There is concern among those who have had long battles for justice through the NHS complaint system and the opaque Ombudsman process, that the HSIB recommendation for ‘safe space’ investigations will be misused to deny families information.

Peter Walsh of AvMA and others have expressed concern that the notion of ‘safe space’ contradicts the long fought for ‘duty of candour’.   Bereaved or harmed families need to know the truth and must not be kept out of the investigation process on the basis that it is carried out in secret.  They need access to all the information, not just a final summary.  Please read and comment on the phso the facts submission to the HSIB consultation on the subject of safe space.

PHSO the facts response to the consultation “Providing a “safe space” in
healthcare safety investigations”

4. Do you consider that the proposed prohibition on disclosure of investigatory
material should apply both to investigations carried out by HSIB, and to
investigations conducted by or on behalf of NHS Trusts, NHS Foundation Trusts and
other providers of NHS-funded health care?

No. it should only apply to investigations carried out by the HSIB and only then as a pilot
test scheme with clearly defined and published critical success factors (CSIs), and on
condition that the HSIB’s performance against the CSIs is made public.
The reasons why prohibition on disclosure should not apply to investigations conducted by
or on behalf of NHS Trusts, NHS Foundation Trusts and providers of NHS-funded care
are:
1. Experience and evidence indicates that many of these organisations and the
investigators they commission continually fail to uphold established, proper investigation
and disciplinary processes.
2. Experience and evidence indicates that the calibre of many leaders of these
organisations is poor and they indulge in “comfort-seeking” at the expense of truth (1)
Therefore “safe space” and prohibition of disclosure of investigatory material would simply
give poor leaders more opportunity to indulge in “comfort-seeking” behaviour away from
public scrutiny and accountability.
The prerequisite for proper consideration of “safe space” and prohibition on disclosure for
these NHS organisations is the removal from them of corrupt and failed senior people.
Without this the proposal is wrong and dangerous. 
The extent of corrupt and dysfunctional leadership in the NHS is repeatedly ignored by the
Department of Health, NHS England, NHS Improvement and the Care Quality
Commission. As far as we are aware poor leaders are not and never have been a
significant problem in air accident investigations. That is why simply bolting an air accident
model onto NHS organisations which are led by corrupt and dysfunctional NHS leaders is
doomed to fail patients, families and staff.
Moreover the Department of Health and NHS England need to be honest about the extent
to which failings in their own culture and leadership have allowed corruption and
dysfunctional leadership to thrive in some NHS organisations. They need to acknowledge
it and deal with it.
Your consultation paper says “Academic evidence shows there is a strong connection
between ‘psychological safety’ and a culture of learning within an organisation”, but you
only cite one research case from 1999. It is unsafe to base this consultation on just one
piece of research evidence which is seventeen years old.
(1) http://qualitysafety.bmj.com/content/early/2013/08/28/bmjqs-2013-001947.full 
This paper defines comfort-seeking behaviour as follows:

“Comfort-seeking behaviours are defined here as being focused on external impression
management and seeking reassurance that all was well; consequently, what was available
to organisations was data, but not intelligence. Serious blind spots could arise when organisations
used a very limited range of methods for gathering data, were preoccupied
with demonstrating compliance with external expectations, failed to listen to negative signals
from staff or lacked knowledge of the real issues at the frontline. Comfort-seeking
tended to demonstrate preoccupation with positive news and results from staff, and could
lead to concerns and critical comments being dismissed as ‘whining’ or disruptive behaviour.
When comfort-seeking was the predominant behaviour, data collection activities
were prone to being treated by sharp-end staff as wearisome and fruitless accountability
exercises. Some staff reported that they felt the main purpose of much data collection was
to allow individuals to be blamed if something did go wrong, not to make the system safer.”

5. For those investigations undertaken by or on behalf of providers and
commissioners of NHS-funded care, should the proposed prohibition on disclosure
apply only in relation to investigations into maternity services in the first instance or
should it apply to all investigations undertaken by or on behalf of such bodies?

