Could new proposals for ‘safe spaces’ in healthcare investigations create a learning environment that leads to safety improvements for patients? If so, how does this fit with the duty of candour? 

The Department of Health recently held a consultation on providing “safe spaces” for healthcare workers in healthcare safety investigations. The proposal outlines legal measures to ensure that information that staff provide during investigations will be kept confidential.

This concept of a “safe space” is intended to foster a culture of learning by enabling staff to openly explore mistakes that have been made in the provision of medical care, while feeling confident that the information they give to safety investigations will not be used unfairly. In order to achieve this it is proposed that information obtained during certain health service investigations could only be disclosed with permission of the High Court, or in a limited number of other circumstances where there is an immediate risk to patient safety.

Whilst these new ‘safe spaces’ would provide a forum for open discussion and a good learning environment, there are fears that the measures could be used to unreasonably restrict the information patients and families receive when mistakes have been made. They also risk limiting the ability of patients and families directly affected to play a role in these investigations.

Both the Association of Personal Injury Lawyers (APIL) and Action against Medical Accidents Charity (AvMA) warn that providing a “safe space” will not create an open culture in healthcare investigations. This is because there is an obvious tension between the concept of “safe space” as set out in the proposal and existing principles of openness and transparency including the Duty of Candour, which is the legal duty requiring that patients and families are informed when an incident has resulted in harm. A new law prohibiting the disclosure of specific information obtained during NHS serious incident/patient safety investigations could potentially override the Duty of Candour.

APIL have also expressed concern that an NHS wide roll out of “space spaces” will create barriers to obtaining all necessary evidence to investigate or proceed with a claim in cases where clinical negligence has occurred. This is because the concept of “safe space” would be applied with regard to a broad range of information, such as transcripts, witness statements, notes written by investigators, electronic recording of interviews and incident investigation reports, which would no longer be disclosed at an early stage. It is foreseen that this could lead to increases in the number of claims and in the costs of investigations.

The “safe space” proposal would involve a significant departure from the law as it currently stands in relation to disclosure of information generated as part of NHS incident investigations. This information would not be discloseable under the Freedom of Information Act 2000 or the Data Protection Act 1998, which will directly clash with the Duty of Candour and other principles of transparency. Given the above it is understandable why the “safe space” proposal has attracted considerable attention.

It is hard to see how proposals to hold information secretly can really be expected to promote a long-term culture of openness within healthcare. Although we welcome any attempts by the Department of Health to improve the quality of NHS investigations, and to encourage learning from mistakes, we are concerned that this proposal seeks to do so by sacrificing the principles of openness, transparency and honesty with patients and their families. As clinical negligence solicitors we consider that there are more effective means to encourage healthcare staff to speak openly about mistakes and “near-misses” and to achieve the same improvements in patient safety without jeopardising the duty of candour.