to trust that ‘safe space’ for healthcare professionals and investigations will achieve greater, not less, transparency and insight about why harm happens during healthcare. For healthcare staff who have worked in a culture of blame, it may also take some time to trust that these powers will aid, rather than impede, fairness for staff and patients.

Some may rightly say that this only applies to HSSIB investigations, up to 30 per year – a tiny fraction of all patient safety investigations in the healthcare. Many will also cite the case of Dr Bawa-Garba, whose reflective note was used in evidence when she was convicted of gross negligence manslaughter in a tragic case, where there were many systems issues involved. However, this is a crucial step in changing the culture of safety investigations in healthcare, and HSIB is proud to be at the forefront of greater fairness and learning to support improved patient safety.

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