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Health Service Safety Investigations Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 4:03 pm on 29th October 2019.

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Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers 4:03 pm, 29th October 2019

My Lords, I too thank the Minister for introducing this Bill.

I have always believed that, if you want to know what is wrong in an organisation, the best thing you can do is ask the people who work there. They will also very often know what to do about it. If you want to manage change effectively, your first principle has to be to involve in its design those who are going to implement it. I am also, as a keen gardener, a fan of the old saying that the best fertiliser is the farmer’s boot. In other words, there is no substitute for getting round the farm to see what is growing well and what is being eaten by caterpillars. The same goes for organisations. If managers do not get out of their offices to see how things are working on the ground, they will miss what is going wrong and lose out on valuable opportunities to hear from staff informally. Nowhere is that more important than in an organisation where people’s lives depend on getting things right the first time.

We therefore welcome the Government’s objective of moving towards a learning culture, but in many good NHS organisations this is nothing new. There have been many successes when the principles I have just outlined have been put into operation and staff have embraced change, especially when it was their idea in the first place—or at least they believed it was. Sometimes small management and systems changes can make a big difference to patient safety: for example, the introduction of checklists in surgery has reduced mistakes considerably. These things are not the responsibility of any one member of staff but involve people working together. The Bill deals with thematic or systemic issues rather than individual cases so it has a rather different role from the existing systems for improvement and safety management, but I would like to know how its operation will link with and impact on those existing systems.

Getting to the bottom of problems in the past has often been hindered by staff hesitating to report concerns because of worry about being victimised as a whistleblower —there have been some very bad cases of that—but also because of a lack of confidence that anything will be done. The safe space idea should help with this. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it has to be seen that the recommendations are put into place for that confidence to arrive.

Currently, the duty of candour means that staff must express concerns when they believe there is an unsafe situation. However, the RCN tells us that half of those who do so are not convinced that any action has been taken. As the noble Lord, Lord Hunt, said, it will be a challenge to the new body to ensure that those who give evidence in the new safe space see that effective safety improvements are put in place as a result of their co-operation. It is also important that those who give evidence are not inadvertently put at risk by doing so. That means that the exemptions to disclosing information to other bodies must be narrow, clearly defined and well understood. I think my noble friend Lady Parminter will say something about the Parliamentary and Health Service Ombudsman, which feels that it should be treated the same as coroners. There must also be clearly understood definitions of what serious professional misconduct means.

Therefore, to fulfil the ambitions for the HSSIB, investigations must look at the whole picture, not just at the individuals involved in any incident. They must consider whether the shift at the time of the incident contained an appropriate number of staff for safe working, with the correct skill mix, training and experience for the situation they find themselves in. For example, we know that there are currently 40,000 nursing vacancies, and half of nurses in a recent RCN poll reported that their last shift was understaffed. Brexit has and will make things worse.

The investigations should also consider local and national policy and report on how they impacted the incident, and should be able to make recommendations to the Secretary of State about the need for structural changes indicated by the investigation. That is why it is so important that the organisation is independent. How do the Government plan to ensure that the recruitment of the board is really independent of government and includes lay members as well as medical professionals? Again, I agree with the noble Lord, Lord Hunt of Kings Heath, about the appointment of the chief investigator and the involvement of the Secretary of State.

It is arguable that all patients, however funded, should be able to benefit from the work of the HSSIB. Are there plans to extend its remit, after a period, to all health services, including those provided by independent providers? Indeed, the BMA has already suggested that its remit should be extended to incidents that affect the safety of healthcare workers as well as patients. In Committee there will be discussions about the potential expansion of the remit. Can the Minister clarify the relationship with other bodies with responsibility for quality and safety in health and care such as the CQC and the various regulators? Also, there are already various pathways that staff can take to express concerns, so there needs to be clear guidance as to which path to take in each situation.

Resources for up to 30 investigations per year are being provided. How has this number been arrived at? What if a serious qualifying incident happens just after the annual budget has run out? Will the HSSIB have to publish the number of incidents referred to it alongside the number conducted, to determine whether further resources are needed in the future?

How will decisions on the criteria for investigations be made? The groups consulted should be as wide as possible, including patient groups as well as healthcare professionals and managers. The Secretary of State seems to have a slightly suspiciously large role in an organisation that is supposed to be independent.

As I said, I welcome the safe space approach, but it is important that staff feel supported when they disclose what happened, especially if their view with hindsight is slightly different from what they might have said at the time. The primary objective of learning from mistakes will be achieved only through full disclosure to the investigators, and that will come only from confidence in the system.

We welcome the plan to put the new medical examiners on a statutory footing. It is important that bereaved families are helped to understand what happened and, if there is any doubt about the cause of death, that further investigations are put in place. Of course, we need the right sort of people for this with the right sort of training. It is essential that the service is properly resourced, particularly if it requires input from staff who are already stretched in their ability to provide good-quality and timely care to patients. Will the Minister say something about the staffing model for medical examiners? If they are to examine all deaths apart from those that go to coroners, there will be times of the year when they are very busy indeed, such as the winter months or in a heatwave. This is the same time when all clinicians are very busy, so if the MEs are clinicians employed elsewhere, doing shifts as medical examiners as well as their other job, they may need to be in two places at once at some times of year. How will the staffing model be designed to be resilient in that situation?

In summary, one could hardly be against a plan to develop more of a learning culture in the NHS and enhance patient safety, but there are questions to be answered and reassurances to be given, and I hope that the Minister will be able to do that.