Oral evidence: Draft Health Service Safety Investigations Bill, HC 1064Monday 25 June 2018

Oral evidence, 25 June 2018.

Witnesses

Caroline Dinenage MP, Minister of State for Care, Department of Health & Social Care, William Vineall, Acute Care and Policy, Department of Health & Social Care, and Jennifer Benjamin, Deputy Director, Quality, Patient Safety and Investigations, Department of Health and Social Care, gave evidence.

Chair

I welcome the Minister and her officials to this session on the draft Health Service Safety Investigations Bill. I wonder if you could just identify yourselves for the record.

William Vineall

I am William Vineall. I am director of acute care and quality policy at the Department of Health and Social Care.

Caroline Dinenage

I am Caroline Dinenage. I am the Minister of State for Care at the Department of Health and Social Care.

Jennifer Benjamin

I am Jennifer Benjamin. I am deputy director for quality, patient safety and investigations at the Department of Health and Social Care.

Chair

Can I just say first of all that we are extremely grateful for the help and support we have received from your Bill team? They have been very helpful and informative. There is a very good relationship between the Committee and the Bill team, and that has helped us with our inquiry a lot. To ask the top-level question to start with, what do you understand the purpose of HSSIB to be, and how will it achieve that?

Caroline Dinenage

First of all, I thank you, Chairman, and all of you for inviting us to give evidence and, more specifically, for all the incredible work that the whole Committee has put into this important Bill. To us, it is important because we want to ensure that our NHS is the safest and most transparent healthcare system in the world. To achieve that, it is absolutely fundamental that those who work in the NHS must feel safe to speak up when safety incidents occur. They must feel free to do that without any fear of blame and feel confident that there will be system improvements that result. The Bill represents a real opportunity for us to provide a step change in the way that we look at patient safety in the NHS. As you all know, the aim is to create an independent body that will carry out the investigations to identify the systemic issues that they find and make recommendations for improvement, but also to drive improvements in the standard of investigations as well. That is very important to underline. In the same way that a cover-up culture has hampered learning, a blame culture can prevent staff from being open when things go wrong because of a fear of retribution, so getting the culture right is absolutely critical in this. That is why we want the new body to operate using the safe space philosophy so that people can be confident that they can be open and honest in investigations and so that we can continue to learn and improve. Over time, we would also like the body to be able to accredit other NHS trusts and foundation trusts so that they can carry out their own safe-space investigations, so that this culture of learning and openness can continue to spread up and down the country. I also wanted to say that I know you have spent a lot of time taking a lot of evidence and gathering views from a number of different professionals, in person and in writing. We are very keen and open to hear all the thoughts and feedback from the Committee as we move forward with the Bill.

Chair

Thank you very much indeed. How do you expect HSSIB to be able to contribute to an improved system of investigation and to provide resolution for patients and their families, who often are the ones who most want the answers, not in order to punish people but in order to help make sure that the same thing does not happen again?

Caroline Dinenage

Yes, that is where HSSIB has such a unique role. We know that where a problem is identified quite quickly, processes can be put in place quite quickly to identify what went wrong and what needs to happen to stop that ever happening to any other families and patients again, and to stop others having to suffer in the same way. We know that that is what drives the families, and is at the heart of everything they are concerned about. When things go unresolved and go on for years and years—I speak as the Member of Parliament for Gosport—that is when people are less concerned about the lessons learned and become very focused on accountability and who to blame, because for so long they are not listened to and their issues go unresolved. That is where HSSIB has a really important role—to drive that systemic change and improvements to make a massive cultural difference.

Chair

Are you concerned to an extent that HSSIB might raise expectations among patients and their families beyond what HSSIB can deliver, particularly at the outset, because obviously it is a very small organisation?

Caroline Dinenage

I am not sure how well known HSSIB is at the moment. I don’t think many people are actually aware of it. It is really important that it starts in a very slow, controlled and measured way, and is able to do all its investigations fully and in its own time and build up that reputation. As you know, it will take only a very small sample of things from which we think the most learning can be gleaned and the most systemic change can be brought about. It will not be a panacea to all the problems of patient safety across the national health service and beyond, but we would like to think that it fulfils a very important role in driving that patient safety ethos across the NHS.

Dr Williams

Minister, you just said, very sensibly, that it should start up slowly and build up its capacity, so why was it asked to conduct 1,000 maternity investigations in addition to being asked, when it was conceived, to conduct 30 investigations a year, with the budget given for 30 investigations?

Caroline Dinenage

They are slightly different investigations. The 30 are, as you know, full investigations above and beyond anything else that has happened within the hospitals. Later on—a year later—the 1,000 maternity cases came about.

Dr Williams

Tell us the rationale for why.

William Vineall

Part of the rationale for doing it is that we felt as part of the maternity safety strategy that, as well as the royal colleges looking and learning from these 1,000 cases, we needed to investigate them for the same general purposes of HSSIB—to have systemic learning across the system and to get that out as quickly as possible. We felt that there was a particular case to do that in maternity services.

Dr Williams

Will they be a safe space?

William Vineall

They won’t be in a safe space. They are not in safe space, because they are meant to be the single investigation that covers both the clinical uncovering of the information and satisfaction for the families. Also, there is a slight difference—without getting into too much detail—that if you have a small child who has died there is an obvious thing that you keep it contained in that way. So we did not think safe space was necessary in those instances.

Baroness Chisholm of Owlpen

Caroline, leading on from what you said earlier about taking only a small sample, how did the Department establish that it should undertake only approximately 30 cases per year? What was the reason for that?

Caroline Dinenage

We were very keen that the investigations carried out were incredibly focused and very effective. There are 24,000 safety incidents every year across our NHS. It is very different from the accident investigation procedure. If that number of safety incidents were happening in aviation there would be planes falling out of the sky all the time. We had to choose a number where we felt that we could make the biggest learning—the incidents that have the biggest learning across our health service. It is not about finding the root of individual cases. It is more about a systematic change and the greatest potential for learning across the system. We wanted that to be to a very high standard. I take it that Ministers took advice and 30 was the number that was decided upon.

Baroness Chisholm of Owlpen

Do you feel that the reason for that is that the 30 most serious incidents that happen each year will also be those incidents from which people will gather the greatest prospect for learning? Is that the reason?

Caroline Dinenage

That is right. HSSIB will choose what it looks at, but they will be things where it feels that there is massive potential for learning and change across the health service.

Lord Kirkwood of Kirkhope

I was curious as to why the power was not given in the draft Bill to the investigations board in cases where there are no specific complaints but where there were wider issues that the organisation could take on of its own accord. Was that deliberate? Is it a resource-related issue? Why are we not giving HSSIB more jurisdiction over what it investigates?

Jennifer Benjamin

The new body will have jurisdiction to decide what it investigates. As with the current Healthcare Safety Investigation Branch, we anticipate that it will be notified of incidents, but that it will also operate a surveillance system that allows it to understand what incidents are being reported by the NHS. It is reactive and also has a proactive way of identifying concerns.

Lord Kirkwood of Kirkhope

But they need a complaint or an approach or evidence being submitted. It cannot of its own accord decide to undertake a piece of work on a wider basis, under the power given to it in the draft Bill—if I understand it properly. Is that correct?

Jennifer Benjamin

We can come back and clarify exactly how the Bill is drafted, but certainly our intention is that the new body should not be constrained in any way in terms of the type of incidents that it chooses to investigate, so it does not have to be notified or it does not have to receive a complaint, but we are more than happy to clarify that if it is not particularly clear in the Bill as it is drafted.

Lord Kirkwood of Kirkhope

Let me tell you why I am asking the question in precise terms. One of the biggest concerns that I personally have in this area is the result of staff shortages coercing junior doctors and nurses in a workplace setting to do things that are unsafe—to do shifts of work, when they are understaffed to the extent that they are risking patient safety—and that they are obliged to do because they are coerced by their consultants or senior management to get on with it—a “We are where we are—we did it in our day; you get on with it now or else we will see you in your annual review” kind of approach. Presumably if we are looking for a safe and transparent system, Minister, the investigations board should be able to deal with that. Am I right?

Jennifer Benjamin

Absolutely, yes.

