When things go wrong in healthcare, and when patients are harmed, one of the most urgent priorities is to learn from what has happened, so that similar problems do not harm others in the future. This principle underpins the Government’s establishment of the Healthcare Safety Investigation Branch (HSIB) in England, along with draft legislation that will give HSIB powers to drive learning across the healthcare system. [1,2,3] The creation of HSIB is a watershed moment. HSIB does not attribute blame or liability: its sole purpose is to investigate serious risks to patient safety and issue recommendations for system-wide learning. [4,5] This is modelled on learning-focused investigation bodies that have dramatically improved safety in industries like aviation. [6] A fundamental reason this works so well in other industries is because learning-focused investigations are strictly separated from processes that allocate blame, determine liability, or deliver justice. The intent is that HSIB will do the same: information collected by HSIB will solely be used by HSIB for the purposes of safety improvement, providing a “safe space” for learning.

These “safe space” proposals have generated concern in some quarters, primarily regarding fears that they will prevent patients and families from receiving a full explanation of adverse events, or limit their ability to seek legal redress. [7] However, these concerns appear to fundamentally misunderstand the purpose and benefits of this new “safe space”—and why it must be entirely separate from the “blame space.”

Importantly, nothing will change in the “blame space.” Regulators, prosecutors, and other bodies will retain all their existing powers to gather evidence to determine fault and liability, seek legal remedy, and apply sanctions. NHS organisations will remain bound to their legal duties of candour to provide information to patients and families after adverse events. And HSIB itself will be required to publish thorough investigation reports detailing all relevant information.

What is new is that the raw evidence that HSIB collects in its own investigations—typically interviews with patients, families, clinicians, managers, and regulators—will not be routinely passed on to regulators, the police, or any other body. HSIB will use this evidence solely for the purpose of publishing a comprehensive, learning-focused investigation report. As in other industries, this report will not be used to allocate blame or liability. It will remain the responsibility of other bodies to gather their own evidence for legal, punitive, or regulatory purposes—just as they do now.

Why is this needed? To address the complex human and technical causes of safety issues, they must be honestly acknowledged, openly discussed, and thoroughly explored. It is here that healthcare has a serious problem. Healthcare staff can be fearful of providing safety information in case it is then used against them. Only 45% of NHS staff believe that their organisation treats people fairly after a safety incident. [8] Recent healthcare disasters show how reluctant people can be to share safety-relevant data, hampering learning.[9,10]

Likewise, as the Bawa-Garba case has shown, mixing up learning activities with punitive legal processes further contributes to a fearful and adversarial environment. [11] Similarly, patients and families can sometimes be reluctant to speak up, for fear of jeopardising ongoing or future care, or causing punishment rather than improvement. [1, 12] Other industries long ago learnt that fear is the enemy of learning. A particularly striking “natural experiment” was conducted by the US aviation regulator in the 1970s. The regulator provided a guarantee that safety information provided by pilots on certain types of safety event (“level busts”) would not be used to prosecute those involved. In 1972, this guarantee was removed. Reporting rates and the quantity of information forthcoming from pilots collapsed. [13]

If we want to truly change how our healthcare system learns, we need to create a “safe space” for HSIB’s system-spanning investigations. Rather than restricting the flow of safety information, this will generate more and richer information to support genuine learning. And rather than reducing the ability to hold people to account for past events, it will create new and additional forms of accountability for future learning and improvement.

The draft legislation itself needs amending in many areas. There should be much stronger requirements to participate in HSIB investigations: in other sectors it is an offence not to. And HSIB powers should not be delegated to Trusts: this is inappropriate and would confusingly make HSIB an accreditor of organisations it is also required to investigate. But establishing a “safe space” for learning is critical. Without it, HSIB safety investigators may simply be seen as doing the legal discovery work of the prosecution, or the foot-work of punitive regulatory enforcement. In which case, we should expect healthcare staff to respond in kind—legalistically, defensively, and adversarially. We need to disentangle learning from blaming by creating a new, limited “safe space” in which our healthcare system can learn from the past to improve the safety of all its patients.

Carl Macrae is a Senior Associate at Nottingham University Business School, specialising in how organisations manage risk, investigate incidents and learn from unexpected events. His research helped lead to the establishment of the Healthcare Safety Investigation Branch, where he now currently acts as a researcher-in-residence.

Competing interests: CM acted as Specialist Advisor to the Public Administration Select Committee inquiry into the investigation of clinical incidents in the National Health Service; was a member of the Healthcare Safety Investigation Branch Expert Advisory Group; and holds a part-time post at the Healthcare Safety Investigation Branch acting as a researcher-in-residence.

References:

1. House of Commons Public Administration Select Committee. Investigating Clinical Incidents in the NHS. London: The Stationery Office, 2015. https://publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/886/886.pdf
2. Department of Health. Learning Not Blaming. London: Department of Health, 2015. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/445640/Learning_not_blaming_acc.pdf
3. Joint Committee on the Draft Health Service Safety Investigations Bill. https://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-health-service-safety-investigations-bill/
4. HSIB EAG. Report of the Expert Advisory Group: Healthcare Safety Investigation Branch. London: Department of Health, 2016. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/522785/hsibreport.pdf
5. Healthcare Safety Investigation Branch: https://www.hsib.org.uk
6. Macrae C and Vincent C. Learning from failure: the need for independent safety investigation in healthcare. J R Soc Med 2014; 107(11): 439–443. http://journals.sagepub.com/doi/abs/10.1177/0141076814555939
7. Dyer C. “Safe spaces” for conducting healthcare failure investigations will increase litigation, MPs hear. BMJ 2018;361:k2776. https://www.bmj.com/content/361/bmj.k2776
8. NHS, NHS Staff Survey 2017: Errors, Near-Misses and Incidents. http://www.nhsstaffsurveys.com/Caches/Files/ST17%20-%20errors_sheet5.xls
9. Kirkup B. The Report of the Morecambe Bay Investigation. The Report of the Morecambe Bay Investigation, London, 2015. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/408480/47487_MBI_Accessible_v0.1.pdf
10. Francis R. Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–March 2009. London: The Stationery Office, 2010. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279109/0375_i.pdf
11. Cohen D. Back to blame: the Bawa-Garba case and the patient safety agenda. BMJ  2017; 359 :j5534 https://www.bmj.com/content/359/bmj.j5534
12. Morrish S. The essentiality of safe space. Health Service Journal, 9 July 2018, https://www.hsj.co.uk/the-essentiality-of-safe-space/7022882.article
13. Tamuz M. Learning Disabilities for Regulators: The Perils of Organizational Learning in the Air Transportation Industry. Administration & Society 2001;33(3):276-302.