No. There should be no consideration of prohibition on disclosure in respect of providers
and commissioners of NHS-funded care until:
1. Successful completion of an HSIB investigation pilot which has tested “safe space” and
non disclosure of investigatory evidence.
and
2. Corrupt and dysfunctional NHS leaders have been removed.
3. The NHS implements one mandatory standard of investigation for misconduct and
consistent, mandatory standards of disciplinary sanctions for NHS board members, other
leaders and staff.
4. NHS organisations are mandated to follow proper standards of investigation which must
be established by HSIB and must take into consideration how evidence from
witnesses who are neither NHS staff nor family members will be handled. The
treatment of these witnesses and their evidence does not appear to have been
adequately considered in the establishment of HSIB. 
Also we do not believe that the case for restricting initial investigations to maternity has
been satisfactorily made therefore the scope of an HSIB pilot should properly reflect the
composition of serious clinical incidents.

6. Do you have any comments about the type of information that it is proposed will
be protected from disclosure during healthcare investigations?

Yes, we think this looks like a ruse to shut down the ability of patients and families to
pursue potential medical negligence action.
This consultation provides no evidence to assure patients and families that this is anything
other than a means to restrict their rights of legal redress.

7. Do you agree that the statutory requirement to preserve the confidentiality of
investigatory material should be subject to such disclosure as may be required by
High Court order?

No, for the reasons given in answer to Q 6.
No disclosure should be subject to High Court order unless and until the Government
satisfactorily demonstrates that this proposal is not simply a means to restrict legal redress
for patients and families.

Also we would like to point out that there is a serious omission in the consultation.
It fails to take any account of the introduction of medical examiners from April
2018,“to review and confirm the cause of all deaths”. This must be urgently
addressed. 
http://www.ukpol.co.uk/2016/03/09/jeremy-hunt-2016-statement-on-mistakes-in-the-nhs/ 

8. Do you agree with the proposed elements of the test to be applied by the High
Court in considering an application for disclosure?

We are not in a position to answer this question until our concerns in response to Qs 6.
and 7. are addressed.

9. Do you have any views on the proposed exceptions that would apply to the
prohibition on disclosure of material obtained during investigations by the HSIB and
by or on behalf of providers and commissioners of NHS service?

As stated before, until corrupt and dysfunctional board members and leaders are removed
from the NHS, “safe space” will simply enable them to engage in cover ups and
“comfort-seeking” behaviours, contrary to the interests of patients, families, staff and truth,
justice and accountability.

10. Do you have any views on where the bar should be set on passing on concerns
to other organisations whose functions involve or have a direct impact on patient
safety?

We think the question is irrelevant as “comfort-seeking” leaders will always obstruct the
passing of concerns to other organisations.
A recent example is this review http://www.thebristolreview.co.uk commissioned by NHS
England (NHSE).
It examined a number of cases, two of which were also the subject of PHSO
(Parliamentary and Health Service Ombudsman) investigations. The PHSO found failings
that amounted to breach of General Medical Council (GMC) and Nursing and Midwifery
Council (NMC) codes, the NHSE review did not, or if it did, it was not mentioned in its
reports. Despite these failings neither the PHSO nor NHSE made any referrals to the GMC
and NMC.

Disgracefully the Department of Health itself is complicit in not passing on concerns
to other organisations whose functions have a direct impact on patient safety, as in
this example: 
https://www.whatdotheyknow.com/request/160245/response/396390/attach/4/Appendix%20D.pdf
It is a link to redacted emails circulating in the Department of Health’s Professional
Standards Unit in early December 2010, shortly before an inquiry report into pathology
problems in Bristol was released. In the light of failings by medical directors and other staff
the question is raised as to whether any of them were subject to local disciplinary action or
referred to the GMC (General Medical Council). When one of our members asked the
Department what was the answer it told her that it held no information on it. This response
is not credible because in September 2010, a few months before the inquiry report was
issued, one of the medical directors mentioned was moved to Leeds to take up a post as
Chief Executive of a national organisation funded by the Department of Health. Clearly a
decision was taken by the Department of Health to protect his career rather than ensure
that he was subjected to appropriate investigation and disciplinary proceedings in respect
of the failings acknowledged by the Department’s Professional Standards Unit.