Caroline Dinenage

That is the intention. The intention of the Bill is that the branch should be able to choose what it investigates and that is why it is independent of the Government. If the Bill is not worded to reflect that, I am grateful that you have drawn that confusion to our intention. We certainly would intend to rectify that.

Chair

Of course, in the draft Bill, nobody has actually got any obligation to notify HSSIB of any particular matter

Caroline Dinenage

Two systems currently exist—

Chair

I appreciate that, but it has got to use its own resources or own devices to discover what is going on. That may be fine, but what we are trying to add to that is that whatever HSSIB feels should be investigated, it should be able to investigate. That is your intention.

Caroline Dinenage

Indeed, that is the intention.

Chair

So we could clarify that in the Bill if we wanted.

Caroline Dinenage

We will, yes. Absolutely.

Mr Jones

As you know, health is a devolved competence in Northern Ireland, Scotland and Wales. Particularly in the border areas, healthcare is frequently delivered for patients from one jurisdiction in another jurisdiction. What discussions have you had with the devolved Administrations to develop a policy whereby HSSIB can investigate in those areas?

Jennifer Benjamin

The first thing to say is that health is a devolved matter, but when we were drafting the Bill and developing the policy, we were very much aware of the practices, particularly Scotland and the national patient safety programme they have initiated in that country. We also consulted the devolved Administrations on the draft Bill itself. We certainly engaged with devolved Administration officials and Ministers, but the Bill has been drafted with the intention that the body should operate within England.

Mr Jones

For example, the Countess of Chester Hospital in Chester is the principal general hospital for people who live in Flintshire, just across the border. If there were an incident at the Countess of Chester that affected a patient from Wales, how would HSSIB approach that?

Jennifer Benjamin

In principle, the new Health Service Safety Investigation Body would be investigating incidents that occurred on NHS premises or services that were funded by the English NHS. It would have scope to investigate providers that provided care for NHS-funded patients. There should not be a restriction in terms of geography. However, responsibility for the new function would follow where NHS funding occurred.

Mr Jones

Frequently it is not quite as simple as that. For example, in Wales you can get a course of treatment that starts in Wales and then goes to Shropshire or Liverpool and then comes back to Wales. If you look at that course of treatment as a whole, is that not something of a quandary for HSSIB?

Jennifer Benjamin

We recognise that the Bill as drafted at the moment only enables the new body to investigate services for patients who are provided with care funded for the English healthcare system. I do not think that would entirely restrict it from looking at a patient pathway, and if that patient pathway meant services outside the English NHS, I would imagine that there might be some flexibility there. We have not drafted that into the Bill because, as I have said, healthcare is a devolved matter, but we are more than happy to consider the Committee’s views on that and to consider that at some point in time.

William Vineall

If you are saying that HSSIB should have the ability to follow a patient who starts treatment in England, goes into Wales and then comes back, that sounds pretty logical and we can take that away and check it. There is a difference if people are Welsh patients starting their treatment in Wales; that is a slightly different matter, because health is devolved, so it would be for Wales or Scotland or Northern Ireland to decide whether they wanted an equivalent body to do similar things. If they did, one would hope that the principle would apply across the border as well.

Mr Jones

Ms Benjamin referred to building some flexibility into the system. I am intrigued to know how you can achieve that flexibility, given the fairly rigid devolution settlements we have in this country.

William Vineall

I think we would go away and see, within the bailiwick of the English NHS and HSSIB, where there are patients treated in that country, whether they come from England or Wales, who then moved over a border to receive a component of that treatment, whether there was a way that HSSIB could follow those people through logically, using common sense. I am saying that we cannot make any decisions about the reverse journey, because that is a matter for the devolved Administrations.

Mr Jones

What discussions have you had with the devolved Administrations?

Chair

Before we move on to that, can I just highlight something? Very often it is the patients who are reluctant to speak out, because they do not want to criticise the clinicians. They do not want bad things to happen to the people who cared for them or their loved ones. They need the safe space. If something has happened in an English jurisdiction, but the patient comes from somewhere else, do they have to come across the border to be able to speak in the same safe space? It is the same for a clinician who might want to speak out about a safety issue. Do they have to come across into England to be protected by the safe space?

William Vineall

The honest answer is that I cannot tell you categorically, but the fact is, I suppose, if somebody were in Wales and they had a concern about the Welsh health service and they were employed there, you would expect them to speak up in Wales, because health is devolved.

Chair

But there is no safe space in Wales.

Caroline Dinenage

We can only really deal with complaints about care pathways that start in English hospitals, regardless of whether they are concerned with Welsh patients or anyone else. Therefore, that would be where the complaints procedure would happen and they would be protected by the safe space.

Mr Jones

These are not infrequent occurrences.

Caroline Dinenage

I understand that.

Mr Jones

Most of my constituents who seek specialist care will actually receive it in England.

Caroline Dinenage

Exactly right, but the inquiries will not be about the patient or where the patient comes from. The inquiries will be about the hospital or the care provider and where they are located.

Mr Jones

I appreciate that. My concern is that, frequently, as part of a course of treatment, some is delivered on the Welsh side of the border, some in England. Take, for example, Walton, which is the centre of excellence for neurosurgery and is based in Liverpool. Walton also has a satellite unit in north Wales. You will have the same physicians, the same doctors, treating patients both in Liverpool and in Bodelwyddan. I am wondering how HSSIB would deal with a surgeon who may be carrying out a course of treatment, part of which is in Liverpool and part in north Wales.

Caroline Dinenage

I think the answer is it would depend on where that care pathway started and who was paying for it. If the care is being paid for by NHS England, that would come under HSSIB, and if it were NHS Wales, they would have their own system.

Mr Jones

But it is Walton that is delivering the treatment. It is a satellite of Walton, the same hospital, but it is delivering it in north Wales. It is the same hospital; it’s just that it’s a satellite service.

William Vineall

We will have to come to back to you on that specific example. We have established the principle—

Caroline Dinenage

Presumably, it’s a satellite of a hospital that is based in England, in which case—

Chair

When you come back to us, can you at least clarify that HSSIB’s investigation functions can be conducted in relation to any incidents occurring in England, including where a significant causative factor takes place in England?

Caroline Dinenage

Yes.

Chair

That is the intention, but we need—we have this wider question as well.

Dr Whitford

If you could clarify, Minister: you talked about it depending on who was funding the original pathway. Is it not really that it will relate to where the incident is? Regardless of whether it’s an English or a Welsh patient, if the issue happens in an English hospital, HSSIB isn’t going to ignore it because it is a Welsh patient.

Caroline Dinenage

No, but in the case of a situation funded by NHS England but part of it was delivered in Wales, because it was a satellite—

Dr Whitford

Obviously, this issue is about a satellite hospital. I don’t know whether this satellite counts as an English hospital in Wales or—

Caroline Dinenage

I would have thought so.

William Vineall

It does, if it is under the aegis of the trust that is registered with the CQC in England, but we can check that.

Dr Whitford

That is a very unusual situation that you can look into.

Caroline Dinenage

That is why I am so pleased we came.

Dr Whitford

But in a general situation, it would be the site of the incident, as opposed to the patient moving around.

Caroline Dinenage

Exactly right. It is not to do with the patient; it is to do with the site.

Mr Jones

I hate to take issue with Dr Whitford, but in north Wales it is not an unusual occurrence. It happens very frequently and a lot of clinicians who are based in England, with high degrees of expertise, carry out their services both in England and in north Wales. It does seem to me that this is a grey area and we would appreciate more detail on that. I am just wondering what discussions you have had with the devolved Administrations about establishing HSSIB. Certainly so far as the Welsh Assembly Government are concerned, they would be fully aware of the sort of issues that we are discussing now.

Jennifer Benjamin

I am sorry, I did not get the first part of your question.

Mr Jones

I was just wondering what discussions you have had with the devolved Administrations and I was making the point that so far as the Welsh Assembly Government are concerned, they would be very much aware of the sort of issues that have just been outlined.

Jennifer Benjamin

We can come back to you with more detail on how we consulted the devolved Administrations, but as I said, we have fully consulted the devolved Administrations. The issue, as you describe, with regards to some of the issues around boundaries and where patients may be treated, as far as I understand—and I can confirm this—did not come up as a particular issue as we were developing the Bill. We can come back and clarify that for you.

