The Care Quality Commission has raised formal concerns that government plans to abolish the Health Services Safety Investigations Body and transfer its functions to the regulator could place it in an untenable legal position, potentially requiring it to challenge its own findings before the courts.

In written evidence submitted to the House of Commons health and social care committee, the CQC warned of a conflict of interest in protecting what it described as the "safe space" between its proposed investigatory and regulatory arms. The regulator stated that the transfer could bring challenges to its ability to carry out existing functions, and that without legal certainty within the relevant clauses of the Bill, the legislation would place it at significant risk in ways that operational and governance solutions alone may not resolve.

The Health Services Safety Investigations Body came into operation in October 2023 as a fully independent arm's length body of the Department of Health and Social Care. Its mandate is to produce rigorous, non-punitive investigations into patient safety incidents across the NHS in England, with a focus on system-wide learning rather than the apportionment of blame or liability.

The Health Bill proposes to abolish HSSIB and transfer its functions to the CQC, implementing recommendations from the Dash review aimed at simplifying what the government describes as a confusing landscape of arm's length bodies with unclear and often overlapping roles. The government has stated that the Bill aims at strengthening patient safety, and that extending the time limit for the CQC to initiate proceedings from three to five years will give more families the justice they are seeking. Powers currently held by HSSIB investigators, including powers of entry and the ability to demand and secure documentary evidence, would be carried over to the CQC.

The CQC's structural concern arises from one entity simultaneously acting as an enforcer of statutory standards and an investigator using a "safe space" model, where disclosures from healthcare professionals are assuredly not used in regulatory proceedings. This dual role creates a risk: if an enforcement decision is judicially reviewed, the CQC could be bound to protect material gathered under the "safe space" while defending regulatory action. The CQC warns this separation of information introduces reputational risk and inconsistency in applying regulatory powers, as the regulatory function will be unaware of, and unable to act on, information held by the investigation function.

The safe space model, retained under the transfer proposals, prohibits the unauthorised disclosure of protected material obtained during investigations. That prohibition exists for a defined purpose: participants in investigations are meant to speak openly without fear of repercussions, on the basis that such inquiries exist to identify opportunities for learning rather than to establish liability. Placing both functions under the same legal personality risks undermining those assurances in the eyes of those expected to rely on them.

The MP who first proposed establishing the safety investigations watchdog has written to the Health and Social Care Secretary, Wes Streeting, warning that merging the body into the CQC would be fundamentally wrong.

The government's position is that integration will produce clearer accountability and better outcomes. The Dash review recommended, and the government accepted, that investigatory functions should transfer to the CQC to reduce duplication and improve coordination between investigations and oversight. Ministers have argued that regulatory and investigation functions can learn from each other and that patient safety insights will more reliably lead to sustained change across the system.

The CQC is not opposed to reform but argues the current legislation lacks adequate statutory safeguards to separate its investigation and regulatory functions. While acknowledging that housing the investigation function within the regulator could increase compliance with safety recommendations, the CQC maintains this does not resolve the legal exposure created by insufficient separation. It believes a Memorandum of Understanding is insufficient, and explicit primary legislation defining the boundaries is essential for the merged body to function without compromising either role.

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