In summary, concerns are not passed to organisations whose functions have a direct
impact on patient safety and the Department of Health is guilty of this. Therefore the
department’s proposal to put a bar on passing on such concerns is wrong because it is
simply an attempt to legitimise poor standards of behaviour, in which the department is
complicit.
The discussion about making an exception for referrals to the police is immaterial because
currently evidence of NHS criminality is not referred to the police by NHS organisations
and regulatory bodies. Therefore proposing an exception to allow disclosure to the police
will have no effect. Potential criminal behaviour still will not be referred to the police,
except by patients and families, from whom it is likely to be deliberately concealed using
the “safe space” excuse.

11. Do you consider that the exceptions proposed could undermine the principle of
‘safe space’ from the point of view of those giving evidence to investigations?

The case for the stated principle of “safe space” has not been made.
We think it is already undermined because all the evidence points to it being an attempt to
legitimise the sort of NHS cover ups the public sees time after time, a recent example
being this:
http://www.bristolpost.co.uk/four-year-old-died-at-bch-after-being-so-dehydrated-he-was-forced-to-suck-wet-wipes/story-29847608-detail/story.html
“The conclusions from the Parliamentary and Health Service Ombudsman (PHSO) go a lot
further than that of a huge review carried out by NHS England which was published in
June”.
The above statement refers to the fact that separately, both NHS England’s review team
and the PHSO investigated the same two cases. As the media coverage of one case shows, on this occasion the PHSO’s investigation was better quality than NHS England’s,
which families described as a “whitewash”.
Moreover the NHS England review of the Bristol’s children’s cardiac service ignored an
essential element of patient safety investigation because it failed to forensically examine
the trust’s unsatisfactory culture and attitude towards risk management and its response to
serious incidents, which is one of the most significant reasons for its history of patient
safety problems.
https://nhscasestudy.wordpress.com

12. Do you support the principle of a ‘Just Culture’ (that would make a distinction
between human error and more serious failures) in order that healthcare
professionals might come forward more readily to report and learn from their
mistakes without fear of punitive action in circumstances that fall short of gross
negligence or recklessness?

We do support this principle, but we believe a significant problem that has been ignored is
the extent to which health professionals make mistakes as a result of doing the bidding of
negligent and reckless leaders (e.g. heads of division and board members) who prioritise
reputation and targets over patient safety and are never held to account because they
refuse to apply proper investigatory and disciplinary processes to their own conduct and
are allowed to get away with it by regulators.

13. If you consider that the prohibition on disclosure should be subject to an
exception allowing for the disclosure of certain information to patients and their
families, what kind of information do you consider should be able to be disclosed in
that context? And when would be a sensible, workable point for patients/families to
have access to information – eg, should they see a pre-publication draft report for
comment?

The current proposals for prohibition on disclosure are unworkable for the reasons
described in previous answers so we have nothing further to add.

14. Do you see any problems in a requirement that investigatory bodies (such as
professional regulators, coroners and the police) must apply to the High Court if
they wish to gain access to information obtained during investigations by the HSIB
or by or on behalf of providers or commissioners of NHS-funded care? !
Yes, for the reasons set out in previous answers.

We regard it as abhorrent that the police and coroners should be expected to divert
resources and public money to apply for access to information in order to conduct
investigations. They should not have to so to such absurd lengths to prise information out
of the NHS in order to perform their duties.
A coroner recently halted an inquest to consider whether NHS staff may have tampered
with evidence.
http://www.bbc.co.uk/news/uk-england-38004295

The existence of serious and potentially criminal allegations involving an NHS trust
and its lawyers illustrates that your proposals to entrust NHS organisations with
their own “safe space” investigations and make it more difficult for the police and
coroners to do their jobs is inappropriate, offensive to patients and families, and
dangerous.