Mr Jones

Do you anticipate that any of the devolved Administrations will want to replicate HSSIB domestically?

Jennifer Benjamin

It is difficult for me to know if they want to replicate it.

William Vineall

We don’t know.

Caroline Dinenage

Scotland are considering setting up their own.

Mr Jones

Do you know whether any of the devolved Administrations might want to opt in to the HSSIB process, which might be sensible, given the sorts of issues we have been discussing?

Caroline Dinenage

As I said, I think Scotland are considering setting up their own investigating branch. I don’t know the conversations that have been had.

Jennifer Benjamin

We don’t know. We are more than happy to come back to you. We haven’t had the sorts of discussions you are alluding to as to whether, first, the other devolved Administrations—with the exception of Scotland—would want to replicate this type of functions, or secondly, whether they would want to opt in. That is not the level of discussions we have had with the devolved Administrations.

Mr Jones

Do you think that those discussions should take place?

William Vineall

I know exactly what you are driving at. It is quite important that the devolved Administrations make their own decisions, because they are devolved Administrations. That is not just an official’s answer, it is a fact of the governance that we have.

Mr Jones

One does not want to intrude on the boundaries of the devolution settlement, but by the same token one wants to make sure that patients actually get—it is not exactly redress—their particular issues investigated, especially when it is a cross-border issue, as we have talked about.

Dr Whitford

Obviously, Scotland have expressed that they might be looking at something similar. I don’t think they would opt in, given that, with our national patient safety programme, Health Improvement Scotland, our whole system is different and is much more front-loaded on prevention. We don’t have the CQC. It is a very different system. I think there are also probably slightly fewer cross-border issues as there clearly is between England and Wales, although there are some, particularly in Carlisle. However, I don’t see Scotland opting in.

Chair

But we want the capability of cross-border co-operation.

Dr Whitford

I would hope that there would be, particularly if there was clinician working on both sides whom there were suspicions around. The GMC is UK-wide, and one would hope that Governments and agencies would co-operate.

Caroline Dinenage

That is a very good point, because people move around a lot in health.

Chair

And indeed across the Northern Ireland border.

Dr Whitford

As Care Minister and the local MP for Gosport, how do you think the events in Gosport might have been prevented if HSSIB had already been in existence?

Caroline Dinenage

I have to be very careful at this point, because when I became Care Minister in January I took steps to recuse myself as Care Minister from this particular issue because I wanted to be able to speak up on behalf of my constituents. I knew that the document was ongoing and would be published in June. I am unable to speak specifically about Gosport myself, for reasons that you will understand.

Chair

Can your officials take these questions?

Caroline Dinenage

My officials can definitely take them. They know how I feel.

William Vineall

I was the official in the Department responsible for establishing Gosport in the first year, up to the terms of reference. Obviously, the fact that the report came out was very good, even though the report was shocking. I read some but not all of it over the weekend. Two things struck me. First, there were a number of occasions a long time ago when quite a lot of people were inclined to do some kind of investigation or other, but one reason why they didn’t was because there wasn’t a body that was effective at doing investigations, so it pinged around a lot of different agencies. I think a first learning point is that an investigatory body like HSSIB, with an established and well-known expertise, would be useful in situations like that. Secondly, whatever else it does, HSSIB would be able to get the facts of the situation out in relatively real time. As the Minister said at the start, one thing that we have suffered from in the health service in recent years is that whistleblowers have often been the route to uncovering problems, but it has taken a long time for the bureaucracy to respond. I think that my second learning point is that, if you had HSSIB there, it could be more responsive. Clearly, something like Gosport would then not have to be an historic review; it could be something that was current. Those are my two main learning points.

Dr Whitford

From your first point, you would obviously hope that HSSIB being able to react more quickly and with expertise would have made a difference. You referred to whistleblowers, which is something I have quite a lot of concerns about generally. As a clinician, all of us see people who have tried to speak up and who have lost their career. Unless that injustice is dealt with, it is all very well talking about a duty of candour or anything else, but for somebody literally tussling with their conscience, it will be about feeding their family and having a career. Will whistleblowers be able to ask HSSIB or report an issue to HSSIB? Is it envisaged—it is not particularly in this Bill, but perhaps in a separate piece of work—that the suffering that whistleblowers currently face will be reviewed? They do not have the protection that they often think they have when they set off to raise an issue.

Caroline Dinenage

Absolutely. Whistleblowers will be able to raise their concerns. Those who do so will be protected by safe-space provisions. More widely, in answer to the second bit of your question, we are really committed to move forwards in the NHS and see whistleblowers as a massive asset, and to people receiving the proper support that they need at a time when they are doing something that is incredibly brave and courageous. We rely on people who are prepared to speak up and express concerns at a time when it is incredibly difficult for them to do so in order to improve patient safety. That is why it is key to everything we want to do.

Dr Whitford

Obviously, whistleblowers should not be the basis of a patient safety system—they are a sign that the patient safety system has failed—but they can prevent it going over the cliff. Unfortunately, at the moment, there are reams and reams of them who feel that PIDA does not protect them and that they suffer detriment at work and so on. Do you envisage that as a separate piece of work? It is not in here.

Caroline Dinenage

Separate work is already ongoing with regards to whistleblowers. We have the local Freedom to Speak Up system, which is growing. The guardian network has 560 people in its ranks and is growing all the time. It is an ongoing piece of work that we are very passionate about.

Dr Whitford

Would you look at the reform of PIDA, which is 20 years old, to give people the protections that are available in other countries?

Chair

PIDA?

Dr Whitford

It is the legislation that is supposed to protect disclosure—the Public Interest Disclosure Act. In 1998, it was kind of a great thing, but the tide has moved on and it is actually very weak. A lot of whistleblowers think that they will be protected, and then suddenly discover that they are not really.

Caroline Dinenage

All Government legislation could do with the occasional once-over to ensure that it is still up to date and protects the people it set out to protect.

Dr Whitford

It is clear that people came forward years ago and were ignored, and if people are not ignored, they seem to suffer detriment. We just do not have a good attitude to it.

Andrew Selous

What role will HSSIB have in looking at mortality data and taking action on it?

Jennifer Benjamin

As I said, at the moment, the Healthcare Safety Investigation Branch aims to gather a range of intelligence from a variety of different sources. I would envisage that mortality data would be another form of intelligence for the new body. Primarily, it will focus on incidents where, as the Minister explained, there is the greatest opportunity for learning. If the mortality data was a source of intelligence that would help in its investigations, I would imagine that the branch would use it.

Andrew Selous

This is a question I raised with the Secretary of State when we had the urgent question last week. He confirmed that the mortality data for Gosport very clearly showed a huge rise in mortality and then a drop. Over the weekend, it also came out that when people had tried to draw the attention of the Department of Health to that mortality data, it was almost as if the Department did not want to know. To rephrase my question, if there is a significant and sustained spike in mortality data, what will HSSIB do in future? There is only any point in setting up HSSIB if alarm bells ring and action is taken. For me, the most shocking thing is that the mortality data clearly spiked and clearly came down, and actually no one in the Department of Health seemed to want to do anything about it.

Jennifer Benjamin

I would envisage that this new body would be interested in whether there are unusual variations or outliers in terms of mortality data. That would be a source of information of interest and relevance to the new body. I see no reason why that body would not want to investigate. Its focus will be on providers, so it will need to be able to identify the relevant providers where those occurrences might be. It would go through the usual processes, including making sure that that information fulfilled its criteria for investigation, so this is all very much dependent on what criteria the body operates on and whether that fits with the criteria. I would not say that the new body would rule out investigating mortality data. If it is appropriate, it certainly would pursue that kind of inquiry.

Caroline Dinenage

Don’t forget that a lot has changed in 20 or 30 years. We now have medical examiners. From April next year, every trust will have a medical examiner to look at every death, so we hope that there will be sufficient checks and balances to pick up anything at an individual trust level before HSSIB potentially has to look at a broader trend many years later.

William Vineall

Mortality data was not the acknowledged smoke signal that it is these days, so I think it would be a very useful piece of information for HSSIB when covering the piece and looking at investigations, and not ignoring it, as you said on Wednesday, for such a long time.

