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Lack of HSIB safeguards is an ‘intolerable compromise’

The Healthcare Safety Investigation Branch (HSIB) will fail unless stronger safeguards are established to strengthen its powers and autonomy, the Public Administration and Constitutional Affairs committee (PACAC) has warned.

Following an inquiry, the PACAC said that the HSIB’s independence from the NHS must be enshrined in law, and warned that current arrangements for the HSIB to be part of NHS Improvement instead of the Department of Health mean it will not be independent from the service it is meant to be investigating.

It also said primary legislation is needed to ensure the HSIB provides a ‘safe space’ for whistleblowers, for instance by protecting it from FoI requests.

Bernard Jenkins MP, chair of the PACAC, said: “The secretary of state's decision to set HSIB up as an NHS quango as a permanent response to our recommendations was both disappointing and would be unacceptable, but the prospect of a secure legislative base will enable HSIB emulate the successful air, marine and rail investigation branches.”

He added that allowing the current provisional arrangements for the HSIB to be part of NHS Improvement to become permanent would be “an intolerable compromise” that “would put political dogma against forming new public bodies before patient safety”, and that further legislation is needed to preserve its independence.

The PACAC said that the most likely explanations for why the government had failed to include the HSIB as part of the Department of Health were the government’s opposition to setting up new bodies and the fact that NHS spending, unlike the department, is not officially subject to cuts.

If the government does not commit to bringing forward primary legislation to guarantee HSIB’s autonomy as soon as possible, the PACAC will summon health secretary Jeremy Hunt to explain the delay.

Legal protection for the HSIB’s independence has also been recommended by an expert advisory group.

The PACAC also said that current guarantees of the new HSIB chief investigator’s independence from the government were not sufficient, and that a pre-appointment hearing is needed to ensure confidence in the role.

It expressed concern about the limits to what the HSIB can achieve, given that it will have a limited budget and a remit to investigate only 30 cases every year, and that it must work closely with NHS trusts to build up a network of local investigators.

It further recommended that the HSIB take unambiguous responsibility for setting up a national framework for investigations.

However, it did highlight some positive aspects of the Department of Health’s response to the HSIB, including its adoption of a ‘whole system approach’ and its admission that more must be done to implement the duty of candour.

Last week a CQC consultation raised similar concerns about the independence of another new patient safety role, the National Guardian for whistleblowers.

NHE contacted the Department of Health for a statement, but it did not respond at the time of publication


A Department of Health spokesperson said the department wanted the NHS to be "the safest healthcare system in the world" and insisted that the existing "explicit legal provisions" for the HSIB's independence would be sufficient.

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