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31 October 2019

Lords Raise Secrecy Concerns Over Healthcare Investigations Proposals

Peers have highlighted News Media Association concerns around proposals to shroud healthcare investigations in secrecy which would neuter news media’s vital work holding  services to account and damage public confidence in the NHS.

In the Second Reading debate, on the Health Service Safety Investigations Bill this week, Lords cited NMA and Campaign for Freedom of Information concerns about proposals for a “safe space” with a statutory ban on the disclosure of information, overriding freedom of information laws.

Under the terms of the Bill, a factfinding and largely recommendations-based report will be made public, but there will be a wider ranging ban, subject to very limited exceptions, on the release of any other information held in connection with the investigation.

The NMA said: “Contrary to the intention of the Bill, this could actually undermine confidence and patient safety, not improve it. The public and other stakeholders will not be able to assess the rigour of the investigation, the propriety of the recommendations, or whether improvements are being made, if they do not have access to the information on which the recommendations are based.”

Maurice Frankel, director, Campaign for Freedom of Information, said: “The FOI Act already protects what participants say to a confidential inquiry into an NHS accident if disclosure would deter people from participating in future or reveal personal data about staff or patients.

“Remarkably, the Government doesn't seem to have realised this. It wants a new blanket prohibition on disclosure backed by the threat of prosecution. The only difference this would make is to keep secret information that couldn’t harm investigations or privacy. This  will do nothing for patient safety but ensure that any shortcomings in the new system could not be exposed.” 

The NMA is also concerned about new powers enabling an investigator to require any person, including journalists, to attend and answer questions, provide information, documents and equipment as part of their investigation into an incident.

Speaking in the debate, Lord Hunt of Kings Heath, Labour, said: “I have had briefs from the ombudsman, from the Association of Personal Injury Lawyers, from the Campaign for Freedom of Information and from the News Media Association on behalf of media outlets. All have sent submissions arguing that the restrictions on access to information held by the board are too strong and ought to be modified.”

Lord Faulks, non-affiliated, said: The justification for the really quite draconian powers is the need for this safe space. They are not popular with lawyers for claimants, the ombudsman, the Professional Standards Authority, the Campaign for Freedom of Information and the News Media Association.

"At the moment, I am not persuaded that the Campaign for Freedom of Information is not right in saying that the Freedom of Information Act, whatever its shortcomings, provides a more balanced mechanism for encouraging candour yet protecting individuals. The NMA is right to point out the absence of any consideration of Article 10 of the ECHR in the HRA memorandum to the Bill."

Baroness Thornton, Labour, said: “It is obviously true that newspapers, in print and online, play a vital role in scrutinising the NHS on behalf of the public, so transparency and freedom of information laws not only help to protect the public but are part of the public confidence in the system.

“There are serious questions which we will have to address in the later stages of the Bill. How will the public and other stakeholders be able to assess the rigour of the investigation, the propriety of the recommendations or whether improvements are being made, if they do not have access to the information on which the recommendations are based?”

Separately, the NMA has condemned proposals by East Lothian Council to charge for requests under the Freedom of Information Act.  The NMA said: "Charging for FOI requests would amount to an attack on the public right to know which would render the workings local government more opaque, damaging democracy at a local level."