Diana Johnson

I understand the sensitivities around the Gosport independent panel, but I want to ask you, Minister, about the contaminated blood scandal, which the Department of Health is no longer responsible for; it has been moved to the Cabinet Office. Looking back, do you envisage that HSSIB would deal with it if we were ever faced with something like that again? Do you see how this could stop it becoming so prolific and widespread?

Caroline Dinenage

I am grateful to you for raising that. As you know, I have a number of patients in my constituency who are affected by contaminated blood. It is a national scandal that so many people died as a result of infected blood products. I would anticipate that if we had had HSSIB around in those days, as soon as somebody had drawn its attention to this it would have had the capacity to start an investigation and stop anything like contaminated blood or anything else being such a prolonged situation that happened over such a long period of time and affected so many people. The key is to pick up the learning early on so that others do not have to suffer.

Dr Whitford

Does the Department of Health review hospital standard mortality ratios and publish those? You said that HSSIB could look at them, but I assume that that is one of the standard data releases.

William Vineall

We receive them and CQC get them. They use them, maybe in a parallel to how you might expect HSSIB to use them, as a piece of information when they are going in and doing inspections.

Dr Whitford

But if someone was an outlier outside a funnel plot?

William Vineall

That would be one of a number of factors that might inform CQC, but it would not be the sole one.

Dr Whitford

So it would be CQC rather than your side?

William Vineall

Yes.

Dr Williams

Minister, a few moments ago you understandably expressed a wish that whistleblowers be granted safe space protection when they flag concerns with HSSIB. As the draft Bill is currently constructed, though, it provides that protection only to people who provide information to HSSIB investigations—technically, it is only if HSSIB decides to do an investigation that that person is protected. There is a risk that somebody might provide information to HSSIB and not be protected. Do you therefore think that perhaps the wording of the Bill should be changed to protect whistleblowers in the way that you have just described that you would like to see them protected?

Caroline Dinenage

That is something we can definitely look at. I am grateful to you for bringing it to my attention.

Jennifer Benjamin

I think you are absolutely right. At the moment, safe space allows for information from staff as well as patients and other witnesses to be protected during the course of an investigation. The Bill is very explicit about that, and has not looked at going beyond that in terms of protecting whistleblowers or other individuals in any other way. You are right: that is how the Bill is currently drafted.

Caroline Dinenage

That is a really interesting point, thank you.

Chair

There will be a recommendation coming your way of some description.

Baroness Eaton

The Secretary of State is said to have made some rather critical comments about independent providers. One independent provider has said it would welcome being part of this scheme where HSSIB could investigate. Why is the remit of HSSIB not extended to include the private sector?

Caroline Dinenage

That is a really good question. As the Bill is written, HSSIB can look at independent providers where they are providing work that has been commissioned and paid for by the NHS. You are looking more broadly. It is certainly something that we would be keen to hear the Committee’s recommendations on.

Baroness Eaton

Presumably, there would need to be a suggestion of how that should be funded.

Caroline Dinenage

Exactly. That needs to be taken into consideration. The Care Quality Commission can inspect independent providers so I suppose the jury is out on that. That is why we would be very keen to hear your thoughts on it.

Baroness Eaton

I am sure you will.

Chair

Thank you, Moving on, Lord Elder.

Lord Elder

I have a couple of questions on resources. How did the Government arrive at what looks like a suspiciously exact figure of £4.1 million for this organisation? In doing so, it looks roughly like what might be saved if we got rid of or managed to avoid public inquiries in health. It is a suspiciously exact figure. My second question has already been alluded to by another Committee member: that figure was arrived at before the decision was taken in some way to involve the 1,000 possible midwifery cases. Are there really no resource implications of that decision at all? Are you saying that the £4.1 million was set up anyway, and you can add in these further investigations without any implications for resources?

William Vineall

I can answer the maternity part and have Jennifer to answer the first bit on resources. The maternity investigations come with additional resources of about £9 million or £9.5 million. There is a separate calculation for those, because there is 1,000 of them.

Lord Elder

Sorry. Does the £9.5 million go into HSSIB? So the resources of £4.1 million have been more than trebled by that decision.

William Vineall

Yes.

Lord Elder

That is nice to note.

Caroline Dinenage

It is £9 million in addition to the £4.1 million, so the two are separate.

Lord Elder

That is quite a substantial change. Is the £4.1 million a legitimate figure that can stand up?

Jennifer Benjamin

It is approximately £4 million for the 30 investigations that the body is investigating at the moment. That is the current funding arrangement. You are absolutely right that there is additional funding to support the 1,000 maternity investigations, recognising that it would need that additional capacity to do so.

Chair

Baroness Billingham, my apologies, because we jumped to your question.

Baroness Billingham

Serious incidents requiring investigations that present the potential for learning are likely to be limited to one type of provider. How does the draft Bill ensure that all aspects of a care pathway can be examined by HSSIB? There is even greater integration between health and social care, but HSSIB does not extend to private or local authority-funded adult social care. Why on earth is that?

Caroline Dinenage

As you say, there is greater integration, but where care is funded by the NHS and a patient is taken into the social care sector, the HSSIB investigation can follow that care pathway. Currently, there is no provision in the Bill for there to be an entirely separate review purely into an adult social care provider if it is privately or local-authority funded.

Chair

There was a supplementary to Lord Elder’s question. What plans do the Government have to expand the capacity of HSSIB and to fund it in order to expand that capacity?

Caroline Dinenage

To start with, we want to work towards 30 investigations a year. As you know, HSSIB has just completed its first investigation and so it will take a while to get up to that sort of level. I think they are doing that with exactly the right approach—with a very slow, steady and professional attitude. Once they are up to the level where the 30 a year have been rolled out and all the learning from that has been secured, we are very keen to look at how that learning can be rolled out more broadly by having accredited trusts around the country—not millions of them initially, maybe just a handful that has been picked by HSSIB because they have the right sort of culture, who will be trained by HSSIB to be able to carry out their own investigations on their peers—and then, in the fullness of time, to carry out their own investigations on their own trusts. That is obviously looking quite a long way down the line, but we wanted to be make sure that the Bill was future-proofed, so that we were not coming back to you in five minutes asking for a different Bill.

Chair

That is an extremely interesting answer and I am sure it will provoke some discussion.

Baroness Watkins

I am sorry I was late—we had the amendment order on nursing in the House and I had to speak. We have had a lot of people say they are very concerned about a whole trust having a team that then goes and investigates somewhere else. They are not in any way anti the concept of people being accredited by HSSIB as investigators, but they believe that teams should be taken from different places and work together—not one trust looking at a particular issue. I have been fairly convinced by that argument, so perhaps you could respond.

Jennifer Benjamin

The way in which the new body will accredit organisations to carry out investigations—we have allowed for flexibility within the Bill to allow the criteria for accreditation to be consulted on. That will be a public consultation. Therefore at the moment there is no prescription as to how the accreditation process and the criteria for accreditation is going to work. That is open; there is scope for development. The principle of accrediting a trust to carry out investigations, specifically safe space investigations, is to enable local providers to build up that capability and capacity to carry out those investigations in the same way—a model of the type of investigations that the national body will be carrying out. That is about raising the standard and quality of investigations, developing a just culture of learning and allowing staff to be open and candid in those investigations. The principle is to spread a culture and practice of investigations that we believe will be successful and currently is being successful in other sectors.

Baroness Watkins

I completely follow that, and therefore follow that you would do that in a trust that would then look at its own problems. Let us imagine that it has five accredited people who are good at that. The concern is sending those five, say, from trust A to go and look at trust B. People are telling us very clearly that if people are looking at another trust they want the teams drawn from more than one trust.

Caroline Dinenage

That is definitely allowed, to put the protection in the Bill, but we have not been prescriptive about how that would come together.

William Vineall

The critical thing for us, as Jennifer said, is that before anybody could investigate themselves, they had to prove the capability to investigate other people, and that judgment would be made by the people who are the experts, which is HSSIB itself. So the accreditation process would not be operated by us, but by them.

