My opinions on the 'controversial' Safe Space for HSIB investigations

‘Safe Space’ for HSIB investigations.

I am very much against the ‘safe space’ described within the pages of the ‘draft’ (thank goodness) Health Service Safety Investigations Bill, dated September 2017.(1)
“The HSSIB or the accredited trust must not disclose to any person any information, document or other item which is held by it in connection with an investigation”

However, I am very much for Safe Space for HSIB investigations, but ONLY AS DESCRIBED in Recommendation 9 of the HSIB expert advisory group report, in May 2011.(2)
“The Branch must provide families and patients with all relevant information relating to their care, reflecting the responsibilities of healthcare providers to uphold the duty of candour. To ensure the continued provision of safety information and the confidence of healthcare professionals, all other evidence collected solely for the purposes of safety investigation will be protected and will not be passed on….”

There is a lot more description in recommendation 9, and I urge my readers to read it fully.

I am aware that there is a great deal of fear amongst my avoidably bereaved colleagues regarding safe space. I see it on Twitter, and I hear it in direct conversation. They believe, that safe space will give NHS trusts permission to conceal information about their loved ones care from families. They are also suspicious that it is a department of health construct designed to significantly reduce legal costs, by preventing families from using any of the facts found as part of HSIB investigations in any proceedings, such as civil liability.

I think this fear of ‘safe space’ comes primarily from a belief that the only version of safe pace ‘on the table’ is the one in the draft bill. Safe space as set out in the bill, frightens me. In actual fact, all those I have spoken to who strongly support safe space for HSIB investigations, find the one in the bill scary too! They, like myself, support the safe space described in the EAG recommendations, and not the safe space set out in the draft bill.

The supporters of safe space I have spoken with, have….

ZERO support for withholding information relevant to a patient’s care which comes to light as part of the investigation from them or their family
ZERO support for making any information relevant to a patient’s care that is shared with a patient/family during the investigation inadmissible in other proceedings
ZERO support for making published reports of investigations inadmissible in other proceedings
ZERO support for ‘accrediting trusts’ to be able to carry out their primary serious incident investigations with safe space protection for any information obtained
ZERO support for primary serious incident investigations that HSIB undertake, for example the 1000 maternity investigations they have been asked to carry out per year, having any safe space protection for any information obtained

I think another source of confusion for many, is possibly a misunderstanding of AvMA’s briefing to the draft bill, (3) AvMA have in my opinion done families a massive service by highlighting to us how dangerous the safe space as described in the draft bill would be. They highlight throughout their briefing document that prohibiting HSSIB from sharing information relevant to a patient’s care from them or their family as set out in the draft bill would be wrong, and is in direct contradiction to the recommendations of the Expert Advisory Group. They state that the Expert Advisory group recommended all relevant information about a patient’s treatment must be shared with them or their family, and that they should be free to do whatever they wish with that information.
What that briefing does not adequately convey, in my opinion, is that AvMA are not against ‘safe space’ itself, so long as it is the safe space the EAG recommended, where relevant information is shared with the family, and not the one in the draft bill, where it is not. It is also my personal opinion that this message has not come across clearly in newspaper articles either.
Tweets I’ve seen this week from Peter Walsh, and direct conversations I’ve had with him, convince me that this is AvMA’s position.

at 7:17 am on 12.7.18 he wrote

"Three main things to change: 1. Safe space only to apply to the circa 30 thematic investigations carried out by HSIB. 2. Safe space prohibition to exclude info relevant to treatment which must be shared with patient/family. 3. The final report should be admissible in proceedings."

and 3 minutes later, in response to my tweet asking " 'all relevant info should be shared' doesn't have to mean the full witness statement should be shared, so long as relevant facts to the family are communicated promptly, agree?"

he wrote

"Yes. Why wouldn't anyone agree with that? The Expert Advisory Group recommended after much deliberations but that is being ignored"

I know that I, and so many of my avoidably bereaved colleagues quite rightly rely on AvMA for useful information about policy issues that affect us, so I wanted to highlight what AvMA are saying, which is that “the EAG recommendations for safe space must not be ignored”, and make clear the distinction between this, and “we shouldn’t have safe space in any form” which they are not saying.

