Watchdog warns its powers will be weakened by Health and Care Bill reforms

Rob Behrens, the Parliamentary and Health Service Ombudsman, said plans to create a “closed safe space” for the information provided by clinicians to the Healthcare Safety Investigation Branch will mean a reduction in his powers and he will not be able to hold HSIB to account.

Mr Behrens, speaking at HSJ’s Patient Safety Congress, said that although coroners would be able to access information gathered by HSIB investigations under the reforms, the ombudsman would not be able to access this “safe space” without the permission of the High Court.

The reforms would see HSIB become a new statutory independent organisation, the Health Service Safety Investigations Body, and prohibit the disclosure of “protected material” such as information or documents obtained during investigations.

However, this prohibition of disclosure would not apply to information required by coroners, ordered by the High Court or necessary to investigate an offence or address a “serious and continuing” safety risk to a patient or the public.

HSIB has previously called for this “safe space” from disclosure due to concerns some staff have been reluctant to provide information without it.

Mr Behrens welcomed HSIB being given legal status and said he had a “very good relationship” with the watchdog. But at the congress on Monday, he said: “Where we have a problem is that there is a proposal to create a safe space in which, as part of their work, clinicians can disclose to HSIB investigators what really happened without the possibility that they will be held to account for it. That is called a safe space.

“Although a coroner will be allowed to go into that, the ombudsman is being excluded. The ombudsman will not be allowed to go into the safe space without the permission of the High Court.

“This is a reduction in the power of the ombudsman, it means we can’t hold HSIB to account for what it’s doing and, thirdly, it means there’s a judicialisation of the ombudsman process because we’ll have to go to court if we want to look at something that HSIB has done.

“The final problem about it is that we all want to create a just culture. I don’t think you create a just culture by creating a small safe space, because what do people think about what’s outside the safe space? It’s an unsafe space. It’s encouraging people not to talk, so I’m not sure it’s a good idea.”

Mr Behrens added the ‘safe space’ move “is the first breach of my power since 1967” and “a contravention of the Venice principles on the ombudsman”. He said he would give evidence about this issue to the Venice Commission – an advisory body to the Council of Europe on constitutional law.

HSIB medical director Kevin Stewart thanked Mr Behrens for acknowledging their “positive working relationship,” but disagreed with his views on the “safe space” proposals.

He said that in Norway, which is also party to the Venice principles, the equivalent body to the HSIB, UKOM, has since 2019 ”operated effectively with legally-binding safe space principles which excludes the Norwegian ombudsman”.

Mr Stewart added: “The HSSIB will be subject to the jurisdiction of the ombudsman just like any other public body within their remit. The PHSO will have recourse to the High Court if they really think they need to see the original witness statement of individuals who are taking part in an HSSIB investigation.

”[A] ‘safe space’ is designed to encourage staff to share information with safety investigators that they might be unwilling to share for fear of victimisation, but it does not absolve individual clinicians from accountability.

”Rather, the chief investigator has a legal obligation to disclose any information to an appropriate authority if there is [an] ongoing and immediate risk to patient safety.

“There have also been rare occasions when we have alerted relevant national bodies to emerging patient safety risks. This has ensured an appropriately supportive response for the organisations and individuals concerned.”

A Department of Health and Social care spokesman said: “A robust ‘Safe Space’ policy is integral to the success of the Health Services Safety Investigations Body (HSSIB), and we want clinicians to feel confident to speak up when something has gone wrong.

“The HSSIB, just like many other public bodies, falls under the jurisdiction of the Parliamentary and Health Service Ombudsman – which will still be able to obtain material and information directly from primary sources, for example from medical records, NHS trusts and individuals.”

Updated at 9:50am, 23 September to include DHSC comment.