The Department of Health has published a consultation paper entitled ‘Providing a ‘safe space’ in healthcare safety investigations’, which proposes to improve the current ‘blame culture’ in the NHS. The paper is available until 16 December for the public to view and comment on.

In broad terms, the ‘safe space’ idea is aimed at NHS staff, patients and families and encourages them to speak openly about mistakes that have been made in the provision of medical care. The paper suggests that the NHS needs to move from a culture of blame to one of learning, and that such a culture can only flourish across the UK if supported by a government initiative. The aim is that, by allowing staff to speak freely about errors without fear of punishment, patients and their families will benefit from the lessons learnt from these errors. The approach, recommended by Jeremy Hunt last March, will be modelled on the safe space provided by investigators in the Air Accident Investigation Branch (AAIB). The paper proposes that this new approach could be tested in the area of maternity, where there is a particular focus on improving safety in the coming years, making the news of particular interest to families who have experienced problems with maternity care and negligently-managed births.

Currently, the Department of Health recognises that investigations into patient safety incidents are not conducted consistently across the country, with some healthcare providers not conducting them at all, some using them to apportion blame and others failing to learn from the problems uncovered. The consultation paper references certain recent inquiries into negligent healthcare, (the Mid-Staffordshire NHS Trust in 2013, for example), that unveiled bullying, secrecy and fear within organisations, resulting in staff feeling unable to report concerns about patient safety.

The proposal to create a safe space recognises that staff will be more likely to speak openly and admit to mistakes if they have reassurance that the information will not be shared or result in them losing their jobs. Specifically, the approach proposed in the new paper is that information provided in official healthcare investigations cannot be shared outside the investigation except in the following circumstances: if a High Court Order is made compelling disclosure; if an immediate risk to patient safety needs to be shared with the appropriate authority, such as the police; or if a criminal offence has been committed. Crucially, information obtained during healthcare investigations would not be disclosable under the Freedom of Information Act 2000 or the Data Protection Act 1998.

While this may lead to improvements for patients based on the lessons learnt in these safe space investigations, it raises an obvious difficulty: how can patients and their families be kept informed about the reasons behind any failings in their care if the information cannot be shared? The consultation paper acknowledges this issue and requests the public’s comments on how and to what extent patients and families should be allowed access to this otherwise confidential information.

When patients have received poor treatment, it is understandable that they should wish to know who is responsible and how serious a failure they have experienced. This may be for their own peace of mind or to enable them to seek legal advice about recovering compensation for their injuries. It will be of concern for birth injury clients, in particular, as negligently-managed births can lead to significant life-long disabilities, requiring expensive equipment, care and house-remodelling to accommodate each disabled person’s needs. Currently, healthcare providers are encouraged to involve and inform patients and their families throughout the investigation process. Under the new approach, however, there is a risk that certain information would be withheld unless a criminal act has taken place, leaving patients who have suffered injury, through non-criminal medical negligence, uninformed and without much-needed compensation.

Camilla Wonnacott, an associate in the clinical negligence team at Penningtons Manches LLP, said: “While proposals to improve patient safety within the NHS are always welcome, any system which denies an injured patient or their family access to investigative information needs to be scrutinised. The process of obtaining disclosure, particularly before proceedings have been issued, can be a protracted task and claimants in birth injury cases frequently experience difficulties. The recent case of DB v General Medical Council (2016) QBD, in which a doctor successfully argued that an expert report on his fitness to practise should not be disclosed by the GMC to a former patient, has already raised concern that the process of obtaining disclosure may become more challenging. The proposal in the consultation paper to deny disclosure of material using the Freedom of Information Act 2000 or the Data Protection Act 1998 needs to be viewed with considerable caution.”