Last week also saw the publication in HSJ of Scott Morrish’s article entitled “The essentiality of safe space” I know, because I have had detailed conversations with Scott about HSIB and safe space, that he too, opposes the wording in the draft bill, and supports the safe space described in the EAG recommendations.
This doesn’t come through loud and clear in his article. It’s subtle, and some may not pick up on it. The words he uses are;
‘Draft legislation is more rough than ready, but parliamentary scrutiny is flushing this out, leaving no doubt about the need for substantive redrafting’

In face to face conversation, he is definite, that patients/families should be given all information relevant to their care, and he is passionate, that we have to provide psychological safety in the form of protection/confidentiality to all other information provided to the investigators (that isn’t already in the public domain) although his view is that the only information that would fall into this category is likely to be ‘witness statements’. (This view is reflected in his article, as he defines safe space as “the protection of witness statements”)

Scott highlighted to me that safe space isn’t just about making NHS frontline staff feel safe to speak freely, it confers the same privileges to anyone that is interviewed, including patients and families. Families too may feel ‘safer’ sharing their observations about events, or staff members, or leaders of an organisation, if they know everything they say is not going to be published but facts relevant to the findings of the investigation will be extracted to be shared.

If you were to have both families and staff providing HSIB investigators with information about concerns raised within a trust that have been responded to in a dismissive way, or concerns they haven’t felt able to raise for any reason including fear of blame or victimisation, this could lead not only to further information coming to light about a specific safety incident, but also a focus for the investigation on the culture where the incident occurred with information about this shared in the report along with recommendations to develop a more open, candid, appropriate response to valid concerns. It is easy to see how helpful a safe space protected secondary HSIB investigation might have been for the staff and families involved in the terrible situation at Gosport that was recently exposed. It is also easy to see how trusts that may in the past have been motivated to ‘cover-up’ may think twice about it knowing it is possible the incident could later become part of an HSIB investigation, where intelligence about that could be shared with the investigators.

When I spoke to Scott, it was clear to me that he thought it should be obvious that as part of the process of the investigation families should be given any information regarding their loved ones care that they didn’t already have, that it’s obvious that if this doesn’t happen it’s not going to result in a rounded investigation, as the family wouldn’t have been able to provide their comment if necessary on that new information. When establishing exactly what has happened, the HSIB teams need to consider everyone’s accounts of events. But it isn’t obvious. What’s obvious is that when Scott talks about safe space in conversation, he is talking about safe space as recommended by the EAG, not the draft bill.

His article makes the case beautifully for why safe space will benefit both families and staff, and result in the kind of information and intelligence around serious incidents that is needed for the “antidote for toxins created by poor leadership, weak governance, misguided regulation, and adversarial processes “ to emerge

What it doesn’t stress enough, in my opinion, is that the safe space he refers to is the one recommended by the EAG, and not, as it is described in the bill. This has the potential to confuse his readers and lead them to believe he supports safe space as described in the bill, but he does not.

He does however highlight that the “ill conceived provision for delegating it (safe space) to trusts” has “amplified” concerns about safe space amongst those who have suffered injustice, and says “But no one outside the DHSC thinks this is a good idea. For all our sakes, including the HSIB, it must be dropped”

Patient Safety Learning, the organisation that James Titcombe has set up with Jonathan Hazan (formerly of Datix) shared their Evidence to the Joint Select Committee on the draft bill on twitter. (5)

I find this document especially easy to read, and clear in it’s support of safe space as defined in the Expert Advisory Groups recommendation 9, and it’s opposition of safe space as defined in the draft bill.
I recommend that anyone trying to develop their own informed opinion on this subject read it.

James Titcombe, has made a similar observation to me on twitter, that despite it appearing as if we may have ‘supporters and opposers’ of safe space amongst those who do fully understand the information about it available, we don’t really…

His tweet from 9:02am on 12.7.18 reads

"In my view, everyone is close to saying the same thing. 1. For HSIB's main national investigations there is broad support 4 'safe space' albeit with some exclusions recommended by the EAG). 2. No one supports 'safe space' for local trust investigations into individual cases"

Views have been explained in different ways, but if you peel away the layers, the core message from everyone is that the safe space provisions in the draft bill are dangerous and should not be adopted, but there is huge support for safe space as described by the expert advisory group recommendation 9

I think it is important to stress that families are campaigning for truly independent investigations into serious incidents because many believe this is the only way to uncover the true facts about what has happened from an investigation.

