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My Lords, I too thank Jeremy Hunt for his contribution as Health Secretary and his interest in patient safety, and for driving the Bill to the position it is in now. In the Queen’s Speech debate on Tuesday
“The humble Address refers to new laws to establish an independent body to investigate serious healthcare incidents”.—[Official Report, 22/10/19; col. 539.]
I pointed out that this was at odds with the title of the Bill, which deals solely with health service safety incidents and those carried out in the private sector on NHS patients. It does not apply to those receiving private treatment in the private sector, a point that has already been made by others.
The Joint Committee of MPs and Peers on the draft Bill made it clear that it should be amended to extend the HSSIB’s remit to the provision of all healthcare in England, however funded. It is therefore disappointing that this Bill fails to address the issue with the private sector. I gave the example of the Sellu case, where the evidence of a root-cause analysis of the surgeon’s work was not disclosed at the trial. Today I make reference to another case, that of Ian Paterson, a surgeon who was sentenced to 15 years in prison for undertaking needless breast surgery in the private sector. After his conviction, the Royal College of Surgeons called for a review of safety standards in the private sector. Both cases indicate why the scope of the Bill needs to be widened to include the private sector. The apparent exclusion of private healthcare providers and organisations, save for those that are treating NHS patients and providing service and equipment to the NHS, would appear to limit the potential scope and effectiveness of the HSSIB.
In the Queen’s Speech I declared my interest as chairman of the Confidential Reporting System in Surgery, CORESS, which serves to support surgeons in providing confidential reports of near misses and adverse incidents in surgical practice, with the aim of disseminating the learning from these incidents to inform the surgical community and prevent further occurrences. One of the committee members, Peter Tait, previously director of flight operations for British Aerospace’s commercial section and latterly the CEO of CHIRP, the confidential human factors incident reporting programme, worked closely with the chief inspectors of the Air Accidents Investigation Branch for 20 years. He described the aviation equivalent of the current scope of the HSSIB Bill as restricting the AAIB to investigating air transport operations and their service provision but excluding aircraft, engine and equipment manufacturers, air traffic services and airport providers directly or indirectly involved in the survey safety of the air transport system. It is a whole-system effect that needs to be looked at, not just one area.
I believe that by limiting the Bill to the NHS we are ignoring the lessons learned by the AAIB and others in dealing with rail and marine accidents. The Royal College of Surgeons has similarly expressed concern about the narrowness of the scope of the Bill and believes that the Bill should give the HSSIB the power to investigate non-NHS patient safety issues in the independent sector, as recommended by the Joint Committee. It is not enough to limit the remit of the HSSIB to those who provide NHS services to the private sector.
In its response to the Ian Paterson case that I mentioned earlier, the Royal College of Surgeons published recommendations for assessing standards in the independent sector, including the need for equivalent reporting requirements for independent and NHS hospitals in terms of safety and outcome data. Thus, by extending the remit of the HSSIB to the non-NHS-funded independent sector, errors or potentially dangerous activity identified in the private sector could be addressed, to the benefit of the NHS and non-NHS patients. This is all the more important as the majority of surgeons work both in the NHS and in the private sector. The Joint Committee enforced this point when it asked for the draft Bill to be amended to extend HSSIB’s remit to cover the provision of all healthcare in England, however it is funded. This is likely to require consequential amendments to other parts of the Bill, as well as to the title, and I look forward to introducing these in Committee.
The Royal College of Surgeons is also keen to widen the scope of the Bill to include the regulation of surgical care practitioners in the UK. These practitioners increasingly support routine care of surgical patients under the supervision of senior surgeons and provide continuity of care while surgeons focus on more complex and advanced patient care. The Government believe that surgical care practitioners should be regulated by the Nursing and Midwifery Council. As more surgical care practitioners enter the profession directly, rather than through roles such as nursing, it is appropriate for regulatory oversight to be introduced. Failure to do so may pose an increased risk to patient safety.
The safe space proposals have been modelled on approaches used for many years by the air accident and transport safety investigation bodies, which have contributed to safety in these industries. However, the provision in Part 2(3)(19), on disclosure to coroners, differs from the UK regulation relating to disclosure for the AAIB. The International Civil Aviation Organization sets out regulations relating to disclosure in Annex 19:
“The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations”.
All of this was highly pertinent to the Shoreham air display accident, which noble Lords may recall, as a full statement was given to the Air Accidents Investigation Branch and the judge refused to give the police access to this evidence. It is important that a public interest case should be made by a High Court judge in order to release information, and this approach should be applied similarly to HSSIB.
I am advised that when applications for disclosure have been made in the case of the AAIB, only one successful application for the release of cockpit voice recording data, fitted to a privately owned aircraft, was granted to the estate of the deceased pilot. The High Court judge ruled that the disclosure would not set a precedent for the release of information related to public transport systems and their investigation. Any exceptions to the safe space protection to accommodate coroners will be problematic and the same standards should apply across the board, whether to the AAIB, the Marine Accident Investigation Branch or HSSIB. Otherwise, HSSIB will not hold the same powers or protections and coroners will be able to draw on their access to individual statements to determine how they question witnesses during inquests. Thus, information taken in confidence by HSSIB could be indirectly made public. I am reassured by what my noble friend the Minister said earlier in this respect, but we may need to tease this out in Committee, as the noble Lord, Lord Hunt of Kings Heath, observed.
Safe spaces do not prevent coroners accessing information if they have justification for it and can do so through the High Court. Healthcare staff need to be confident that HSSIB can protect their information in line with the original safe space proposals. Fear of legal, regulatory or managerial sanctions against clinicians is high and recent high-profile court cases such as Sellu and Bawa-Garba do little to reassure the profession. HSSIB must be allowed to enjoy the confidence of the profession, otherwise its work will be seriously compromised.