But is one of the major planks of that policy compatible with the just disposal of claims by injured patients?
It has long been considered, by many, that the fear of litigation obstructs such investigations. Healthcare professionals who would otherwise be candid, are intimidated by the prospect of their disclosures being later thrown back at them in the courtroom court. Thus the government has announced, in the briefing notes to the Queen's Speech, June 2017:
DRAFT PATIENT SAFETY BILL
The purpose of the Bill is to:
• Improve how the NHS investigates and learns from mistakes by establishing an independent Health Service Safety Investigation Body.
• Encourage staff and other participants to share information freely with the Health Service Safety Investigation Body by prohibiting the disclosure of information held in connection with its safety investigations, creating a ‘safe space’ for staff.
.... This prohibition will not apply where there is an ongoing risk to the safety of patients or evidence of criminal activity, in which case the HSSIB can inform the relevant regulator or the police.
A significant difficulty for policy-makers is that of balancing the advantages of a "safe space" for staff with the need to afford justice to those who have suffered from unsafe practice. How does this proposal sit with the recently introduced, hard fought for "duty of candour"? Would a public body really be willing to suppress evidence of wrong-doing and defend a clinical negligence claim knowing that such evidence existed but was protected by "safe space" legislation?
A " safe space" is presumably one from which patients or their relatives who have suffered as a result of a "patient risk" incident are kept out. Is an investigation truly independent and thorough if those able to give relevant evidence and insight are not made aware of what others are saying, and cannot respond?
This is a difficult balancing act: what one person may perceive as a safe space, another might see as a cover up. The trick to pull off is to encourage candour and learning so that institutions can improve patient safety, whilst protecting justice for all those involved.
A Wasted ResourceOne wasted learning resource, which I have discussed with a medico-legal expert recently, is that contained in expert reports prepared for litigation. Over the years I have heard many eminent healthcare experts criticising the conduct of their peers or systems of work, knowing that their reports may never be seen by the practitioners involved or their managers and employers. So much potential learning is wasted. A case settles and those reports are archived and eventually shredded.
Perhaps the policy-makers can find a way of pulling that evidence into a safe space so that it can used for the common good.