Caroline Dinenage

We just see this as having the potential—HSSIB itself, with the 30 investigations a year, can make some really great moves forward towards changing patient safety and addressing issues that might be substandard across the whole health service, for all we know. Actually, though, if you really want to change a culture within a trust—if you have got individuals on the ground who have had that experience of those investigations and understand what a difference it can make, who think there can be some real moves forward, a culture change, and embracing patient safety changes in individual trusts.

Chair

Thank you very much. I am bound to say that we have had a lot of evidence suggesting that this idea of accreditation of non-HSSIB organisations to conduct HSSIB-style investigations with HSSIB-style safe space is not very popular. There is great concern that trusts investigating themselves or each other presents conflicts of interest and will undermine the concept that HSSIB is pioneering. I am interested that you should say this is future-proofing the Bill. We are all in favour of trusts and other organisations in the health service being much more capable of doing objective investigations, but that is different from conducting an HSSIB investigation.

Caroline Dinenage

Yes.

Chair

How wedded is the Government to this idea of accreditation?

Caroline Dinenage

The reason we are here is that we are very keen to hear the views of your fantastic Committee, but also all the different experts that you have taken advice from, so we are always open to any kind of suggestions. The reason I say we want to future-proof it is that we recognise that HSSIB is incredibly well qualified at what it does, but will, by the remit that we have given it, do only 30 investigations a year in the initial period. As I have said, there are 24,000 serious incidents a year in the health service and I don’t really want to come back in front of your Committee in a few months’ time and you say to me, “Caroline, how are you spreading this practice more widely across our health service? How are you making sure that there is that HSSIB accredited training out there in our trusts where people actually spread that learning and embed it in their culture?” We are not sure we can really achieve that by having one centrally based organisation. It keeps our options open and enables us to look long term at how we want this culture change to be effective.

Dr Whitford

Is it not a matter of degree in that all hospitals will always be investigating significant adverse events that happen? For that investigation to be of a higher quality than it is now, better learning/sharing would be an advantage. The problem is that the Bill makes it sound like we are only going to pay HSSIB for 30 and therefore we will get trusts to do some to save money, whereas if you are talking about something that is as serious as an HSSIB investigation, surely that cannot be a trust investigating itself. That is where the concern is. We have lots of near misses, minors, moderates.

Chair

To reinforce the point, NHS Providers told us in its written evidence, “The intention behind accrediting trusts, that of developing a learning culture, would be better directed towards investing in the HSSIB’s role in setting standards of investigations and of training and accrediting local investigators to support its own work.” What is your response to that?

Caroline Dinenage

As I say, I am very happy to take on board all the recommendations that you as a Committee and all the experts come back to us with. I suppose, as Dr Whitford says, there are investigations happening in hospitals up and down the country all the time—some on incidents that are more serious than others. We want those investigations to be as robust as possible. If they can benefit from HSSIB training and learning, there is no disadvantage as far as I can see.

Dr Whitford

I do not think the public would think that, but I think the public are afraid that the way it is worded in the Bill is kind of doing your own thing.

Caroline Dinenage

That is certainly not the intention.

Dr Whitford

After the scandals that have happened, and obviously the most recent one, people would be afraid that that could lead to a cover-up of something very serious.

William Vineall

We certainly did not draft the Bill with the intention of giving them the message that because HSSIB is quite a bespoke body doing 30 investigations we would therefore as quickly as possible get the NHS to do a bunch of similar style investigations. That is not the intention of the Bill.

Chair

That is very helpful.

William Vineall

If it has come over like that, it was not our intention. As the Minister said, we think HSSIB is right for all the reasons we have rehearsed. With the right checks and balances, if we think it is right for HSSIB, in the fullness of time it could be right for the trusts as well, but we did not draft the Bill to do one in lieu of the other. If it appears like that, it was not our intention.

Mr Jones

How would it be determined whether a particular investigation should be an HSSIB investigation or an accredited trust investigation? Who will make that determination?

Caroline Dinenage

HSSIB will decide which investigations they want to take on. They are independent and they will decide which ones they want to take on. My understanding is that they will do that based on which they feel have the broadest potential for learning across health.

Mr Jones

So an accredited trust could not do that of its own motion?

Caroline Dinenage

An accredited trust could to it, but HSSIB will—

Mr Jones

Yes, but of its own motion? Would HSSIB make that decision, or could a trust make a decision itself that it wanted to carry out an HSSIB-style investigation?

Caroline Dinenage

Given the number of serious incidents, HSSIB will only ever be able to pick a very small number which they—

Mr Jones

I understand that. I am just wondering who makes the decision about who carries out the investigation.

Caroline Dinenage

HSSIB will decide which ones they want to carry out.

Mr Jones

In every case?

Caroline Dinenage

Yes.

Mr Jones

So a trust could not make that decision of its own motion.

Caroline Dinenage

Individual trusts will only be carrying out investigations where they are specific to their individual area. They do not have the remit to go more broadly.

Mr Jones

I understand that, but it could not make the decision itself. Are you saying that it could not, of its own motion, make a decision to carry out an HSSIB-style investigation?

Caroline Dinenage

Yes, of course it could. An individual trust can do their own investigation, but HSSIB will choose 30 a year that they will—

Mr Jones

I understand that.

Chair

That cross-references with another aspect of this, which is that the existence of HSSIB is not intended to prevent any other body from carrying out its own functions.

Caroline Dinenage

No, not at all. This is in addition, and it is really driven by the culture of learning. Chair, you directed me to a really interesting presentation by James Titcombe on the experience of his son’s death. He said something that really resonated with me when he said that human error is inevitable and we must not normalise the failure to learn. That is at the heart of this.

William Vineall

When new NHS structures have been set up, there is quite a long history of saying they are going to be specialist, so the NHS sends everything of a particular ilk to that organisation. The reason for setting up HSSIB at a particular size was that we said we wanted it to do a specific set of investigations that are complex, systemic and all the other things we have mentioned, and we also wanted to use it as an encouragement for the NHS locally to get better at doing investigations itself, many of which will be for things that are not as complicated as Gosport or the other things, but for which it is none the less important to improve the investigative capability.

Chair

That was certainly our intention in the recommendations we made in the 2015 PASC report. We will think about how that should be reflected in the Bill, because at the moment, we think there is a bit of confusion. Baroness Chisholm, I think we have dealt with the 30—

Baroness Chisholm of Owlpen

Yes, I think we have, more or less, except it is interesting that HSSIB will do only 30 investigations, considering there are 24,000 investigations. A two-tier system could easily happen. What will happen to all of them? No change will ever happen, because 30 is such a minute number.

Caroline Dinenage

It is a small number, but it begs the question, what would be an appropriate number when you have 24,000 serious incidents? It is very difficult to set the goalposts for this, but we chose it based on the number to which we feel we can do justice and from which we can find the most amount of learning that we can use across the board.

William Vineall

We have a one-tier system at the moment, and it does not work absolutely well, because you get a situation where Gosport was not picked up—all right, it was a long time ago—and where you get a Morecambe Bay and a Mid Staffs. Our view was that having a one-tier system where everything was treated the same without the expertise for complex cases was not the right thing to do. The original recommendation, as well as coming from your Committee, was from the Morecambe Bay investigation, and it was that there should be a standing facility in the NHS to pick up the more complicated cases to ensure that we do not get to the position of having five-year-long inquiries or public inquiries or all the other things we saw with Mid Staffs and Gosport.

Chair

But it is also quite obvious that if we allow clinicians and patients to avail themselves of the safe space, a great number of patients and clinicians are likely to do that, and that will increase the demand in terms of the number of investigations that HSSIB conducts. Can I just be clear that, in the longer term, the Government are not ruling out a growing capability that can take on more investigations?

Caroline Dinenage

I don’t think it has been ruled out, but the intention at the moment is for there to be 30.

Diana Johnson

Can I just follow up on that? Is it that the budget was set and out of the budget you think you can do 30, or is it that you came to the conclusion that 30 was the number, and if so, how did you reach 30? What is the logic behind that?

Caroline Dinenage

It does seem a bit of an arbitrary number. I think that it’s impossible to choose; when you are starting off with a figure of 24,000 incidents, it is very difficult to choose a number that would do justice to that, but I think it was within the constraints of what this really professional organisation would be able to look at. They tend to be much more complex cases from which there is wide learning that has massive potential to change the culture across the health service and more broadly than that. Jennifer, I don’t know whether you have anything to add.

