Summary of the interview with Keith Conradi

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In a recent interview, the new head of the body being created to investigate healthcare safety incidents has spoken out about how it will relate to healthcare regulators, and the controversial topic of "safe space".

Keith Conradi has been appointed as the first Chief Investigator of the Healthcare Safety Investigation Branch (HSIB), which was established following the Morecambe Bay scandal. He was previously head of the Air Accident Investigation Branch for 14 years. In his interview with Health Service Journal, he stressed the need for HSIB to have statutory independence from the NHS, and the need for it to have statutory powers to gather evidence and to require Trusts, regulators and the Department of Health to respond to its safety recommendations.

Commencing on the concept of "safe space", he said that it was important that people understood that it did not mean immunity from action when the law was broken, or when significant harm had been caused.

In October 2016, the Department of Health consulted on introducing a statutory requirement that information generated as part of a safety investigation would be kept confidential and would not be shared outside the boundaries of the investigation except in limited circumstances, thereby providing a "safe space" in which those involved in an investigation can speak freely without fear of reprisals. A perceived or actual lack of openness has been identified in various enquiries (Mid Staffs, Morecambe Bay, Winterbourne View) as a factor contributing to ongoing patient harm.  
The consultation proposed that this statutory safe space should apply to investigations carried out by and on behalf of NHS bodies, as well as those done by the HSIB. The limited exceptions proposed, in which disclosure would be allowed, were:

  • When the High Court orders disclosure
  • Where the information discloses and continuing risk to patient safety, or the commission of a criminal offence.

The consultation recognises that healthcare regulators may wish to seek information from safety investigations during fitness to practise proceedings, and proposes that unless the second exception applies, they would have to seek a High Court order. The ramifications of this, in terms of cost and length of proceedings, are potentially significant, as regulators may need to make applications in order to avoid under-prosecution. There may also be impacts on the fairness of proceedings, as registrants who are the subject of fitness to practise action may wish to rely on information that they know was provided to a healthcare safety investigation, but be unable to access it.

Those involved in regulatory proceedings may take some comfort from Mr Conradi's apparent approach. He said "Safe space is a difficult phrase. I would rather it wasn't out there, it gives the wrong idea. We are talking about the protection of sensitive safety information. It is an opportunity for people to provide us with frank, candid information where they know that we will take the relevant parts of that information and use it to help learning."

"There is no immunity. If we find some evidence of wrong doing, an unlawful act or huge significant harm that we see potentially still out there, we will let the appropriate authority know about that."

There is a "but" though – Mr Conradi made clear that the evidence obtained by the HSIB would not be disclosed, and it would still be up to the healthcare regulator to carry out its own investigation. How then, are regulatory decision makers going to be able to assess the consistency of witnesses, which can be a key question when deciding on their credibility and honesty?

Also, Mr Conradi can only control the approach taken by the HSIB. The government proposal goes far wider than that, in extending the statutory protection to all investigations carried out under the NHS's serious incident framework. Mr Conradi expressed strong reservations about this, saying that there is potential for enormous misuse of the statutory protection. He said "I would be uncomfortable with people who haven't really been well trained using this and potentially they may ruin it for [HSIB]" 

So there is much at stake. The results of the consultation are due any day now – click here for an update, and the full consultation paper.