Sharing information

All relevant safety information that the Health Services Safety Investigations Body (HSSIB) obtains is provided in a patient safety investigation report. Our reports do not name individuals or organisations. This is so the focus is on the system issues that affect how care is provided to patients.

Duty of candour

During investigations we check that NHS and healthcare organisations have met their duty of candour responsibility to patients and families who have been harmed during their care.

The duty of candour requires registered providers and registered managers to act in an open and transparent way with people receiving care or treatment from them. The regulation also defines ‘notifiable safety incidents’ and specifies how registered persons must apply the duty of candour if these incidents occur.

Protected disclosure

HSSIB investigations cannot apportion blame, civil or criminal liability, or decide whether any action needs to be taken against an individual by a regulatory body.

To support this, protected disclosure means specific evidence from of our patient safety investigations must not be disclosed and HSSIB reports are not usually admissible evidence in legal proceedings. It is also an offence for any person to knowingly or recklessly disclose protected materials.

We hope that with these protections people will feel confident they can share sensitive information about issues that contributed to patient harm occurring, without the risk of their colleagues, employer, or other agencies responding in a punitive way, or their statements being made public.

It gives staff a greater opportunity to talk about other factors that may not be directly connected to a specific patient safety incident. This allows us to understand and address the systemic issues that impact on patient safety in England.

For example, we have heard from NHS and other healthcare staff about wider system challenges that they may not want to disclose to their employer or other agencies, including:

• Relationships with colleagues and their team culture.
• Frustrations about previously raising concerns that were not listened to.
• Decisions that negatively impact on wider safety culture.

A HSSIB investigation is focused on national, system level issues, and so does not replace any local investigation or other legal process. This means that other investigating organisations may interview the same individuals as the HSSIB investigation and have access to all the same relevant clinical and organisational information (such as patient notes and administrative records) as each organisations own powers may provide.

Exceptions to protected disclosure

There are limited circumstances in which HSSIB may disclose, or may be forced to disclose, protected information.

These are disclosures:

• relating to safety risks
• by order of the High Court
• for purposes of investigations
• relating to prosecution or investigation of offences.

The Health and Care Act 2022 also includes the responsibility on any person not to disclose protected materials that are provided to us as part of our investigations, unless specific exemptions are met.

Disclosures relating to safety risks

The HSSIB may disclose protected material where:

• It reasonably believes that the disclosure of the material is necessary to address a serious and continuing risk to the safety of any patient or to the public.
• The HSSIB believes that the person the disclosure is made to is in a position to address the risk.
• The disclosure is only to the extent necessary to allow the person to take steps to address the risk.

This type of provision may be familiar to clinical staff through their professional regulators. It’s similar to professional obligations when clinicians may be justified in disclosing confidential patient information.

The HSSIB has asked to become a signatory to the Emerging Concerns Protocol. The purpose of the protocol is to provide a clearly defined mechanism for organisations which have a role in the quality and safety of care provision, to share information that may indicate risks to people who use services, their carers, families or professionals. When it is necessary to escalate a serious or continuing risk to national organisations, we can do this quickly and effectively.

Disclosure by order of the High Court

A person may apply to the High Court for an order that the HSSIB must disclose protected material.

The High Court may make an order for the HSSIB to disclose protected materials, but must consider:

• Any adverse impact on current and future HSSIB investigations by deterring persons from providing information for the purposes of investigations.
• Any adverse impact on securing the improvement of the safety of healthcare services provided to patients in England.

The HSSIB can make representations to the High Court to contest the release of any information.

Disclosures for purposes of investigations

The HSSIB can disclose protected materials where disclosure is reasonably necessary to carry out a HSSIB investigation. For example, where we need to share a draft investigation report for comments that contains information gathered during our investigation.

Disclosures relating to prosecution or investigation of offences

The HSSIB can disclose information if it reasonably believes that the disclosure is necessary for the purposes of prosecuting or investigation of an offence under the Health and Care Act 2022. This is where someone may be suspected of unlawfully disclosing HSSIB protected information.