The Department of Health has recently concluded consulting on a controversial and little-publicised proposal of creating a ‘safe space’ in ‘healthcare safety investigations’.
The scope of the proposal is very broad and includes investigations carried out by NHS Trusts for incidents that happen within hospitals. The full consultation document can be found here.
The proposal outlined in the consultation is to create a statutory prohibition on the disclosure of material obtained during certain health service investigations. There would be exceptions to this, for example if the High Court makes an order permitting disclosure, or in a limited number of other circumstances.
It would mean that evidence and documents gathered by the investigation would be legally protected from disclosure to third parties, including the patients/families whose treatment is the subject of the investigation.
Safe Space Proposal In Healthcare Safety Investigations – Creating a ‘positive culture’
The rationale behind the proposal is that it will give health care professionals confidence that they can provide evidence without inappropriate or disproportionate blame.
The Government states that the ‘Safe Space’ reform would create a ‘positive culture, one in which staff feel empowered to speak up’ and a system by which clinicians ‘can talk freely about what has gone wrong without fear of punitive reprisals’. The reform proposal states ‘Academic evidence shows there is a strong connection between ‘psychological safety and a culture of learning within an organisation.’
Implications
What are the implications of creating this ‘safe space’? Does the proposal not create the risk of eroding the ‘Duty of Candour’ and creating a conflict of interest?
The duty of candour is about openness and honestly. In 2014, the Government introduced the statutory Duty of Candour which requires full openness with patients/families when significant harm is thought to have been caused. It was seen and hailed as one of the biggest advances in patients’ rights and safety.
Creating a safe space is completely at odds with the Duty of Candour and the Serious Incident Framework. Moreover, the safe space is likely to damage the relationship of trust which is vital between patients/families and health care professionals.
A safe space would ultimately mean that when harm has been caused at the hands of the NHS, the patient/family may never see the full truth about what the investigation found. How can this be justified when the subject of the investigation centres on the treatment provided to that patient? It would mean that in every incident which is the subject of investigation, the patient or family would have to accept that they may never see the full truth about what the investigation found.
The consultation document itself recognises what it calls ‘challenges’ to creating this safe space. Creating a safe space is a difficult balance to achieve – how can you on one hand reassure staff the information they give will not be passed on, while also reassuring patients and families that they have the full facts?
Action against Medical Accidents (AvMA), a UK charity for patient safety and justice, has said that if implemented, a safe space could mean that more people may decide to initiate legal action earlier so as to avoid the ‘safe space’ getting in the way of full disclosure.
The rationale behind creating a safe space is perhaps underpinned by legitimate aims. The way in which the Government seeks to achieve these aims is potentially dangerous. Creating a ‘safe space’ in NHS investigations would be a regressive step. It would undo much of the work that has been done to make the NHS more open, transparent and patient focused.
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