Ombudsman Excluded from Safe Space
Provisions of the generally welcomed Health and Care Bill create what is described as a “safe space” for investigations to be conducted by the Health Service Safety Investigations Body (HSSIB).
This safe space, designed to encourage NHS staff and other medical professionals to speak freely during the course of an investigation, is comparable to similar legal provisions for bodies which investigate air and marine incidents (where there is currently no other protection).
The focus of HSSIB investigations will be on learning in order to improve patient safety and there will be a prohibition on disclosure to prevent HSSIB and accredited trusts from sharing information held by them in connection with an investigation unless one of the exceptions applies or the High Court makes an order for disclosure.
By implication (as his office is not within the exceptions), it excludes the Parliamentary and Health Service Ombudsman (PHSO) whose office was established by Parliament to provide an independent and impartial service to handle complaints about the NHS in England as well as others.
The PHSO is the final stage for complaints that have not been resolved through organisations’ own complaints processes.
This appears to be a crippling fetter upon the PHSO’s ability to investigate and provide justice for those who have suffered harm when they have been failed by NHS services.
It will lead to situations where HSSIB is in possession of information relevant to a PHSO investigation of which PHSO is entirely unaware, or even frustrate an investigation by PHSO into the HSSIB itself.
Just a few days ago, 16 October 2021, The Venice Commission[1] gave a unanimous opinion that the exclusion of the PHSO from accessing protected information to be held by HSSIB in its safe space is a breach of the Venice Principles on the Protection and Promotion of the Ombudsman Institution[2] and a breach of the United Nations General Assembly Resolution[3] on The role of Ombudsman and mediator institutions in the promotion and protection of human rights, good governance and the rule of law.
The United Kingdom was a co-sponsor of the United Nations Resolution.
That the PHSO is implicitly (rather than explicitly) excluded from the safe space provisions leads the reader to think, at first blush, that this was an oversight. But the Bill has been through its second reading – where neither the Secretary of State nor any other Member of Parliament sought to raise or explain the issue – and is now well into Committee Stage.
Under its existing powers PHSO is legally required to investigate in private and will preserve the integrity of information held in a safe space so why, it must be asked, is Her Majesty’s Coroner to have access to information held in safe space whilst the PHSO is not?
Despite being meant to protect, it will lead only to confusion, disrespect for the administrative system and a sense of injustice for those people bruised by the process.
So why is the Bill in this state at this stage of its parliamentary journey? Why has it been necessary for the Venice Commission to opine on PHSO’s safe space omission? And why have no answers been forthcoming from Her Majesty’s Government?
The PHSO was established in 1967. This, by omission, would be the first restriction on his powers and a breach of international standards that the Ombudsman must have free and unfettered access to all public services.
Lest the possible response by the Secretary of State is that PHSO may always apply to the Court (with all the public expense that would entail), does the government really wish to see our courts have to adjudicate on an unedifying contest between government agencies for information which, on any view, they would each be bound to keep safe and confidential?
[1] European Commission for Democracy Through Law (Venice Commission) Opinion 1044/2021
[2] (2019)
[3] A/RES/75/186 December 2020