Jennifer Benjamin

That is absolutely right. This is a new function; it is a national investigation function. It is set up to look at the most serious incidents. It was right to focus on a small number. We’ve got to have—

Diana Johnson

But why 30? Sorry to interrupt, but I don’t understand why it’s 30. Is it that the budget is leading to 30, because that is what you think you can do with the budget you have?

Jennifer Benjamin

I think it’s thinking about the professional capability of the team that is required and what scope it has to look at a number of investigations—to run high-quality, professional, independent investigations over a year, to produce high-quality investigation reports over a year and to make sure that the learning from that is significant and relevant enough for the system to be able to adopt it and implement it. We think that we have got the balance right at the moment.

William Vineall

A lot of people think 30 is quite a lot in the professional investigation world.

Chair

It is a very interesting strand of discussion, and we will try to address that in our report. Moving back to more detail on the safe space, we will now hear from Dr Whitford and then Mr Jones.

Dr Whitford

There has been discussion about HSSIB having the ability to highlight, to police or to act as a regulator—in essence, simply to start a train of inquiry—but equally there is talk about whether evidence and witness statements should then be shared. In the Bill as drafted, there is actually quite a long list of exceptions to protection when we consider that it was paralleled to air accident investigation. So whereabouts, Minister, do you envisage that it would actually sit?

Caroline Dinenage

I will get Jennifer to talk about this in more detail, but I think there are some really big differences between this and the air accidents investigation branch. They have some really quite sharp teeth: they have the ability to compel witnesses to give evidence; there is no right to remain silent.

Dr Whitford

But do those two not go together, in that if the safe space is airtight, it becomes easier to say, “You need to speak up to us,” whereas if someone is not under caution, if the safe space is quite leaky, you are asking someone, perhaps, to incriminate themselves?

Caroline Dinenage

We felt that we had to get a really careful balance. We were mindful of the fact that we don’t want to drive out honesty and openness; we want to encourage it. We don’t want people to find this is an organisation that they fear; we want people to feel this is an organisation that they can come to, that they can work with. It does have teeth; it has the power to command equipment, documents and information, but it does not have the power to compel people to attend an interview and give evidence. That was a deliberate decision, because we felt that we wanted to very much put the duties on an organisation rather than an individual, because when HSSIB is making its final recommendations, they will be to organisations and not to individuals.

William Vineall

This came up quite a lot—Jennifer might want to add something—in the consultation. What is the right balance in terms of ensuring we introduce a safe space that is something new to the NHS and that allows you to speak up, as people say, and are there exceptions where it will be necessary, at HSSIB’s discretion, to pass over information if it is so important that it is felt that one of the other regulators, the GMC or the police need to see it? It is about drawing a balance, with the predominance being on having a strongly sealed safe space, but with exceptions where necessary.

Dr Whitford

But there are quite a lot of exceptions. Many doctors, whistleblowers and people who have been at the wrong end of this feel that it looks very leaky and not terribly safe at all. If somebody asks at the High Court about an air accident investigation, the High Court will be asked to weigh up the risk of damaging safe space in the future. HSSIB doesn’t exist at the moment, so the police, the GMC and everyone else have to do their own investigations. The concern is that people are saying, “Yeah, yeah, you do it, and then we’ll use your work.” Surely it would be better to make the safe space more airtight, and then compel witnesses, as they do in the airline industry, by saying, “You are protected—you are in a safe space—but you actually have to come here and tell us what happened.” I think it is the worst of both worlds.

Jennifer Benjamin

What we are trying to achieve is something that would be appropriate for the healthcare context and setting. We have had representations about having a safe space that protects that information and allows staff, patients and other witnesses to be open and candid not only about their own practices but about the practices of others in the organisation. There can also be representations from families and patients who believe they should have access to all the relevant information about their treatment and care. That was the balance we were trying to weigh up. The exceptions apply only where there is a significant risk or an ongoing concern about patient safety. It is then for the body to alert the relevant organisations, which then carry out their own investigation. There is no expectation that this body’s investigation report can be used by the police, the GMC or any other regulatory body. That jurisdiction then falls to the appropriate organisations.

Dr Whitford

Is there not a difference between a report and evidence? Witness statements and detailed evidence that has been heard are quite different from a report. Again, that seems to be quite blurred. Of course the report will say, “We need to do x, y and z to make this never happen again,” but that doesn’t mean you are saying, “Doctor B said this, said that and did the other.” Those are quite different things. The report will be used, so surely it will be published and will be in the public domain.

William Vineall

The report absolutely will be published. One of the learnings from AAIB—I am sure Keith can talk better about it than we can afterwards—is that the reports must be of a quality that satisfies everybody and tell the full story of what happened. To go back to your question and others about whistleblowers, any kind of information has to be more or less dragged out of the NHS at the moment. We are saying that, in having a pretty sealed safe space, we will be able to produce reports that get to the bottom of things in the way that the NHS isn’t able to at the moment, and should satisfy the organisations and the individuals concerned. To protect a safe space, we do not think the details of the safe space and the particular conversations and pieces of evidence will be admissible to individuals. That is the balance we have tried to strike so the product you get at the end is a report that is satisfactory and timely and gets to the bottom of things to everybody’s satisfaction. If it does that, safe space has performed its purpose.

Dr Whitford

But would you not then want to use a similar approach—going to the High Court to get evidence, witness statements, etc., released?

William Vineall

Well, you would need to do that.

Dr Whitford

In the draft Bill—sorry, I haven’t got it in front of me at the moment—there is a big, long list of exceptions.

Jennifer Benjamin

There are exceptions for the reason I explained. It is to enable the body to alert the relevant organisations if there is a serious concern about patient safety so they can take action. It is designed to strike a balance. It protects the information the staff hold, but if there is a concern—

Dr Whitford

I don’t think there is any controversy about raising concern. I think that is not at all clear in the draft Bill, and I think it should be about continuing ongoing patient risk or danger. The phrase used somewhere is “patient benefit”, which is much softer than saying, “There’s ongoing clinical risk here that we need to raise with the GMC.” That is still quite different from handing over HSSIB evidence to someone else.

Chair

Can I chip in? Mr Jones is going to come in. At the outset we are keen to create a no-blame culture and this body is about finding the causes of incidents without blame. Then it is required to hand over information to do with professional misconduct. How is that consistent with the main objective?

Caroline Dinenage

I think there is a balance, isn’t there?

Chair

I don’t think there is a balance. I think it is an absolute.

Caroline Dinenage

Do you? Because if everything is driven by—If you think about the situation of HSIB’s first investigation around prosthetic hip replacement. There are a number of failings in that system that allowed that to happen and a lot of learning that could be done. If, at some point in the future, they happened to be investigating something that was as the result of one person, one negligent professional who should not be allowed to continue to practise because people’s lives were at risk, I think there is a difference.

Chair

That is absolutely right; there is no question about that. Where there is a patient safety benefit in releasing information, then obviously HSSIB should report the information.

Caroline Dinenage

Yes.

Chair

But that has got nothing to do with misconduct. It might or might not.

Dr Whitford

I still think there is a difference between information and report. If there is a person or an item, the item can be reported to MHRA, the person can be reported to the GMC. That is still different from saying, “Okay. There are all of our papers that we have gathered.” The problem is that the person was not under caution or represented. They may have indicted themselves. GMC and CQC should be getting on with their own job. It’s just that in and of the moment it still sounds as if the legwork that HSSIB would do could be handed over lock, stock and barrel to another regulator of any kind, whereas surely it should be that you raise a concern, “We have real worries about Doctor X, GMC please investigate.”

Chair

Can I tangentially raise another bit of evidence that we have received, which has not been published, though I hope we will publish it? It is an email from Dr Clare Gerada, who is medical director of the NHS Practitioner Health Programme that looks at, among other things, why clinicians commit suicide. One of the main reasons is the stress of dealing with complaints and having this obligation to disclose things and put themselves through the very invidious process of investigation by a professional body. Isn’t HSSIB an opportunity to relieve some of this stress because they can speak freely?