15. Do you have any concerns about the use of the phrase “safe space” in relation
to this policy; and, if so, do you have an alternative preference?

We think the principle of “safe space” is thoroughly discredited in these proposals. That is
far more important than what it is called.

16. Do you see any problems in exempting information obtained during healthcare
investigations from access under the Freedom of Information and Data Protection
regimes?

Yes – it would simply create a bigger “safe space” for the culture of lies and cover up which
pervades many parts of the NHS.

17. Do you agree that guidance, or an alternative source of support, should be
developed?

It is essential that nobody is allowed to be an investigator unless they have been trained
and gained experience in conducting investigations. The HSIB must set the standards.

18. Do you think it would be helpful for NHS staff to be supported by a set of agreed
national principles around how they would be treated if involved in a local safety
incident investigation; and, if so, do you have any suggestions for the areas that
such a set of principles should cover?

The HSIB should set the standards and they must be mandatory.

19. Do you have any concerns about the impact of any of the proposals on people
sharing protected characteristics as listed in the Equality Act 2010?

Yes, because they take no account of patients and families who have protected
characteristics as listed in the Act and whose experience is that these protected
characteristics are deliberately used against them to undermine them and their evidence in
investigations.
Also we allege, based on our experience and supporting evidence, that rights of
patients, families and witnesses under the Data Protection Act 1998 and the Human
Rights Act 1998 are routinely breached by public authorities, including the Parliamentary
and Health Service Ombudsman (PHSO) during investigations.

Where complainants and witnesses allege breach of any or all of the Equality Act
2010, the Data Protection Act 1998 and Human Rights Act 1998, by NHS
Organisations, investigations must automatically be referred to the HSIB. 

20. Do you have any concerns about the impact of any of the proposals on families?
If you envisage negative impacts, please explain.

Yes – we believe that the proposals will merely create a bigger safe space for the NHS
cover up culture and make it more difficult for families to access truth and justice – for
example by making it more difficult for police and coroners to carry out their duties.
There is an urgent need for a system to deal with complaints and incidents concerning
patient safety, staff conduct and leadership failings at an early stage because NHS trusts,
commissioners and regulators have demonstrated time after time that they are incapable
of:
a. conducting investigations and disciplinary proceedings according to standards of
accepted best practice.
b. treating patients, families and witnesses in a just manner.
c. resisting the urge to defend, delay and deny.
HSIB, which is only resourced to investigate thirty cases per year is unlikely to have any
real and sustainable impact on the problem. Replacing corrupt and failing leaders with
people of the calibre to deliver a just investigative culture is required to kick-start real
improvement.

We conclude by focusing on the concept of “safe space” in relation to the PHSO (and the
future Public Service Ombudsman) and wish to make the following points:

1. We believe that the concept of “safe space” will be used by NHS organisations to
further reduce transparency for the complainant patients and families.
2. The PHSO must develop more transparent investigation methods, sharing the
information received with all parties throughout the process and before decisions are
made. This is contrary to the idea of “safe space”.
3. We are concerned that once the HSIB uses the safe space model it will be taken up
and used by the PHSO to further prevent access to evidence and fair appraisal.
4. We believe that Parliament is missing an opportunity in respect of ombudsman reform
by failing to adequately consider the ways in which the ombudsman could more
effectively support complaint resolution. For example:
a. By adopting the model used in Scotland whereby a complainant can approach the
ombudsman within 20 days of raising a complaint if it has not been resolved at local
level. This would prevent local organisations from deliberately delaying the process.
b. On receipt of complaints the ombudsman could, before considering a full
investigation, be involved in supporting local resolution through mediation – similar
to alternative dispute resolution in legal cases. This would reduce the number of
complex investigations, save public money, provide early resolution – which would
minimise distress for all concerned, and provide opportunities to learn and
implement lessons when the events are fresh. We believe that this process could
work for well over 50% of the cases eventually investigated by the ombudsman
under its current practices.

14th December 2016