The Healthcare Safety Investigation Branch (HSIB) – Part 2 – The Secret State?
I previously blogged about my client’s lack of access to various Healthcare Safety Investigation Branch (HSIB) documents and expert reports. This material had formed the basis of a Healthcare Safety Investigation Branch (HSIB) report regarding the birth of my client’s son. The HSIB report had been commissioned following her serious concerns regarding her maternity care.
In response to the HSIB’s refusal to release any documents to her, my client lodged a complaint with the Information Commissioner’s Office (ICO).
The substance of her complaint to the ICO was that the documents that were held by the Healthcare Safety Investigation Branch related to her and her son. It was her personal information and her data. Accordingly, it was argued that the HSIB had a duty under the Data Protection Act 2018 to release all the reports and evidence it held to my client.
It was important to her to see these documents so she could understand the conclusions that the HSIB had reached in their report. The HSIB have a file on her and her son which contains highly personal information. One would have thought that she was entitled to see this material.
The Information Commissioner’s Office disagreed and said that the “data” belongs to the persons at the NHS Trust who were interviewed as part of the HSIB investigation. On that basis, they sided with the HSIB and advised us that there was no duty to provide any further documents to my client. She is apparently not entitled to see any of the expert reports that the HSIB obtained in relation to the birth of her son. She cannot see what the staff have said regarding the birth nor can she see any documents from her file other than the final report.
My client’s Data Protection request was lodged just prior to the enactment of the Health and Care Bill 2022 which was granted Royal Assent on 28th April 2022. Prior to this Act of parliament my client had an arguable case that she was entitled to see the requested documents.
However, the situation is entirely different now that the Health and Care Bill 2022 has come into force. This Act casts a cloak of secrecy over the inner workings of the HSIB. It is asserted that this is necessary to create a ‘safe space’ for NHS staff to be honest in their dealings with the HSIB.
Under Sections 121 and 122 of the Act, the Healthcare Safety Investigation Branch is forbidden by statute to disclose any material to any person outside of the Healthcare Safety Investigation Branch. This prohibition extends to the patients and the parents of the children who are the subject of investigations. It even extends the prohibition to prevent Coroners from seeing any of the internal workings of the HSIB.
My problem with all this is firstly that NHS staff already are under a duty of candour to be honest with regards to mistakes. This added degree of secrecy by the use of ‘safe spaces’ is not required.
Secondly, how can the parents of brain damaged children check whether the HSIB experts have taken into account all the facts if they cannot see the experts’ reports ?
Thirdly, how can the parents be sure that the NHS staff have given an accurate version of events if they are forbidden by law from seeing the NHS staff statements submitted to the HSIB. How do , if at all , do the HSIB resolve such factual disputes.
The balance of power has now swung away from patients to a huge degree whereby we now have a situation in which all of the information and power lies in the hands of the HSIB .
They are protected from disclosure of any of their material to an extent that is unheard of in our modern society. Who will audit the work of the HSIB? Who will ensure the integrity and quality of their appointed experts ? Quis custodiet ipsos custodes?
James Bell is a partner in the medical negligence team. Throughout his career James has dealt with a range of cases concerning all types of claims including birth injuries.
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