Caroline Dinenage

Yes.

Chair

How is that helped if that safe space is then compromised by all these exceptions?

Caroline Dinenage

I am happy to take on board the Committee’s comments. We will go away and have a look at that. There is a difference between human error—honest mistakes—and somebody who intentionally sets out to harm somebody. It is very different from an air accident investigation. Sad as it is, 99 times out of 100, when an aeroplane falls out of the sky, the person who was piloting that plane has gone along with the plane. There are instances, we know, where that is not the case but in many cases that happens. Whereas, in this it is very different. We need to ensure that there is the capacity to be able to deal with all the different outcomes, meanwhile holding on to that concept of safe space to protect those who, as you say, are just drawing attention to something that has gone wrong.

Chair

And indeed where the families may wish to have something exposed because it will increase their knowledge of what has happened. I understand that pressure. It is another issue that we are wrestling with.

Dr Whitford

Obviously, the phrase “no blame” is misleading. It is a just culture. There will not be a promise to someone who is involved in an HSSIB investigation that, if they were utterly negligent or worse, they will not be prosecuted, investigated, struck off. It is this issue of whether the legwork of HSSIB, which has been taken inside a safe space, should be used for that. Those other organisations already exist. In air accident, the police have to jolly well go and do their own investigation. Air accident does not hand it over to save them the bother. I think that that is the concern. It still looks as if investigative materials would be handed over to these bodies and therefore, in actual fact, the safe space is not safe.

Mr Jones

Does the Government intend that those who answer questions in the safe space should subsequently be able to disclose what they have told an HSSIB investigator?

Caroline Dinenage

Sorry, could you say that again? I missed the first bit.

Chair

Perhaps it is one for Ms Benjamin.

Jennifer Benjamin

There is nothing to stop an individual who has shared information with the body from then sharing that information with anybody else. The purpose of safe space is to give the witnesses or those who share information with the investigation body the confidence that that information will be protected, but if that individual felt that they needed to raise concerns outside of that remit, I think that is entirely—

Chair

It does not have a gagging effect.

Jennifer Benjamin

No.

Mr Jones

We will be discussing the duty of candour in a minute, but how does this interface with the duty of candour?

Jennifer Benjamin

The statutory duty of candour applies at the moment to organisations. There is an equivalent for professionals in terms of the professional code and conduct. That will still continue. This new body will carry out its investigations. It will carry out those investigations with the protections of safe space. It will publish its reports, and the relevant and full facts of those findings, and the recommendations in learning. The responsibility in terms of the duty of candour will still apply to the trusts and other organisations. They will still have the obligation to be open and provide an explanation and an apology to the patients and the families. We believe that the two operate quite well in parallel.

Mr Jones

If there is material in an HSSIB report that tends to exonerate a clinician, how do you feel the High Court, on an application, should balance the interests of justice? That is, allowing the report to be used in court on the one hand against the potential impact on future HSSIB investigations. Which do you think should have priority in a case such as that?

Jennifer Benjamin

As the Minister explained a moment ago, the purpose of this body is not to investigate individuals, but to try to understand what the systemic risks and issues were which pervaded the organisation and the wider system, and to benefit from that. This body is not in the business of exonerating individuals, or attributing any fault or blame to individuals.

Mr Jones

Forgive me, I did not ask that. The question was about where there was material in an HSSIB report that tended to exonerate a clinician as a by-product, if you like, of a report.

Jennifer Benjamin

The intention is that that level of information about an individual’s practice would not be reflected in the report. That is our policy intention.

William Vineall

Because this is about organisation and learning, not individuals and failure, to put it at its simplest.

Mr Jones

Thank you.

Chair

Has that addressed the duty of candour issue as well?

Dr Whitford

I just have one supplementary question. We have covered a lot of it, but I want to go back to the whistleblowers. There is a suggestion by people who work in the NHS that if they are the ones who raise issues about a trust, they will face reprisals, as we talked about at the start of the session. How do we get away from that?

William Vineall

I suppose the simple answer is that they should not, because every message we are giving out is that we do want people to speak up and we want to facilitate that through things such as having a safe space. Part of what HSSIB has to do is help us to change the culture whereby people do not have to be whistleblowers banging their head against a brick wall, but that there are systems and arrangements that make it easier for them to speak out in a safe way—hopefully early on when the incident is occurring—and that the response of the organisation is constructive, to learn from that, rather than lurching into something that quickly becomes litigious, which I know is quite often what happens with whistleblower issues.

Dr Whitford

Jennifer referred to the patient safety programme in Scotland. There is still a need to have something at the front end. If a whistleblower raises something and there are only 30 investigations, they will not be in a safe space environment unless this is quite an advanced programme. If they are raising an issue early because there is concern, it will not be investigated by HSSIB.

William Vineall

As the Minister said, we have “freedom to speak up” guardians who are trying to shift that culture. We hope it will be easier for people to speak up in a way that it is not at the moment. That is what we want to achieve. We cannot do that alone with HSSIB, but hopefully it is making it that much easier still, because a safe space facility will be available.

Dr Whitford

You are aware that quite a lot of whistleblowers do not feel safe with the guardians and that it makes enough of a difference.

Caroline Dinenage

That will be quite a cultural change. It is quite new and we really need it to bed in and for people to have seen others have a good experience, to give them confidence to enable that fully to live up to its intentions.

Dr Whitford

That will be the key thing, will it not? Seeing people have better outcomes as opposed to the examples in front of clinicians at the moment.

Caroline Dinenage

That is exactly right.

William Vineall

And things that work more swiftly.

Dr Williams

I have a couple of brief questions. Some of our witnesses have suggested that in order to really enshrine the independence of HSSIB, it should be directly accountable to a parliamentary Committee rather than the Secretary of State. What is your response to that?

Jennifer Benjamin

The new body will be set up as non-departmental public body. Therefore, it will be accountable to a parliamentary Committee. That is absolutely right.

William Vineall

But we want it as an independent body so it is a way for many of the existing NHS organisations. There is no question but that it can work independently. Currently, for the purpose of setting it up, it nestles in NHS Improvement. Obviously, there is a compromise inherent in that because it oversees trusts. We want it to be separate in the same way that the CQC is separate and not in anybody’s pocket, and can therefore do things openly and transparently and ask the difficult questions. That is what we want to try to achieve.

Dr Williams

Is the CQC not directly accountable to the Secretary of State rather than to Parliament?

Jennifer Benjamin

All non-departmental bodies are accountable to the Secretary of State. Each Government Department will have a sponsorship function, to have oversight of that non-departmental body. Equally, as for the CQC, Parliament can call it and hold it to account for its business and conduct, which it does on an annual basis.

William Vineall

But critically, in the same that the CQC chooses where it goes to inspect, HSSIB will choose where it does its investigations. That is not dictated by the Government Department.

Dr Williams

You say that, but the Government decided to give HSSIB 1,000 maternity investigations. So before HSSIB has been even set up, we have already seen that. The idea of keeping it independent would be to stop that potential political interference.

William Vineall

I am not sure I would call it political interference.

Caroline Dinenage

I would not call it political interference.

Chair

Order. One at a time. Let us have the panel first, then I will bring in Baroness Chisholm.

Caroline Dinenage

I would call it saying something that has a real chance of improving patient safety and outcomes and wanting it to happen more broadly across healthcare.

Chair

We have heard that that might be all right with this Secretary of State, but who knows who will be Secretary of State at some stage in future?

Caroline Dinenage

That is why, largely, it is independent. It is quite a hands-off role for the Secretary of State, not a day-to-day role.

Baroness Chisholm of Owlpen

Except the Secretary of State seems to have the power to stop an HSSIB investigation. That does not seem to be very independent to me. What sort of investigation would he or she have the power to stop?

Caroline Dinenage

My understanding is that, in practice, that would not happen.

Baroness Chisholm of Owlpen

Why is it in the Bill then?

Jennifer Benjamin

We need to double check, but the Secretary of State does not have the power to stop an investigation. The Secretary of State has the power to revoke the functions of the body in extreme cases—for example, should it not be performing, delivering or complying with the appropriate governance arrangements. The Secretary of State does not have the power to stop the organisation from carrying out an investigation.

