The bill introduces a new Health Services Safety Investigations Body (HSSIB) for investigating incidents which happen during the provision of health care services in England and which have implications for patient safety.

However, the Association of Personal Injury Lawyers (APIL) says that though the aim of the proposals is “laudable”, a “wall of secrecy is inevitable if proposals to allow the HSSIB to withhold information are implemented”. APIL says a prohibition on the disclosure of information is in direct contradiction to health professional’s statutory duty of candour.

This duty was introduced to ensure health providers are open and transparent with service users and requires health professionals to explain to patients, for example, what has gone wrong and apologise and remedy the situation.

The concerns

APIL points out in a recent briefing document that an average 1,745 patient safety incidents caused harm every day across the NHS in England, of which 16 a day resulted in severe harm and 12 in death. Under clause 106 of the bill as drafted, HSSIB will be able to withhold certain “protected material” from patients and their families.

Protected material is defined as:

any information, document, equipment or other item which— (a) is held by the HSSIB, or an individual connected with the HSSIB, for the purposes of the HSSIB’s investigation function, (b) relates to a qualifying incident (whether or not investigated by the HSSIB), and (c) has not already been lawfully made available to the public.

Should the HSSIB become a reality, APIL believes patients and families might not get the answers they need and health service might not learn from their mistakes. It also anticipates that non-disclosure could be a barrier to litigation with solicitors unable to secure the necessary information. Solicitors would have the right under the bill to apply to court for a disclosure order for protected material, but this will take time and have obvious costs implications.

It’s not the first time such concerns have been raised. For instance, witnesses who gave evidence to the commons select committee in 2018 expressed concern that information currently available to patients and their families would in future be kept from them, both by accredited trusts and by HSSIB, because of the legal requirement to respect the prohibition on disclosure.

Matthew McGrath of DAC Beachcroft pointed out that if certain material is not disclosable, “it will invariably… create a suspicion among patients that they are not being told the full story”.

For health professionals, they are likely to face tensions between their duty of candour and the prohibition of non-disclosure of protected material.

Dr Jock Mackenzie, medical negligence partner at Anthony Gold Solicitors, also expresses his concerns. He comments: “I agree with APIL that any step that may result in the withholding of potentially critical information from injured patients and their families by NHS Trusts is a potentially detrimental step, as it could undermine the inroads into the problem of the lack of transparency that the duty of candour had sought to make, foster a culture of secrecy and create additional barriers to proper redress; therefore, in my view such a step would be a deeply unwelcome one.”

What does this mean?

The right to withhold such a range of material as defined under the bill appears diametrically opposed to the stated aim of government towards openness and transparency; and the duty of candour as set out in legislation.

There are also potential implications for access to justice for victims of clinical negligence who deserve transparency and disclosure to pursue a compensation claim, as is their legal right.