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Health Service Safety Investigations Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 4:54 pm on 29th October 2019.

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Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 4:54 pm, 29th October 2019

My Lords, I am delighted to follow the noble Lord, Lord Ribeiro, who has covered a large part of my concerns about some of the Bill’s powers relating to coroners. I will return to those. I declare my interests as in the register, particularly as president of the Chartered Society of Physiotherapy, as vice-president of Marie Curie and of Hospice UK, and as a clinician in Wales. I know that Wales is outside the Bill’s remit, but I will come to the cross-border flow issue.

I have a concern, from recognising that the Bill is based on aviation, rail and marine and their investigative processes, as to whether the body will be underresourced in the long term because of the complexity of the NHS. There has been pressure for an open culture of learning. There are death reviews and notification of serious incidents within hospitals, which has been pushed for some time, but unfortunately we do not have the culture of learning that is being called out for loud and clear. The reality works against it. The British Medical Association’s chairman, Chaand Nagpaul, said in the BMJ this week that the NHS now has a culture,

“where blame stifles learning, contributing to the vicious cycle of low morale so staff leave. This unsafe, underfunded environment is as damaging for patients as it is for doctors”.

In an article on fear and medical practice, David Oliver, who is a consultant in geriatrics and acute medicine, describes:

“A continually under-resourced, short staffed system, increasingly unable to meet rising demand”,

that “begins to feel unsafe”. He continues:

“The sheer number of patients … means corner cutting and workarounds. We have to accept, balance, and mitigate risk to patients, even as systems outside hospital are under even more strain. We work on wards facing epic nursing shortfalls, often with inadequate IT or logistics. Even if our … decisions and communication are sound, there’s much else we can’t control”.

I do not want to sound like a whingeing doctor on behalf of medicine, but I am really concerned that, unless that culture of fear and blame is addressed head on, this proposed organisation will not be able to extract much-needed learning.

I am unclear from the Bill what the threshold will be to trigger an investigation, given that the investigations are meant to be thematic rather than going into an individual case. If we are to have a thematic investigation it has to go across boundaries. I echo the concern of several noble Lords about the private sector, where NHS patients might be treated in the private or voluntary sector, such as hospices. If we cannot investigate the whole part of an organisation we would be ring-fencing a patient who goes into that sector and then saying, “All these other problems might have been contributed to on the other side the line, therefore we don’t have the powers to look at it”. If we are to look at thematic change, I do not see how, when we are commissioning services across the nation from non-NHS providers, we can then exclude them from the criteria we are asking for.

My other concern is how recommendations will be audited. How will we know that recommendations made for thematic improvements have been implemented and what are the levers if they are not? It might be that I have missed that, but I do not feel that I am clear on it.

Maternity services have been under HSIB for some time now. There was initially great resistance, but I understand that things have actually been going well and that the trust and confidence of staff and patients have developed so that they feel able to undertake it. In its maternal critical care report, the Royal College of Anaesthetists brought together anaesthetists, obstetricians, midwives, intensive care medicine and the Intensive Care Society. They are very clear that you cannot take maternity services in isolation because they are an integral part of a whole system. They depend on the anaesthetic department being immediately available, on the laboratory infrastructure, on radiology and so on. It cannot be viewed as separate to a whole system. If we are going to have whole system improvement, we must look at it thematically.

In working with others and working across borders, can the Minister tell me whether the memorandum of understanding with Wales has already been written? I have not been able to unearth it. This becomes very important because we have a lot of patients who go from Wales to England for treatment, and a small number who come in the other direction, but for people on the border, thematic changes become very important.

Turning to the safe space concept, this is essential in many ways. In Wales, our revalidation system in medicine is called MARS, spelled like the planet but fortunately not as far away from the realities of this earth. In it, we are asked to describe personal constraints and practice constraints on their practice of medicine. These are visible to the responsible officer in each hospital, who can then analyse them and pick up trends. Everyone was very nervous about this at first, but it provides the beginnings of a safe space, because people are disclosing early warning signals before an incident has happened, rather than once there has been a problem, and they are describing constraints which mean that they are not practising as well as they feel that they should.

However, the concept of a safe space, and access to information in it, must, as the noble Lord, Lord Ribeiro, has so clearly said, be set against a very high bar, with only a High Court judge able to rule that on balance in this exceptional circumstance, such information should be available. Coronial inquests are terrifying for those appearing before the coroner who do not know what is coming, replicating a sense of fear and blame. That has all been worsened by the concepts and accusations of gross negligence manslaughter, for which many of the referrals to the police have come from coroners. That is also aggravated by the fact that there is not a clear definition of what is or is not gross negligence manslaughter. The Williams review asked for it to be clarified. Unless the coroner is undertaking a clean investigation, de novo, and asking questions, if they cannot unknow information that they may have somehow gained from whatever has been in the safe space, they will then be owners of that information, and I fear that what they do with it will completely erode trust in the safe space concept. It sets the safe space up to fail, because those people who have been referred for investigation of gross negligence manslaughter are often so traumatised, having been suspended for one to three years, that they leave medicine, or certainly never practice as thoroughly and as well as they did before.

Therefore, the public interest in having thematic investigations that work well is essential. If I may turn in the last moments to medical examiners, I am glad to see them in place and on a statutory footing. Personally, I wonder whether the Wales system of them being employed through shared services at a national level is going to work better, because they cannot be deemed to have any vested interest in the organisation, the hospital trust or the health board in which they are working. Time will tell. That is going to be one of those interesting experiments where we see what happens across borders with slightly different healthcare systems.

Overall, I welcome this Bill. We have a lot to discuss, and I am glad that it looks as though we will have quite a lot of time to do that in, because we have to get it right.