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Written on 13th September 2022 by Susan Brown

The Professional Standards Authority (PSA) which oversees the regulation of healthcare professionals has warned that HSIB’s new ‘safe space’ investigations will ‘cut across’ healthcare professionals’ duty of candour and reduce individual accountability for harm caused to patients by unsafe care.

The PSA’s report, Safer care for all, highlighted that accountability and transparency are an essential part of learning from mistakes and improving patient safety. They are also needed to maintain public confidence in the medical profession and in their health and social care.  

The report described the policy behind HSIB’s move to ‘safe space’ patient safety investigations as flawed.  The PSA called for further discussion about its concerns about the dangers of safe space and urged the government to proceed with caution and keep HSIB/HSSIB’s investigations under review.  

PSA concerns about safe space and lack of accountability in HSIB investigations

In its Safer care for all report the Professional Standards Authority (PSA) acknowledges the difficulties faced by healthcare professionals in providing safe care in the current healthcare environment, and their stress and anxiety when things go wrong. It has been assumed that fear of repercussions makes it harder for professionals to speak up openly when something has gone wrong and that this is why the NHS does not learn from mistakes. Proposed solutions to this problem have included creating a ‘just culture’ by removing all blame from individual healthcare professionals and providing ‘safe space’ protection for staff during HSIB (HSSIB) investigations.

The PSA reports that public confidence in health and social care is being tested by repeated NHS failings and lack of learning highlighted by inquiries, such as the Ockenden Review. The report describes the maternity failings at Shrewsbury and Telford Hospitals NHS Trust as ‘another shocking example of avoidable harm and death in maternity services with families forced to campaign for years to have their concerns addressed’.   

The report agrees that healthcare professionals’ fear of their regulator, colleagues or employer can lead to defensive practice and cover-ups but emphasises that it is in the public interest to hold individuals to account when care goes wrong.  Accountability for mistakes builds public confidence in the medical profession and improves patient safety by sending the message to other professionals about what is (or is not) acceptable. System failure often plays a part in patient safety incidents, but individuals may be the primary cause of harm from the original incident or add to the harm through the institution’s poor response.  Reviews such as Ockenden have highlighted how institutions and individuals within them have worked to hide the truth from patients and their families after things have gone wrong.

Focussing on system failures alone can lead to an incorrect assumption that none of the behaviour by individuals was blameworthy. The PSA emphasises that people can cause harm, and when that happens it must be addressed. Without individual accountability their failings remain unaddressed, lessons remain unlearned and standards of professional behaviour are lowered. The PSA also referred to research which found that no-fault compensation systems (which removed individual accountability) were less effective than negligence-based systems in  improving standards of patient safety.

The PSA points out that a just culture requires patient safety investigations to identify underlying causes of patient safety incidents so that action can be taken to reduce the risk of further incidents in future. Within a just culture it is also essential to establish the role played by individuals in any patient safety incident but this must be done fairly and transparently. PSA argues that a fair and transparent approach to individual accountability is an integral part of a just culture. 

With so much evidence to demonstrate that the free flow of information is essential to safety, the PSA found that HSIB’s proposed safe space investigations ‘epitomised’ their concerns, with a flawed policy which deliberately creates an ‘information silo’. HSIB’s safe space will be most needed where toxic workplace cultures cause staff to fear repercussions, but will work around the symptoms without addressing the cause. Safe space will undermine the duty of candour and full sharing of information with patients and families, however, catastrophic failings in care are often accompanied by a lack of candour. The report questions whether safe space as a policy is fundamentally flawed and should be replaced by processes that are more transparent. In the meantime, the PSA recommended that the government should use caution during the implementation of safe space in HSIB investigations and review for unintended consequences.  

The PSA recommends that a new Health and Social Care Safety Commissioner should be appointed for each UK nation. The Commissioner would  sit above all other health and care organisations and be independent of governments. Their role would include centrally coordinating and overseeing public inquiries to ensure that recommendations are implemented and learned from, identifying gaps in patient safety regulation and ensuring that new initiatives, such as safe space, do not undermine existing patient safeguards such as the duty of candour and accountability.

The PSA says it will now work with patients and families, professionals and regulators to help HSIB and other initiatives to support candour and accountability.

HSIB responded to the PSA’s Safer care for all report: “On the issue of accountability, we are committed to close discussion with all of our stakeholders – including the Professional Standards Authority – about how safe space in HSSIB investigations will operate in practice.”

Boyes Turner’s clinical negligence team welcome the PSA’s report and its findings which echo our concerns about safe space investigations further eroding injured patients’ rights to full information and explanations after healthcare negligence. It is hard to see how full transparency and accountability can ever be achieved by safe space investigations.  By definition, any culture that refuses to share with an injured patient full and candid information about the cause of their injury cannot claim to be just. Individual professionals’ fear of repercussions from speaking up should not add uncertainty and insult to the patient’s injury. Such fears are the result of a toxic workplace culture and their NHS employer’s responsibility.

If you have been injured as a result of medical negligence and would like to find out more about making a claim, you can talk to an experienced solicitor, free and confidentially, by contacting us here.