William Vineall

There is an equivalent power in CQC legislation. If the body turned out to be rogue, the Secretary of State would have the ability to withdraw the power. It is not the intention of the power that the Secretary of State can use that to intervene on a regular basis.

Caroline Dinenage

Or in an individual investigation.

William Vineall

It is fairly typical for ALBs that you have that, just in case it went very badly wrong. You could revoke it and bring the public money back in and all the rest of it.

Chair

Exactly; if the thing was falling into the sand, you could do something about it. I am old enough to remember the introduction of the rate-capping of local authorities. The power was only to be used in the most exceptional circumstances, rather like income tax during the Napoleonic Wars.

William Vineall

That is not a function of HSSIB.

Caroline Dinenage

No, we will not be issuing any rates.

Chair

What is a little confusing about this is that the Secretary of State early on in this whole process was very keen to be very hands off this organisation, because he felt that patients and clinicians would not have confidence in it if it was not seen to be independent of him or his office. These bits of the Bill are not what we expected.

Baroness Chisholm of Owlpen

There seems to be a power also through the composition of HSSIB’s board. Is that right, through the appointments?

Jennifer Benjamin

Yes, there is, but that is not unusual in terms of setting up a non-departmental public body.

Chair

You see, this is not a normal non-departmental public body. It is more like, say, the Electoral Commission or the National Audit Office. We are wondering whether there are different Government arrangements that would not sideline the Secretary of State, but would give the public more confidence of the direct independent accountability to Parliament, which I think is what he originally wanted.

William Vineall

Certainly, the purpose of the Bill as it is structured is to give HSSIB the full independence in comparison with its current status, which is within the system.

Chair

That is certainly true. We are achieving a lot in that direction. Dr Williams, do you have anything to add here?

Dr Williams

There are some HSSIB investigations that are going to be safe space and some that are going to be non-safe space. Obviously, the Bill will need to be drafted in a way which allows some safe space and some non-safe space. Who is going to make the decision about whether an investigation falls within or outside the safe space provision. Will that be HSSIB’s decision or the Secretary of State’s decision?

William Vineall

The policy assumption at the moment is that all HSSIB investigations are carried out with safe space and the exception to that is maternity.

Dr Williams

There might be another set—it might be paediatric cardiology investigations that HSSIB next gets given or there might be deaths in custody or mental health deaths under the care of mental health trusts. There are a lot of very serious investigations that may be considered to be worthy of HSSIB. Who will make that decision about whether they are safe space or non-safe space?

William Vineall

It is the same answer that I gave before. The policy position on HSSIB is that its investigations should be safe spaced, because that is so integral to its establishment. Maternity is an exception to that for the reasons that I have given, but it is not an exception that is meant to imply that if anything else happened to HSSIB down the line, there would be further exceptions introduced on the safe space principle.

Chair

After the Bill is enacted, how would the extra 1,000 cases have been dealt with under the Act?

William Vineall

They would have to be dealt with in a situation where safe space was exempted for those investigations. It would have to be in a separate category.

Chair

But actually, also, HSSIB would have to want to do that. There is this representation, as we see, from the Secretary of State and others, but HSSIB could have refused to do those, under the Act. Is that acknowledged?

William Vineall

To enable HSSIB to do maternity investigations within the Act, we would have to write it in, and then it would be established that they would do those investigations without safe space.

Chair

What is the point of HSSIB doing investigations if it cannot do them in such a manner that protects its relationship with clinicians and patients by virtue of the safe space?

William Vineall

It should be able to do that but, as I said before, we felt that there were good reasons to do the maternity investigations without the safe space.

Chair

I think we accept the inconsistencies of this prior to the legislation being enacted, but I hope that we will recommend a kind of logic that will satisfy everyone, and a more logical arrangement under the legislation once it is enacted, because it does not sit comfortably at the moment.

William Vineall

Okay. We will take that away.

Andrew Selous

Just a general point about the impact of HSSIB’s reports and changing the culture. Paul Buckley of the GMC reminded us that Governments have been on this trail for quite some time—at least since 2000, and probably before. Could you give us a little more detail on how you believe that HSSIB reports will actually change the culture within the NHS? The tragedy would be if these illuminating and incisive reports lay gathering dust on shelves. Changing the culture in the NHS is not easy to do, as many witnesses have told us. Could you just give us some detail about the mechanics of how the culture will be changed, please?

Caroline Dinenage

HSSIB has the responsibility and the power to make recommendations. It falls to NHSI to make sure that those recommendations are implemented. Also, HSSIB can request a response from the Department, and can request a date by which it wants us to respond to the recommendations and say how we will implement them and when. There is also one person whose name I have forgotten because they are about to change.

William Vineall

Aidan Fowler.

Caroline Dinenage

Aidan Fowler. He will have that overall responsibility and will be answerable to the NHS. What have I forgotten?

William Vineall

Nothing. At the moment, investigations are not timely, so we will make them timely because we have HSSIB. There is not a place for whistleblowers to go that is safe. We will make that clear and we will give them safe space. We will publicise the recommendations and ensure that people act on them—that does not happen now—and we will have CQC include them in inspections in the future. I know that that is quite a lot of bureaucracy to change the culture, but compare it with a situation like Gosport many years ago where none of those things existed. All right—it was a different age then. We are hoping that that will help to move the NHS on. It is explicit. It is a function that exists in law. It is something that will, as the Minister says, gain a profile as it proves its worth. Those things will help to contribute to not having things laying on the shelf and will enable us to deal with things more in real time, rather than having concerns many years afterwards that people’s issues have not been addressed. I agree that it is, on occasions, too late by then.

Dr Whitford

I am just, as usual, banging on about the patient safety programme that we have. As a surgeon, that made a total change to our theatre practice. The problem with this, and obviously to improve it and to share learning, is it is still at the back end when things have gone wrong. What change of culture is there to be at the front? We interviewed a panel and had an orthopod who talked about the huddle, as we have in Scotland, being done in some places but not in others. Is there any plan to try to put patient safety at the front, so that we have fewer than 24,000 investigations?

Caroline Dinenage

I would start by saying that obviously this will be a reactive system, but the whole point of it is to make recommendations that will prevent these sorts of never events from happening. In that light, HSSIB can be seen as something that is proactive—changing a culture and stopping these sorts of things happening in the long run.

Dr Whitford

Will such things as using first-name terms be compulsory? Obviously it was challenging for very senior older surgeons to suddenly be referred to as “Jim” by everybody, but that was national and they had to get on with it. Where HSSIB sees cultural things that are barriers, do you see it being able to enforce its recommendations on the frontline?

Caroline Dinenage

HSSIB’s role is not as an enforcer; it is to recommend improvement. NHSI’s role, in principle, is to carry out the recommendations. Aidan Fowler will be the national director of patient safety from next month. He will be the man with that responsibility.

William Vineall

I have two answers to your question. The human factors element has heavily influenced the establishment of HSSIB. As you were implying, that has not been particularly common in healthcare and is becoming more common now, so we very much wanted to publicise that approach. The other thing you said was about how we can get things right at the start. Obviously, we have the GIRFT programme in England—getting it right first time—which is very much about saying to clinicians, “Look, this is the way of doing things and this is the way we have agreed you should do it.” One of the recommendations that came out of the first report last week was a point of detail about the national joint registry and how they use particular pieces of equipment. Over time, you could see that some of the recommendations that come through a patient safety front could be some of the things that could be established through the systemic professional improvement route of things such as GIRFT.

Chair

You have all been terrific. Thank you very much indeed. Panel 2

Witness

Keith Conradi, Chief Investigator, Healthcare Safety Investigation Branch, gave evidence.

Chair

Could you identify yourself for the record, please?

Keith Conradi

I am Keith Conradi. I am the chief investigator at the Healthcare Safety Investigation Branch.

Chair

Thank you very much for being with us. I have just been given a bunch of very quick extra questions that I will come to at the end, if we have not covered them, about alterations we are threatening to recommend to the legislation. First, how is what HSIB investigates determined?

Keith Conradi

I see us setting the criteria for what we investigate. I see us having a mix, of people being able to refer things to us and us proactively looking as far as we can into the problems that exist, and then making our own decisions against set criteria on what we decide to investigate.