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Written on 1st March 2022 by Susan Brown

The Guardian newspaper has reported that the Parliamentary and Health Service Ombudsman (PHSO), Rob Behrens CBE, has called for amendment to the government’s Health and Care Bill, in the interests of justice for patients who have been harmed by medical negligence, and fears about patient safety.

The PHSO, as well as injured patients, their families and legal representatives, will be barred from accessing  information and evidence obtained by HSIB’s statutory successor, HSSIB, when it investigates patient safety incidents and complaints under ‘safe space’ under the proposed new legislation. The Guardian reports that he has expressed fears that he and his staff will not be able to get to the bottom of mistakes in NHS care which have caused harm to patients because he will be denied access to potentially vital information collected by HSSIB as part of their investigations. His investigations will be undermined, and victims of medical negligence could be denied justice under the proposed legislation, which would allow HSIB to “operate behind a curtain of secrecy”. 

Referring to the potential need for the PHSO to apply for a court order to obtain vital documents, he said, “It would be a curious anomaly and poor use of taxpayers’ money if two public bodies have to face up in court to get documents handed over.” He is quoted as saying, “If the ‘safe space’ provisions become law as drafted there is a real risk to patient safety and to justice for those who deserve it. This is a crisis of accountability and scrutiny.”

Who is the Parliamentary and Health Service Ombudsman (PHSO)?

PHSO, or Parliamentary and Health Service Ombudsman investigates and makes final decisions and recommendations on complaints that have not been resolved by the NHS in England and government departments. PHSO reports to Parliament, to help Parliament scrutinise public service providers but is not part of the government or the NHS. Members of the public can access PHSO’s service for free, but PHSO is independent and doesn’t take sides in any complaint that it investigates. 

For years the current PHSO, Rob Behrens CBE, has campaigned for improved standards of complaints handling in the NHS. In 2020, we reported that the PHSO’s report, Making Complaints Count: Supporting complaints handling in the NHS and UK Government Departments, was one of many reviews and inquiries which found that the NHS is too defensive, inconsistent, unable to learn and under-resourced to respond properly to patients’ complaints. 

What is HSIB?

Healthcare Safety Investigation Branch or HSIB, was set up in 2017 to carry out independent investigations into harm caused to individual patients and national investigations into patient safety concerns across NHS care.  They don’t attribute blame to any individual.  Their role is to reduce risk and improve patient safety by making recommendations to improve healthcare systems and processes.

The government’s Health and Care Bill, which is currently making its way through Parliament, will give HSIB independent statutory status under its new name, the Health Service Safety Investigations Body or HSSIB. If the Health and Care Bill as currently drafted becomes law, HSSIB will carry out most of its investigations arising from harm to individual patients under ‘safe space’ protection.

What is safe space?

Since 2016, the Department of Health and Social Care (DHSC) has been working towards introducing ‘safe space’ protection for NHS staff during investigations into patient harm caused by negligent NHS care. Despite healthcare staff’s existing duty of candour, which requires them to be honest and open when mistakes have been made, the DHSC believed the only way NHS staff would come forward and speak openly to NHS investigators after things had gone wrong during a patient’s care, would be to guarantee them privacy by ‘safe space’ protection. This would prohibit disclosure of any information or evidence obtained by the investigation. That would prevent anything that was said being published, used in later court proceedings or shared even with the injured patient, their family or their lawyers in any later claim for compensation. A proposed exception to the ban on disclosure of evidence from ‘safe space’ investigations includes where disclosure is necessary to the police or the coroner, but does not include disclosure for PHSO investigations.

However, the initial response to the safe space consultation highlighted that neither patients nor NHS staff trusted NHS organisations not to abuse the ‘safe space’ system. Safe space was put on hold until the newly formed HSIB had time to demonstrate that it could be trusted with safe space investigations. An attempt by the government to bring in safe space investigations by a statutory, independent version of HSIB in 2018 did not complete its passage through Parliament. The Parliamentary Joint Committee accepted that a future, statutory HSSIB should conduct most of its investigations under safe space protection, but insisted that maternity investigations should not be carried out under safe space protection by HSSIB.

The new Health and Care Bill proposes that HSSIB will conduct its investigations under safe space. Maternity investigations will be carried out, without safe space, by a separate special health authority and not by HSSIB.

Support for PHSO access to ‘safe space’ information

At Boyes Turner we believe that all patients who have been injured, families of injured children and those who lost loved ones as a result of medical negligence are entitled to full and honest information about the circumstances and cause of their injury.

The idea that safe space protection should be needed for health service staff to feel able to speak honestly when things go wrong is a reflection of NHS’s outdated bullying culture. That culture will not be uprooted by investigations held in secret or by hiding the truth from injured patients, their families and those who represent them. Safe space investigations will only destroy the little transparency that remains and further diminish patient trust.  Patients who cannot obtain open and honest answers to their complaints after things go wrong will be left with no alternative other than to resort to litigation. And to deny even the publicly accountable Parliamentary and Health Service Ombudsman access to information needed for his investigations will disempower him from helping those he is appointed to serve and severely hamper his investigations.

Baroness Julia Neuberger, who is known for her social campaigning and chairs University College London Hospitals Trust, has tabled an amendment to the Health and Care Bill which would give PHSO access to ‘safe space’ protected information for PHSO investigations.  She is quoted as telling the House of Lords that allowing disclosure to coroners but not the PHSO does not make sense.  “If the ombudsman is unable to investigate robustly all aspects of complaints about the NHS, except with the permission of the high court, patients may find it harder to get access to justice. The NHS may well become less accountable for its system failings.”

Former High Court Judge and Master of the Rolls, Baron Etherton, is also quoted as saying that it would be “an incomprehensible inconsistency” to deny the Ombudsman information that is given to coroners.

Peter Walsh, Chief Executive of Action Against Medical Accidents, said, “The so-called safe space is a red herring with serious unintended consequences. There is no evidence staff do not take part in investigations for fear of information being known. It is bullying employers and over-zealous regulators that staff fear. Denying people their right to have the ombudsman investigate properly does nothing to address that.”

The House of Lords is due to debate Baroness Neuberger’s amendment later this week.

If you have suffered severe injury as a result of medical negligence and want to find out more about making a claim, you can talk to one of our solicitors, free and confidentially, by contacting us here.