My Lords, I begin by declaring my interests as set out in the register, in particular as a partner at the global commercial law firm DAC Beachcroft. I, too, strongly welcome the Bill in principle. The NHS is already a world leader, and the creation of a new statutory arm’s-length body in this space will ensure that, in the tiny minority of instances where something goes wrong, all possible lessons are learned. The new Health Service Safety Investigations Body will indeed significantly improve the NHS and enhance patient confidence.
All noble Lords will have received a plethora of briefings from various organisations in advance of this debate. In the very substantial briefing from the BMA, two very important points stood out for me, both being vital matters of both principle and detail. The first is that the criteria in Clause 3 must,
“emphasise the importance of learning from incidents and moving away from the ... culture of blame”.
I am delighted to see the noble Baroness, Lady Ashton, in her place, because 13 years ago I persuaded her to include Clause 2 in the Compensation Act 2006, so that we could all say sorry without being held as having confessed that we were to blame. I remember that it sparked a load of letters in the Times saying, “At last, we can say sorry”. I think we have moved away from the principle she set out in that Act, and the BMA reminds us that we have to learn all the time and move away from that culture of blame.
The second point is the suggestion, which seems excellent to me, that with the advent of the new HSSIB, greater clarity must be provided about the pathways down which health professionals, other staff, patients—and I would add their friends and families too—can go when and if they wish to raise concerns. Directly connected with this question is an area of the Bill that has already enjoyed some close scrutiny in this Second Reading debate, and a degree of criticism, namely the question of the so-called safe space. I well understand the questions of moral hazard behind this, but I suspect that the balance in the Bill may require some fine tuning. As the House knows, I am not a fundamentalist by nature, but I am quite the stickler for free expression, transparency and openness. Indeed, I am delighted to see the noble Lord, Lord Faulks, in his place and look forward to hearing his contribution later, because he has now taken over the mantle of chairing the Independent Press Standards Organisation, which I had the honour of starting, as its founder chairman.
The creation of the safe space around confidentiality of information shared with the new body is potentially a significant step forward in encouraging candour and enhancing potential learning from clinical incidents. However, I find myself wondering just what level of confidentiality will emerge if this Bill becomes law and just how safe the safe space could, would and should truly be. The excellent report of the Joint Committee on the draft Bill, published on 2 August 2018, covered this authoritatively. In paragraph 7 of its conclusions and recommendations, it made the all-important point that the role of the new body will be to promote,
“learning and improvement arising from objective and comprehensive analysis of the causes of clinical mistakes and incidents, leading to better and safer outcomes for users of the healthcare system.
We do not think this … is incompatible with obtaining justice in individual cases, which may and should be pursued by other means”.
My noble friend Lady Eaton was of course a member of that committee, the report of which has served greatly to improve this Bill. I look forward to hearing her speech later in the debate.
The new body will publish findings, including factual findings, on a non- identifiable basis, and will be subject to a public inquiries-type process of the equivalent of Salmon letters to those impacted by the findings. Under the Bill, protected material would be disclosed to the coroner in fatal accidents, and if the coroner were to assess that material as relevant he or she would then have to apply to the High Court for an order enabling use of the protected material in the inquest setting. This is intended to provide a safeguard for the confidentiality of the material gathered, applying the safe space principle.
At a practical level, however, I find it difficult to envisage many situations in which HSSIB-protected materials arising from an investigation into a patient’s death are not going to be regarded as relevant to a coroner’s investigation. The question, therefore, is whether the High Court will indeed cherish and protect the safe space principle and the default confidentiality of that material, or whether the need for an order will gradually migrate into a far softer route of access, diminishing that safe space principle over time. Reading the Bill, I am just not sure, and it seems to me vital that we as legislators should be far clearer about our intentions. I am confident that these arguments will be teased out in some detail, here and elsewhere, as we delve into the details of this Bill during the end of this year and, no doubt, for a large portion of next year as well.
There has been a conscious and welcome equalisation of public and independent regulation in healthcare—several speakers have already dealt with this—ever since the creation of the CQC as a single regulator across all health and social care providers. The powers, investigations, reports and enforcement actions of the CQC are intended to be the same for providers irrespective of commissioning or funding back-drop. This is the same for coroners’ and police investigations, and for professional bodies such as the GMC and the NMC.
In contrast, the creation of this new statutory body is targeted solely at those providing NHS-funded care—the noble Lord, Lord Scriven, went into some detail on this aspect. I agree that this threatens to create an inequality, which to many informed observers seems somewhat arbitrary and contrary to the public interest. Clinicians working in both public and private patient spaces would face, and indeed feel, different levels of scrutiny and engagement with learning. Investigations would exist in some aspects of clinical practice but not in others. I have no doubt that the Minister and her colleagues will be pressed during the later stages of the Bill’s passage on whether we should address risk and learning across the primary healthcare sector, irrespective of provider or funder.
In closing, may I offer one more thought? At a system-wide level, is there any intention to create a read-across between, on the one hand, the new body’s
findings around leadership and the consequential management of incidents and learning, and, on the other, the recommendations from the Kark review around the “fit-and-proper-person” test for directors, where management of candour in relation to clinical incidents is relevant? In an interesting parallel, the fitness and propriety approach of the Financial Conduct Authority includes a reference to “openness with self-disclosures”. I believe that we could benefit from close scrutiny of the FCA’s senior managers and certification regime. I note that the CQC would not have access to the new body’s protected material, but on the assumption its investigations would—or at least might—deliver learning around the clinical incident and its management, it is at least arguable that the HSSIB process may, consciously or inadvertently, arrive at findings that flag up specific leadership challenges for organisations concerned. How will that process and the risk associated with it be managed, if this is to be a genuinely blame-free process? This is the devil in the detail, perhaps, but it also seems inextricably connected to the vital principles upon which this admirable Bill is founded.
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