My Lords, I will try to be brief, and to cover the points about the exercise of a patient safety investigation and learning from it, which is the important part. My name is on amendments tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Young of Old Scone. I listened carefully to my noble friend Lady Neuberger and my noble and learned friend Lord Etherton. I could not
argue with him on constitutional matters; I would not even try to. But I can say this: after nearly five years of experience as chairman of the National Patient Safety Agency, which carried out such investigations—it was an arm’s-length body rather than a statutory one—the purpose of the exercise is to use an index case, where an event may have led to harm to a patient, to learn if there was a systems failure. If an event happened in one hospital, the chances were that it was also happening in other hospitals. The aim was to do an in-depth, root-cause analysis to get the necessary evidence in detail, and to find out where the systems failure might be occurring. I can give you several examples of what happens and how it can be corrected.
I agree with the noble Baroness, Lady Young of Old Scone and the noble Lord, Lord Hunt of Kings Heath, and with my noble friends that the coroners should not be able to invade the safe space and access the protected material. If I was asked to choose between the coroner and the PHSO, I would choose the PHSO, because of the less adversarial way of dealing with matters.
There are two problems in the legislation. One is compulsion: as a doctor, I will be compelled to give the evidence and the information required by the HSSIB to investigate a case and to find out where the systems failure might be. That compulsion comes with a protection—that the information I give will be completely protected from being used by anybody else against me or in any other legal procedures that may arise. That will give the health professionals or anybody else the confidence required that there is openness, honesty and transparency, because the purpose is to have as much information as necessary to find the systems failure that may occur.
If you look at the list of the 22 investigations carried out by the HSIB so far, you will find that they tend to be generic. I could read out the list, but I will not. They are not about individual investigations. I take the point that the PHSO’s role is to protect against harm done to an individual but also to deal with the system failures that may occur—I get that. My plea would be that to make the HSSIB a success, the principle of protecting the information given in confidence is a key part of the whole process. If that confidence is destroyed in any way at all, the whole exercise will not work.
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What we have to discuss is this: how can we make the HSSIB a success, which leads to identifying systems failures in our health service and improves patient care? Any threat to confidentiality will make the job of the HSSIB extremely difficult, if not impossible. If individuals thought that what they were saying was likely to be made available to anybody else, and could be used in some way, they would not be open and transparent. I make a plea that, while we are discussing who should have the right to invade the protected space, we bear that in mind and ask: will this affect the success of the HSSIB? If is likely to affect its success, we should not do it.
We have other means to get that information—the PHSO has other means. It is not left out in the cold; it does not even have to go to the High Court. By the
way, in the five-year existence of the HSIB, the PHSO has never asked for information, as I understand it, from the HSIB hitherto. Obviously, it has not felt the need to ask for information or even to ask that it inspect the information collected by the HSIB. That is the crucial point.
One other point to make is that the power of the Secretary of State to ask the HSSIB to disclose the information to anybody else is not correct. I do not think the Secretary of State should have the power to instruct the HSSIB to disclose the information is has. It should be protected from the Secretary of State also.
In summary, my plea is that we think of how the HSSIB can be made a success, and what the threats to its success will be, by asking what it is we are trying to do. But I absolutely agree that, if I had to choose between the coroner and the PHSO, I would choose the PHSO.