New safety regulator could be given power to fine trusts

Under the plans, the government would also give HSIB powers of entry and to seize information, physical documents and equipment linked to a safety incident.

The plans are part of the government’s draft health service safety investigations bill, which is designed to give HSIB statutory independence from the NHS and the Department of Health.

As part of the proposals, hospitals and individual staff could be fined up to £20,000 for failing to cooperate with a HSIB investigation.

The bill was part of the Conservative manifesto but was reduced to a draft bill after the party failed to achieve a majority. It could delay the bill coming into force until 2018-19 or beyond.

The power of entry will allow HSIB to inspect premises owned by the NHS or used in the provision of NHS funded services. An investigator will have the power to inspect and seize copies of documents, equipment and other items. They will also have the power to interview staff and require electronic information to be printed so it can be taken away.

If necessary, HSIB chief investigator Keith Conradi will be able to apply for a warrant if a trust or individual has not complied with a request for information.

When someone fails to comply with a notice, a fixed penalty of up to £20,000 could be imposed by the chief investigator and recoverable by HSIB as a civil debt. This could also apply where people provide information which they know or suspect is false or provide equipment which has been tampered with. There will be an appeals process.

The bill will give legal force to the “safe space” protections, which means HSIB will be barred from releasing evidence obtained through its investigations to any outside body or person unless ordered to do so by the High Court.

Ministers plan to give HSIB powers to accredit NHS trusts to carry out similar safe space investigations, despite concerns the powers could be misused and make it easier for trusts to victimise staff who are open about mistakes.

An impact assessment from the DH said it envisaged no more than 20 trusts being accredited, adding: “There is no expectation that all NHS trusts or even the majority of NHS trusts will be accredited.”

If its passed, the bill requires HSIB to involve patients and families in its investigations and to publish a document explaining how it will do this in an easily accessible format.

Other elements of the proposed legislation include:

• HSIB will be required to have regard to submissions from the health secretary before deciding whether to investigate an incident. It must consider any request made by the health secretary to carry out an investigation.
• In line with existing powers over other NHS bodies, the health secretary will have the power to direct the branch to exercise its functions.
• Neither HSIB nor an accredited trust will disclose information or documents linked to investigations. This will not apply to documents in the public domain.
• Where information shows evidence of a crime or a continuing risk to safety it can be disclosed by HSIB and accredited trusts.
• Organisations will be required to respond to recommendations of action by HSIB.