Health Service Safety Investigations Bill [HL]

Lord Faulks Excerpts

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

[Lord Faulks (Non-Afl)]

My Lords, on the face of it, who could fail to welcome a Bill that, in the words of Clause 2(2), is designed,

“to identify risks to the safety of patients and to address those risks by facilitating the improvement of systems and practices … of NHS services”?

It can hardly be in dispute that things go wrong in the NHS. This is not surprising, given the number of interactions that take place between doctors, healthcare professionals and individuals. I join other noble Lords in my admiration for those who work in the NHS.

I should declare my interests as a barrister who, for the last 30 years, has acted for the NHS, the Medical Defence Union and claimants in medical negligence claims. The amount that the Government spend on these claims is said to be second only to the cost of decommissioning in the nuclear industry. To be more exact, in the 2018-19 annual report and accounts for the NHS, the cost was put at £2.4 billion. However, the NHS actuaries assessed that the true estimate of harm at current prices is £9 billion, 60% of which relates to maternity claims. As of 1 March 2019, it is estimated that £83 billion will be required for claims, to include those incidents which have taken place but have not yet been reported and those that have. Surely this has to change.

The Joint Committee that carried out pre-legislative scrutiny of the Bill did not suggest that there should be any changes to the claims system. Understandably, it might well have thought that this was beyond its remit. However, while this Bill will not reduce the NHS bill to allow more money to be spent on treating patients, that is not my main concern about it. I ask myself two central questions: first, what will it do; and secondly, are the powers that will be given to the HSSIB really justifiable? The body will investigate “qualifying incidents” and the body itself will decide what they are. I ask the Minister: what will the HSSIB be able to investigate which cannot be investigated at the moment?

It should be remembered that hospitals and trusts carry out their own investigations, which are sometimes called root cause analysis. Incidentally, these are routinely disclosed in litigation, which may give a clue as to how the courts are likely to exercise the balancing powers that exist in relation to the safe space provisions. The CQC has powers of investigation. NHS Resolution has a safeguard and learning department, designed to identify themes emerging from claims and lessons to be learned. There are complaints procedures, including the Parliamentary and Health Service Ombudsman. There are claims at inquests and disciplinary proceedings, and there are major inquiries such as those into Mid Staffordshire hospital, Bristol heart surgery, or HIV and haemophilia. Let us not forget the contribution of the royal colleges, or the considerable amount of published literature which contributes to the corpus of learning. I have not even mentioned all the less formal teaching and learning that goes on in the NHS. There is a duty of candour. As the noble Lord, Lord Hunt of Wirral, mentioned, we have Section 2 of the Compensation Act 2006. Then there is the sort of frankness with which we are familiar, as described by the noble Lord, Lord Turnberg.

Do we really need this additional body? It will take over from its non-statutory predecessor, set up in April 2017. Was that body really considered insufficiently independent? Was its work really hampered by lack of statutory powers? At the moment, I have serious concerns that there may be a serious duplication of investigation. Is it surprising that Keith Conradi, the chief investigator of the HSIB, told the National Health Executive that one of the issues in deciding whether to investigate was:

“Do we really want to waste our resources if there are others already involved in this?”


The problem with this new body is that it will understandably feel it is necessary to investigate in order to justify its existence. Will it find 30 matters per year which satisfy the qualifying criteria? Many problems are one-offs, involving rogue practitioners such as the much-mentioned Ian Paterson. I must declare an interest in that I was originally instructed for the NHS in connection with his claims, but I then became a Minister and had to give up that involvement. Problems may involve particular hospitals which have developed bad practices. There may simply not be that many general themes which need investigation. Of course I entirely agree with others who have suggested that if this body is to exist it must include the private sector as well as the NHS if lessons are to be learned.

Clause 33 requires the Secretary of State to publish a review of the effectiveness of the board. How will this be measured? How good a response will it be for it to say, “Well, we did not find much that met our criteria and we were concerned to avoid duplication”? Such restraint is not characteristic of quangos. Surely the measure of effectiveness might be much better to avoid the dust-gathering that we have heard about. In other words, if there has been a report and there have been recommendations, what is being done about them?

The second issue, which I can deal with much more briefly, refers to the HSSIB’s powers, which will undoubtedly be probed carefully in Committee; a number of cogent points have been made in the debate about them. The justification for the really quite draconian powers is the need for this safe space. They are not popular with lawyers for claimants, the ombudsman, the Professional Standards Authority, the Campaign for Freedom of Information and the News Media Association. I was going to declare an interest as the chair-designate of IPSO, but the noble Lord, Lord Hunt, has already done that for me. It explains my change of location in your Lordships’ House. At the moment, I am not persuaded that the Campaign for Freedom of Information is not right in saying that the Freedom of Information Act, whatever its shortcomings, provides a more balanced mechanism for encouraging candour yet protecting individuals. The NMA is right to point out the absence of any consideration of Article 10 of the ECHR in the HRA memorandum to the Bill.

I am sure that, if the Bill becomes law, the members of the body will perform conscientiously and with the best possible motives. I remain somewhat unconvinced about the analogy with the aircraft industry, although I take the point made by the noble Lord, Lord Ribeiro, about the need to learn from near misses, which was established in that industry. I also think that it is a good idea to learn from other disciplines. I have seen an extraordinary demonstration by a special care baby unit specialist, describing how they had learned how to make themselves more efficient by watching pit stops at Formula 1 races. The co-ordination there was a useful lesson.

Whichever party is in government, the department of health needs to spend some time deciding how it can reduce the huge amount of money spent on claims. Money can be saved to improve patient outcomes, which, after all, is what we should all want. The Bill will result in the creation of an expensive quango. I am afraid it smacks a little of blue-sky ministerial thinking. Despite my reservations, I very much hope that the Minister’s optimism is justified and that this body is not in due course placed on some sort of legislative bonfire.