What does ‘safe space’ mean for NHS safety investigations?

IN April 2023, a small but ground-breaking 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 (unless overturned by an order of the high court). 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).

Ending the blame culture

The General Medical Council’s Good medical practice guidance is very clear 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 2021 NHS national staff survey. The fact that 74.9 per cent of staff in the survey “would feel secure raising concerns about unsafe clinical practice” is significant, but it still leaves more than a quarter who would not.

It is hoped that having a ‘safe space’ for national investigations will ensure that witnesses feel able to speak freely about the problems they have faced – practical, cultural, managerial – in delivering safe care.

Big changes ahead

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 from what is realistic and achievable within the environmental and operational conditions experienced at the frontline.

In April 2023, HSIB will become HSSIB – a fully independent “arm’s length body” of the Department of Health and Social Care. The independence is seen as vital to give full confidence that the investigations are solely for learning to improve patient safety, not to blame or find fault with individuals or organisations.

However, to achieve this purpose, the new body will have increased powers that require people and organisations to cooperate with patient safety investigations.

After April 2023, maternity investigations will move to a new special health authority whose investigations will not be subject to legal privilege, or ‘safe space’.

What does ‘safe space’ mean?

‘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 that an offence under certain provisions of the 2022 Act had been committed, or evidence of a serious and continuing risk to patient safety or to the public. The high court may also order disclosure of information if it determines that the interests of justice outweigh any adverse impact on future HSSIB investigations (including whether such disclosure may deter persons from providing information to the HSSIB).

However, there is clear precedent to suggest that the high court will robustly support safe space in healthcare, as it has done in the transport investigation branches. Following the Shoreham Air Show crash, Sussex police applied to the high court for interview evidence held by the Air Accidents Investigation Branch, but this was refused as it was obtained in ‘safe space’.

What ‘safe space’ does not mean

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 proceed independently of the HSSIB investigation. 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 non-coronial death in England.

Trusting the safe space

These changes in the law supporting HSSIB patient safety investigations are ground-breaking 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 amongst some staff but can also often be 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.

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.

A similar version of this article, produced by HSIB, was made available to other medical defence organisations.