Whilst they will only be working on 30 investigations a year, an HSIB investigation that has safe space provisions is a fully independent ‘secondary’ investigation process. The investigation team working for HSIB have no motive to ‘cover-up’ They are not working for any organisation involved in the incident. To ‘prove their worth’ they need to demonstrate their ability to uncover exactly what’s happened and precisely why, and to communicate all information relevant to that in the public report.
If there has been attempts to conceal information from a family/the public as part of the trusts own S.l investigation, there could be a number of reasons why that would be. One, is staff working in a culture of fear and blame, who daren’t tell the truth because of the potential reaction to them by their employer. Those same staff members may be crying themselves to sleep at night knowing a family hasn’t been told the truth, and hate they are a part of that, but also not feel able to ‘whistleblow’ because they have 3 children at home that they need to hold on to their career for so that they can afford to house, clothe and feed them. It is easy to see the ethical dilemma these staff face, and that it causes them immense stress.
In my opinion, if those staff who want families to have all of the information but don’t want to risk their careers to give it to them, the opportunity to speak freely as part of an HSIB investigation, knowing their statement would be protected under safe space, would provide a) the family with much needed answers about their loved ones care and b) intelligence to HSIB about a toxic culture/leadership team which is affecting the organisations openness and ability to learn, which then steps could be taken to address.
It is easy to see why safe space for HSIB’s system wide secondary investigations would be helpful to families and to staff when reflecting on the recent information that came to light about Gosport.
If even safe space as recommended in the EAG is successfully opposed (although I can’t imagine why it would be) it is more likely staff members who want to speak out still won’t, even to the independent HSIB investigation team, for fear of their employers getting hold of their statement.

So I agree with Scott, that for the time being, safe space for HSIB’s circa 30 secondary system wide investigations into serious issues (and only these ones) is ‘essential’ , and will not lead to more ‘cover ups’ than we currently have, but will give an opportunity for a few cover ups to be exposed.
Safe space is beneficial for as long as we have any fear/blame culture in existence in any part of the NHS. It is easy to see, despite the massive steps being taken to try to address this issue, that it is sadly going to be a long time before it truly ceases to exist.

My Summary;

The DHSC screwed up with the draft bill for HSSIB and safe space. They put things in there that were not recommended by the Expert Advisory Group, and they were not recommended by the Expert Advisory Group with good reason. They undermined the role of the group in doing so, and gave people the ‘heebie jeebies’ about safe space unnecessarily.

As a result, to the untrained eye there appears to have been a backlash against ‘safe space’, which has driven some to speak out to defend it’s essentiality.

However, close inspection reveals the backlash is against the ‘bill’ not safe space itself, which, if appropriately legislated for, with strict rules for sharing relevant information with families, is welcomed in all the public responses to the bill that I have reviewed (AvMA, Patient Safety Learning, Scott Morrish)

Wemust remember the draft bill is exactly that, a draft, that can, and must, be amended.
The HSSIB (bill) must be amended to explicitly state that information that ‘directly relates to the care and treatment of a patient affected by a serious safety incident’ that comes to light as part of safe space protected documents MUST be shared with the patient or family in line with the Duty of Candour.

Even amongst strong supporters of safe space, there is no support for
withholding information relevant to a patient’s care which comes to light as part of the investigation from them or their family. There is no support for making any information relevant to a patient’s care that is shared with a patient/family during the investigation inadmissible in other proceedings
or for making published reports of investigations inadmissible in other proceedings
There is no support for ‘accrediting trusts’ to be able to carry out their primary serious incident investigations with safe space protection for any information obtained or for primary serious incident investigations that HSIB undertake, for example the 1000 maternity investigations they have been asked to carry out per year, having any safe space protection for any information obtained.

All the above need to be removed from the bill too.

I hope this blog piece may be of some use, in helping others develop their own, fully informed opinions, about safe space for HSIB investigations.

Joanne Hughes
Mothers Instinct

References:

1. The Draft HSSIB Bill and associated factsheets
https://www.gov.uk/government/publications/health-service-safety-investi...

2. The Report of the recommendations made by the Expert Advisory Group for HSIB
https://assets.publishing.service.gov.uk/government/uploads/system/uploa...

3. The draft Health Service Safety Investigations Bill and “Safe Space” Briefing by Action Against Medical Accidents October 2017
https://www.avma.org.uk/?download_protected_attachment=HSSIB-briefing-19...

4. The Essentiality of Safe Space by Scott Morrish
https://www.hsj.co.uk/the-essentiality-of-safe-space/7022882.article?utm...

5. Patient Safety Learning’s Submission to the Joint Select Committee on the draft HSSIB Bill (shared on Twitter on 6/7/18) https://twitter.com/ptsafetylearn/status/1015158259710390272

Other information of interest

https://www.hsib.org.uk

NQB Learning from Deaths – Guidance for NHS trusts on working with bereaved families and carers
https://www.england.nhs.uk/wp-content/uploads/2018/07/learning-from-deat...