Health Service Safety Investigations Bill [HL]

Lord Hunt of Kings Heath Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the Minister, and I thank her for her introduction to this important Bill. I declare an interest as a member of the board of the GMC, a trustee of the Royal College of Ophthalmologists and president of GS1, which has overseen the Scan4Safety programme in the NHS.

I warmly welcome the Bill. As the Minister said in her introduction, the scale of adverse incidents in the health service makes it imperative that we try to develop a systematic approach to safety. In looking for inspiration, I came across something James Titcombe wrote recently. He conducted a remarkable campaign, following the tragic death of his baby under the auspices of the Morecambe Bay NHS Foundation Trust, and he fought and fought to get answers. He wrote:

“Where healthcare professionals perceive a blame-seeking response to incidents and error, the conditions for learning can never exist. It is paramount that the NHS is able to strike the right balance between ensuring there is accountability where appropriate, and fostering a culture where staff can report and openly discuss error with the confidence that they won’t be blamed unfairly”.


For me, that sets the foundation for the whole concept of the HSSIB. The safe space provisions are so important for the confidence of staff, in ensuring that information they provide will be treated fairly, without them feeling that their employing organisation will come after them because they have disclosed it.

I first became convinced of the need for a systematic approach when the former Chief Medical Officer Liam Donaldson chaired an expert group which produced, in 2000, the report An Organisation with a Memory. This then led to the establishment of the National Patient Safety Agency, and I can tell the Minister that that was actually the first organisation in the world to tread this course. The noble Lord, Lord Patel, was its first chair, and I had the pleasure of following him as chair from 2005 to 2007. Very disappointingly, when the coalition Government came to office—it is good to see the noble Earl, Lord Howe, in his place—we had the predictable bonfire of the quangos, which all Governments seem to go through before they set up their own, and the NPSA was abolished. Disappointingly, and remarkably, the decision was made to place the national reporting and learning system, which is the key mechanism by which people reported incidents, within NHS England, with the NHS Commissioning Board. Clearly, putting it within the compass of the organisation responsible for managing the NHS was the wrong thing to do. We should acknowledge that that has now been seen; hence the Bill today and why I welcome it so much.

There are a number of issues. We have the benefit of the organisation having been in shadow form for some time, so we can see the quality of the reports it has already produced. We have also had pre-legislative scrutiny, which has been very helpful in identifying some of the key issues. As the Minister said, the first issue is: what areas should the Bill cover? At the moment, it covers NHS patients, who can be treated in the private sector, but there is a restriction on private health services where patients are not NHS patients. The noble Baroness says that the Government want to await the Ian Paterson report, and I can see why, but I think it would be perfectly possible to provide in the Bill for the right of the Secretary of State, by order, to extend the provisions to the private sector in the light of the Paterson report. This may well be the only stage of the Bill we will take, and we may have another Bill fairly soon, so there might be time to reflect on that. I think it is very odd that the Bill as it is being brought at the moment does not encompass private healthcare. I think it should.

I am very supportive of the safe space concept, particularly as Clause 2(2) makes it clear that the purpose of the HSSIB is to focus on system issues and not to determine individual blame. It is clear though, from the briefs we have received the last few days, that many organisations do not agree with that. I have had briefs from the ombudsman, from the Association of Personal Injury Lawyers, from the Campaign for Freedom of Information and from the News Media Association on behalf of media outlets. All have sent submissions arguing that the restrictions on access to information held by the board are too strong and ought to be modified. Obviously, we will test this in Committee, but I think there is a clear tension between an approach that looks at systems safety, which tries to learn from errors and mistakes to say how we can put this right by a redesign of equipment or practice, and the absolute right of individuals to pursue cases against the health service and the right of regulators to regulate professionals appropriately.

Clearly, the Bill seeks to get the balance right. Clause 15 enables the Chief Investigator to disclose protected information,

“to address a serious and continuing risk”,

to safety. Clause 17 allows for a person to go to the High Court for an order of disclosure. In my view, that is the right balance: the safe space concept is set out in legislation, but there are circumstances where information can be disclosed. Where I question it, I must say, is in relation to Clause 19, which makes specific provision for a senior coroner to require disclosure. The noble Baroness has given some explanation of that. My understanding is that there are 95 coroners’ areas in England and Wales, employing 87 senior coroners. That seems rather a lot of people to be given special provision. Again, I think that in Committee we need to test whether coroners should be given this special provision. I remain dubious at this stage.

On maternity investigations, the Joint Select Committee was concerned that the board was being given a different remit in relation to these local investigations. The noble Baroness says that the Government need more time to consider what is to be done with those investigations, but I hope that during the passage of this legislation—however long that takes—there will be some kind of conclusion. Given that we are asking the board to do a specific job in relation to system safety, I wonder whether this is the right place for local investigations into maternity services.

The fundamental question of course is: what happens as a result of the work of the board? One of the NPSA’s problems was that it produced lots of reports, but nobody in the system actually took responsibility for implementing them. Here, there is clearly a mechanism whereby the board sends its reports to relevant organisations, and the Bill also makes provision for those organisations to respond to the board. I think that is a very useful suggestion, as is the requirement for a review of the board to be undertaken after four years’ work. I welcome that. However, we have heard it said that the board might produce up to 30 reports a year. Looking at the first two or three—on piped air, oxygen and mental health in emergency departments—the responses from the organisations that received them were very positive. However, in the report on electronic prescribing, the recommendations are extensive. They would be costly in money, human resources and managerial effort. I begin to worry that if over, say, four years it really produced 30 reports a year, which would be 120 overall, the risk is that they would tend to lie on the shelf. It would be a tick-box exercise, and the impact would be far less. I wonder whether the board ought to be less ambitious in the number of reports it produces, in order to get a bigger impact.

However, the fundamental question I put to the Minister is this: whose feet will be held to the fire if the board produces a report and it is clear after two or three years, when new safety incidents have emerged, that the health service has not actually responded? It is not at all clear to me who has responsibility for making sure that these reports have bite. In the airline industry, where this has come from, the experience is that when safety reports such as these are produced, they are acted upon. The big risk here is that, knowing the health service as we do, the number and range of adverse incidents is so wide that in the end the reports will become simply good practice guidance which people can take or leave. In the end, at heart this is the most fundamental question.

I will talk briefly about governance issues. I note that there are non-execs to be appointed, and I strongly urge the Government to make sure that NHS commissioners are appointed as non-execs to the board. We know that a lot of the expertise on this board has come from other sectors, and it is vital that there are people around the top table who understand the NHS. The best way to do this might be to appoint top clinicians to the board as non-executives. Secondly, the provision in Schedule 1 is for the Secretary of State to approve the appointment of the Chief Investigator, which is made by the board itself. I do not understand why the Secretary of State has to give his or her consent. This is not normal in the way that we generally do public bodies; I fully understand that the Secretary of State appoints the non-executives, but it should then be just for the non-executives to appoint the Chief Investigator.

Finally, the Joint Select Committee suggested that, because of the importance of these roles, both the chair and the Chief Investigator ought to be subject to pre-appointment scrutiny by the Health Select Committee. That is an excellent suggestion. Have the Government given this further consideration? When they responded to the Joint Select Committee, they said that they would discuss it with the chair of the Health Select Committee. It would be very good to know the outcome of those discussions.

Overall, this Bill is enormously welcome. I wish the board very good luck in the future, but I also look forward to some of the scrutiny that needs to take place.