Healthcare Safety Investigation Branch (HSIB) ordered to disclose transcripts of interviews with clinicians – does patient safety risk being compromised?
Legal Development 19 October 2023 19 October 2023
UK & Europe
As part of a claim for clinical negligence against an NHS Trust, representatives for the Claimant patient have succeeded in obtaining an order for disclosure of transcripts of interviews with clinicians undertaken by the HSIB as part of their investigation. What does this mean for clinicians who have, or will be, involved in patient safety investigations?
The court has ordered disclosure of transcripts of interviews with clinicians, obtained as part of a HSIB investigation, in connection with a claim for clinical negligence being pursued on behalf of a 3 year old boy born at an NHS Trust in 2020.
The child collapsed while on his mother's breast following birth and suffered a neurological brain injury. HSIB undertook an investigation of the incident, which included interviewing the treating clinicians.
As part of the claim it is alleged that the parents asked the midwives to check the child after he stopped moving and that the midwives failed to reposition him, causing a hypoxic brain injury.
Legal representatives for the child made an application for an order for specific disclosure of the interview transcripts against the NHS Trust, and an order for non-party disclosure against the HSIB. The HSIB argued that disclosure would compromise the “safe space” necessary for open interviews, in future clinicians would be less willing to assist with HSIB investigations and that it was in the public interest for HSIB investigations to benefit from the “safe space”, to help prevent patient harm.
The court made an order for non-party disclosure against HSIB only, disagreeing that the "safe space" would be compromised if the order were to be made.
The role of the HSIB
The HSIB was an independent arm’s length body of the Department of Health and Social Care, tasked to investigate patient safety, share learning and support patient safety improvements for NHS care in England. It largely undertook investigations for incidents reaching certain criteria as part of its Maternity Investigation Programme.
Maternity investigations now fall within the remit of the Care Quality Commission (CQC) under the Maternity and Newborn Safety Investigation (MSNI) after the HSIB ceased to exist on 30 September 2023.
HSIB’s “safe space”
One of the aims of the HSIB was to foster an open, learning, no-blame culture, the objective being that clinicians who feel able to contribute to an investigation openly in a “safe space”, without fear of potential reprisals for doing so, are more likely to provide a useful insight into the root causes of patient safety incidents. This should result in an increased ability to make more impactful recommendations to improve patient safety.
Ensuring clinicians can provide input into investigations in a “safe space” remains a key aim of the MSNI and the newly formed Health Service Safety Investigation Branch (HSSIB), which has a more general mandate of investigating patient safety concerns across the whole of the NHS. The Health and Care Act 2022 formalised the HSSIB’s position that material obtained as part of its investigations has the benefit of legal privilege, allowing for greater protection of the “safe space”.
It appears that in this specific case, there was a crucial argument that tipped the court in favour of ordering disclosure. The case concerns a factual dispute, and the witness evidence of the midwives would likely be crucial to the crux of the case.
It is concerning however that the court disagreed that its order could compromise the “safe space”. The HSIB always caveated its reassurances to clinicians that they can freely input into an investigation in a “safe space” with the proviso that its investigation evidence could become disclosable via a court order. The courts have, however, historically placed a high bar on making such an order.
It seems inevitable that this order will result in more applications for non-party disclosure against bodies undertaking patient safety investigations. Whilst any such applications will be considered on a case by case basis, where does this leave clinicians who are asked to input into future investigations? Those undertaking investigations who want to provide clinicians with assurances about the “safe space” will no longer feel as confident doing so.
There is a very fine balance to consider here, both in the sphere of patient safety investigations, and the medical world generally. On the one hand, patients have a desire and need for clinicians to be open and transparent, so they understand what has happened, why, and what steps are being taken reduce patient safety incidents occurring again. The introduction of the duty of candour sent a strong message to clinicians that openness with patients is not just encouraged, but required.
On the other hand, without strong assurance that they can confidently input into investigations in a true “safe space”, many clinicians may fear reprisals for doing so, whether for reputational or regulatory concerns, or a fear of claims. In most cases clinicians should not have such fears, but that does not mean they won’t. Ultimately, if the “safe space” is compromised, it is to the detriment of anyone using the NHS, clinicians and patients alike.