I have recently been instructed by a young couple whose baby suffered a brain injury at birth. Immediately following the incident the hospital concerned notified the event to the Healthcare Safety Investigation Branch (HSIB).
The HSIB were set up in 2017 with the specific purpose to undertake maternity investigations with a view to hopefully improving maternity care and bringing change throughout the NHS. The purpose of having a central body investigating matters was meant to ensure that they are more likely to identify common themes and spot issues arising and they can hopefully influence the NHS systems with a view to reducing the incidence of avoidable brain injuries to babies.
Prior to the introduction of the HSIB, investigations regarding accidents at the time of birth causing a brain injury to a baby were investigated by the local health trust themselves.
This drew criticism from some observers who argued that it was not appropriate for a hospital to investigate its own alleged wrongdoing. Many families and campaigners felt that sometimes the reports were not as independent as they should have been
My own experience was that I thought that on the whole the investigations were thorough and were honest, bearing in mind that all such reports had to of course comply with the Duty of Candour.
In the case I have recently been instructed in the family received a draft HSIB report which referred to interviews having been conducted with members of staff at the relevant NHS Trust and further referred to expert reports having been obtained from the following disciplines; obstetrics, midwifery, neonatology and neuroradiology.
Upon receipt of the report it was apparent that no documents were appended to the report and none of the transcripts of the staff interviews had been disclosed and indeed nor had the independent expert reports.
The HSIB correspondence indicated that the report had been prepared in what was called a ‘safe space’ in order to maximise the likelihood of clinicians being open and honest with the HSIB investigators.
On researching this matter further I looked into whether there was any statutory basis for the alleged ‘safe space’ to which the HSIB documentation referred.
On looking into matters further I discovered there was in fact a draft health service safety investigations bill which had been introduced into the House of Lords in October 2019 and appeared to have gone no further forward. Then there was a further bill called the Health and Care Bill which was introduced into the Commons in July 2021.
On looking through all of the relevant draft legislation I could not find any statutory basis for the alleged ‘safe space’ to which the HSIB referred.
Correspondence was entered into with the HSIB and they were asked to disclose all of the audio / transcripts of the interviews they had conducted with staff members – they claimed that there were no transcripts of these interviews nor indeed were there any witness statements.
They were also asked to disclose all of the expert reports that they had obtained. One would have thought that in the interests of transparency they would be pleased to hand over this material but instead we received a response which alleged that the material that we had requested was the personal data of those who had provided the information to the HSIB.
I do not think this is correct. The witnesses and experts were asked to give information to the HSIB relating to a child who had suffered injury at birth. My interpretation of the Data Protection Act 2018 is that any information relating to that child should be released to the child’s parents as of right as the information relates to their child. The information produced by any expert witnesses or any interviews provided by any staff members is not, in my opinion, under the ownership of the person who has provided that information.
This is important because my clients cannot check the information which is being provided to the HSIB nor can they view the expert reports to judge what is being said regarding the events surrounding the birth of their child.
In the past, before the HSIB came into existence, investigations were conducted by NHS Trusts into their own conduct and such witness statements, audio recordings and independent expert reports that were obtained by the Trust would all be disclosable as of right.
Such information would be almost certainly handed over voluntarily pursuant to a Data Protection Act 2018 request or alternatively a pre action disclosure application could be made pursuant to CPR 31.16.
The correspondence I have received from the HSIB indicates that they will not voluntarily disclose any documentation as they consider this information relates to the witnesses personal data and not to the injured child himself. They also go on to say in their correspondence that they would comply with any Court order for disclosure (presumably such an Order can be obtained by way of an application under CPR 31.17)
It concerns me however that the creation of the HSIB, however worthy that might have been, has in fact degraded the level of access to justice and transparency of the investigations conducted by the NHS.
Imagine two different scenarios both involving brain injured babies – on the one hand the first case is investigated by the NHS Trust itself and they reach conclusions based on witness statements and expert evidence which are of course fully disclosable to the family concerned.
On the other hand in the second case the HSIB conduct an investigation and in that particular case there are numerous hurdles put in the way of the family from obtaining disclose of witness statements, audio transcripts and expert reports.
How is the creation of the HSIB to be seen as in any way a progressive development by the families concerned? If the HSIB investigate a case and the family have less access to information that would be the case than if the investigation is being conducted by the NHS Trust involved in the birth of their child.
To me it seems a very retrograde step to deny information to such vulnerable families. Whilst I appreciate concerns that there might be regarding witnesses not giving full information to the investigating body without the ‘safe space’ legislation being in place one also has to consider the duty of candour and the nurses/midwives/doctors own duties under the GMC/NMC guidelines to be open and honest and to follow the statutory duty of candour. Is the safe space fair to families of children injured at birth ?
I question whether the draft safe space legislation and dogma of the HSIB has gone too far and the balance has now swung away from giving information to families and producing a situation where all of the information and power lies in the hands of the HSIB who could be seen by some as acting as Judge and Jury in cases involving brain injured newborn babies. At the present time the only disclosure that has been provided to my clients are their own interview recordings and they are being denied access to any of the interview transcripts, audio recordings or expert reports that the HSIB have on their files.
To me this seems simply wrong and a backwards step in terms of access to information, access to justice and fundamental fairness.
I anticipate that my clients will wish to challenge the HSIB policy decision either by way of a Court application or alternatively by way of a complaint to the Information Commissioner. In my opinion this is completely unnecessary and I do not believe that my clients should be made to jump through such bureaucratic hoops to obtain information that relates to their son’s brain injury.
I will undertake a further blog in due course updating you all on how matters develop. Within a short period of time however the health and care bill will become an act of parliament and at that stage it will not be possible for disclosure of this material to be made.
Section 106 of the draft Health and Care bill states that ‘the HSSIB, or an individual connected with the HSSIB, must not disclose protected material to any person’. Protected material is defined as ‘any information, document, equipment or any other item which a) is held by the HSSIB or an individual connected with the HSSIB…. b) relates to a qualifying incident……’
And any disclosure of such material to any other party is a criminal offence.
To my mind this is a draconian piece of legislation which will stop families from obtaining witness evidence and independent expert reports at an early stage following the injury that their baby has suffered at birth.
Under the present system, families whose birth events are investigated by their own (possibly at fault) NHS trust have more rights than those families whose injured baby’s case is investigated by the HSIB.
The proposed new act creates an opaque system in which the HSIB has all the power and information and the families have none.
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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