Proposal would lead to indiscriminate secrecy about NHS safety investigations

A new legal block on the disclosure of information about NHS safety investigations will fuel public suspicion of cover-ups and protect poor quality inquiries from scrutiny, says the Campaign for Freedom of Information.

The Department of Health has proposed new arrangements for investigating serious hospital safety incidents. The aim is to encourage staff to speak frankly to investigators about mistakes they may have made without fear of being victimised. As a result, only the investigation report could be published. A new legal prohibition on disclosure would prevent the actual evidence obtained by investigators from being released under the Freedom of Information (FOI) Act. A hospital would not be able to release it voluntarily even if it wanted to and Parliament would not be able to obtain it either.

The Campaign says the FOI Act’s exemptions are applied in a way that already protects sensitive witness statements whose disclosure would discourage staff from speaking frankly. It cites a series of Information Commissioner decisions illustrating this.

The Campaign’s director Maurice Frankel said:

“A new legal prohibition on FOI disclosure would apply both to sensitive and non-sensitive information obtained by investigators including details of equipment failures, accident statistics, anonymised accounts of incidents and details of how safety policies are meant to work. Revealing this would not discourage staff from speaking frankly to investigators. Some of the people speaking to investigators may also be happy for their statements to be disclosed. This could include some patients, family members, retired staff or whistleblowers who have already spoken out. The disclosure of all this information would be prohibited under the proposed regime.”

“Where a published investigation report is flawed by poor investigation or self-interest or is excessively delayed or uninformative it would be impossible to look at the underlying information.”

“The prohibition would not just last while an investigation was taking place: it would be permanent and indefinite. If, years after the incident, subsequent events cast doubt on the published account, the original evidence could still not be revealed even if the participants had died or the information showed that those who had been blamed had not been at fault.”

The Department of Health says its proposals are modelled on those applying to the investigation of air safety incidents. But the Campaign says the response of air safety bodies to FOI requests illustrates the indiscriminate secrecy that results:

  • In 2014 the Air Accident Investigation Branch (AAIB) refused to reveal the source of information which led it to state that a particular model of RAF Tornado aircraft would be fitted with a collision warning system. It explained that the disclosure of this information, was prohibited by law. The Campaign says this is likely to have come from the Ministry of Defence or the Royal Air Force and acknowledging this could not have harmed air safety investigations.
  • Also in 2014, the AAIB refused to release satellite data about the Malaysian Airlines Flight which had disappeared en route from Kuala Lumpur to Beijing. One of the reasons cited was the same statutory prohibition on disclosure. When challenged the AAIB acknowledged that it did not hold the information anyway.
  • The Civil Aviation Authority (CAA) has refused to reveal the number of drone incidents occurring at each UK airport in 2015, because of a statutory bar on disclosing information obtained during safety investigations.
  • For the same reason the CAA has also refused to disclose the number of drink related incidents involving passengers reported by staff in 2014 and 2015.

The Campaign says the new proposals would bring the same kind of pointless secrecy to the NHS and is calling on the government not introduce this damaging measure.

The Department of Health proposals are contained in a consultation document ‘Providing a ‘safe space’ in healthcare safety investigations‘ which closed on December 16 2016.

Read the Campaign’s response to the consultation.

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