New Healthcare Safety Investigation Branch – Can going into hospital be as safe as taking a flight?

News | Wed 9th Mar, 2016

Jeremy Hunt, Secretary of State for Health, will today announce the creation of a new independent “Healthcare Safety Investigation Branch” to investigate failings of care in NHS Hospitals and, from April 2018, the introduction of a system for expert medical examiners to independently review and confirm the cause of all hospital deaths.

The Healthcare Safety Investigation Branch has the potential to revolutionise patient safety in the NHS. It will be equipped with a wide range of powers to:

  1. give legal protection to any health worker giving information following a hospital mistake;
  2. create legal ‘safe spaces’ to allow those co-operating with investigations to speak up without fear of suspension or dismissal from NHS posts;
  3. keep any testimony from health workers secret and grant immunity of use of the evidence disciplinary proceedings (subject to conditions);
  4. refuse disclosure of evidence in respect of investigations to civil litigants save where there is a court order for the same.

Airline Industry Model

This model of patient safety investigation has been almost directly copied from the Airline industry. Under the Civil Aviation Authority’s Mandatory Occurrence Reporting Scheme (MORS) all aviation personnel who fall within the scope of the CAA’s regulation are mandated to report any safety-related events which endanger, or could endanger, an aircraft, its occupants or other persons. This is a “no blame” scheme and the purposes of the same are to improve patient safety and not to attribute blame or liability. All Occurrence Reports under the scheme are confidential and release of the same will only be provided by court order.

Separately, the Air Accidents Investigation Branch (separate from the CAA) investigates all aviation accidents or serious incidents which occur in the UK. Investigators have extensive powers to investigate all accidents/incidents and to examine witnesses.

Reports produced by the AAIB are, unlike Occurrence Reports, made publicly available but the purpose of such reports is not to attribute blame or fault. Further, evidence gathered during AAIB investigations (statements taken from witnesses etc…) are not disclosed to third parties other than by way of court order. The specific purpose of this rule is the concern that disclosure may prejudice future accident investigations.

The use of investigators’ reports in Civil Proceedings

Whilst the detail of the government’s proposals has not yet been set out, Jeremy Hunt told the Times (9th March, 2016) that: “What they say cannot be disclosed except by a court order. It cannot be used by the GMC, it cannot be used in a disciplinary proceeding, it can’t be used in legal action unless there’s a court order.”

What is unclear is whether anonymised reports will be published (as per AAIB reports) or whether there will be no form of publication? In any event, it is clear that the intention of the reforms is not to facilitate civil litigants. Indeed, a cynic may perceive the plans as a disguised attempt to reduce Clinical Negligence claims.

Despite the government’s intentions, however, it is highly likely that courts will be inclined to order disclosure of reports and to permit reliance upon the same. 

In the case of Rogers & Anor v Hoyle [2014] EWCA Civ 257, the executors of Mr Rogers’ estate brought a claim in negligence against Mr Hoyle. Mr Rogers tragically died following the crash of a Tiger Moth aircraft, piloted by Mr Hoyle, on the 15th May, 2011. At first instance, Mr Justice Leggatt permitted the Rogers family to rely upon the published AAIB accident report as evidence in the civil proceedings.

The Defendant appealed and both the DOT (Department of Transport) and IATA (International Airline Transport Association) intervened in order to seek to exclude the report. The DOT and IATA argued that permitting the Claimant to rely upon the Report would prejudice aviation safety in other cases. It was argued that people may be deterred from cooperating with the AAIB for fear of being called as witnesses or being sued as Defendants, that the nature of the information offered would be limited and that AAIB investigators would be pressured if they felt their conclusions could be relied upon in court.

These arguments, amongst others, were resoundingly rejected by the Court of Appeal. It was held that denying a trial judge sight of “authoritative, independent, prompt and detailed evidence” would be unjustified and that exclusion of the report would run contrary to the overriding objective. LJ Christopher Clarke went so far as to hold that: “I agree with the judge (Justice Leggatt) when he said that a non-lawyer would be astonished that the report of the AAIB was not something to which a court could even have regard.”

Conclusion

Whilst the detail of Jeremy Hunt’s proposals will have to be considered, any desire to wholly exclude Investigators’ reports from civil proceedings is unlikely to be accepted by the courts. This is particularly true given the proposed introduction of fixed costs and the consequent limits upon Claimants’ abilities to investigate and prosecute proceedings. 

Indeed, LJ Christopher Clarke commented further in Rogers that “AAIB reports have been routinely referred to and used as evidence in English Litigation; their use considerably assists the efficient and speedy resolution of claims; and the majority of potential civil claims arising from civil aviation accidents settle on the basis of AAIB reports… In practice, many litigants who would wish to advance claims in respect of dead or injured passengers would find it either impossible or very difficult to assess the relevant information such as cockpit voice/flight data recordings, and to finance the gathering of the necessary evidence to mount a claim…”

It is possible, therefore, that we may similarly see future Clinical Negligence claims settled on the basis of Healthcare Investigators’ reports. 

Whilst the desire to import the best practices from the Aviation Industry into the delivery of NHS Healthcare is admirable, it should not be used as a means to attempt to undermine patients’ rights to redress following incidents of medical negligence.

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