My Lords, I will speak to our Amendments 310A, 311A, 312A and 319, and I thank the noble Lord, Lord Patel, and my noble friend Lord Hunt of Kings Heath for their support. I declare former interests as a chair of the Care Quality Commission and a recent chancellor of Cranfield University, which has a major teaching research role in air, rail and accident investigation in the UK and globally.
I share the view of my noble friend Lord Hunt that this is an important step forward for patient safety. The whole point of setting up the HSSIB is its independence and the concept of safe space and protected material. However, the Government, having made a good call in proposing that it be set up in these terms, have immediately screwed up—if noble Lords will pardon the technical term—by eroding its foundations from birth.
I know we are not supposed to rely on Explanatory Notes, but I will quote them, as they give some indication of the original and admirable intentions of Government:
“The Bill creates a ‘safe space’ within which participants can provide information to the HSSIB for the purposes of an investigation without fear that it will be disclosed to others.”
This good model can be compared with the air, rail and marine accident bodies. Safe space enables the improvement of safety by promoting learning and not attribution of blame. This is a founding principle behind establishing a safe space.
The importance of safe space is well documented in air accident investigation. The key point is that the evidence is collected on a not-for-blame basis and cannot be utilised in another, different sort of investigation. There are UK and international examples of the chilling effect of the impact of compromising the safe space principle. I can provide them for the Minister, if she would like them.
One of the most graphic examples I heard was a fatal air accident in New Zealand where police seized the cockpit voice recorders. The result was that pilots across New Zealand no longer trusted the CVR data to be protected as a matter of principle and withdrew their co-operation from the collection of cockpit voice recorder data. In fact, they routinely disabled the CVRs after the start of each flight and reported it as a fault. This withdrawal of co-operation continued until full protection of the CVR data was put in place in line with international standards. That is a sign of what can happen to a community of interest if they do not feel they can trust the rules.
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There is absolutely nothing stopping valid parallel investigations by, for example, the police, the coroner and the Civil Aviation Authority that attribute blame but collect their evidence separately and on different and distinctive terms. The crucial thing is that an individual coming forward with information understands what kind of process they are in and what the risk is that the information they provide for one use may be used by a different sort of process.
If HSSIB is really going to be about no-blame investigations, it must protect the safe space absolutely. Any sharing of protected material, even to another safe space, such as is proposed by the ombudsman, means a risk of data leaking. As the Bill stands, the safe space has several wide-open doors, with access for coroners, the Secretary of State and, if the amendment tabled by the noble Baroness, Lady Neuberger, is accepted, the ombudsman. I urge the Minister to think again and truly protect the safe space.
My Amendments 310A, 311A and 312A defend the principles of establishing that safe space. Amendment 310A would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill. Amendment 310B, tabled by my noble friend Lord Hunt, does much the same job as my amendment; I guess that he did not quite like mine. Amendments 311A and 312A would remove the provision allowing coroners to require the disclosure of protected material; my noble friend spoke very eloquently of that. Despite searching widely, I cannot find anybody who supports this power for coroners other than the coroners themselves and the Ministry of Justice—even with its provision whereby a senior coroner has to apply to the High Court for an order if they want to disclose the protected material to anyone else.
I am against this proposal on coroners in the Bill for two reasons. First, any disclosure of protected material to another party represents a risk to the safe space. It would have a chilling effect, preventing people coming forward to HSSIB and therefore making it less
able to improve patient safety, and undermining one of its very foundations, as my noble friend Lord Hunt said. Secondly, the dealings of coroners are adversarial: they are about blame. Their processes and their use of data are totally alien to HSSIB’s founding principle of no blame. The Government have clearly not thought through the risk of undermining HSSIB before it starts, so can the Minister tell us why he believes that opening the doors up to coroners is necessary and does not risk the whole foundation of the principle of HSSIB?
I would like to address, with some trepidation, Amendment 311, tabled by the noble Baroness, Lady Neuberger, in the same context of the need for primacy of the safe space. Opening up the right to disclosure further to the health service ombudsman would infringe that principle. I understand the international principle of unregulated access to all sources for the ombudsman, as outlined in the Venice Commission principles, but there must be a proper balance between that and the whole point of HSSIB, which is to secure improvements in patient safety by encouraging people to engage openly and with the confidence that the information they are providing will be in the safe space and be treated as protected materials.
I am very grateful to the ombudsman, who took the time last week to discuss this with me and to explore his concerns about any diminution in the ombudsman’s powers. I fully understand that the ombudsman would be able to use the protected materials publicly only if a High Court judge agreed, but in reality, any sharing of protected materials from the safe space, even if it is to somebody else’s safe space, represents a risk to the integrity of the confidentiality in which individuals gave that information. That is the principle on which HSSIB fundamentally relies, and it would be eroded by opening up to the ombudsman.
In reality, the ombudsman would be in no worse a place than he is in cases where HSSIB has not undertaken an investigation. He can still investigate ab initio and take into account HSSIB’s published summary report. In reality, the number of cases in which both HSSIB and the ombudsman are likely to be involved is very small. The ombudsman estimated that it could be as low as one case per year. So, we are talking about jeopardising the foundation of HSSIB for the sake of one case a year. While I understand the concern of the noble Baroness, Lady Neuberger, I do not believe her amendment justifies in seriousness or scale undermining the fundamental principle that HSSIB has been set up to deliver.
Finally, my Amendment 319 addresses the other founding principle of HSSIB: its independence. The Bill’s Explanatory Notes refer fulsomely to independence, but if the Secretary of State has the ability to direct HSSIB, that does not do much for its independence. In another place, the Minister said that the Secretary of State needs powers to direct HSSIB to carry out an investigation in order to smooth the transition from the current arrangements to the new body. If this temporary power is indeed needed, let us make it temporary. My Amendment 319 would introduce a sunset clause and limit the power of direction to an 18-month transitional period.
The concerns that I and other noble Lords are raising about the powers of the Secretary of State to direct investigations and the erosion of the safe space
are not something we have just dreamt up. The Government have received representations from several groups of leading experts, the current HSIB advisory panel, HSIB executives and members of the Joint Committee that previously scrutinised the original draft Bill, as well as from harmed families. Can the Minister tell the House why such senior, extensive and unanimous advice on these issues seems to have been ignored?