In April 2017, Ian Paterson, a surgeon in the West Midlands, was convicted of wounding with intent, and imprisoned. The story of a surgeon harming patients in his care was shocking, and at the time of his trial Paterson was described as having ‘breached his patients’ trust and abused his power’. His malpractice took place in both NHS and private facilities.
On 4 February 2021 the independent inquiry into the issues raised by Paterson published its report.
The inquiry, chaired by Bishop Graham Jones, was tasked with reviewing the circumstances surrounding the jailed surgeon’s malpractice. The report’s findings were announced to Parliament by Nadine Dorries along with an apology on behalf of the government and the NHS for what happened, not least that Ian Paterson was able to practice unchecked for so long.
The inquiry made a commitment to involving patients and relatives, and as a result of their concerns about possible collusion with Paterson’s malpractice included a clause in the terms of reference that they would report anyone associated with Paterson who they considered may have committed disciplinary or criminal offences to the relevant authority concerned. As a result the Inquiry referred three individuals to the General Medical Council (GMC), two to the Nursing and Midwifery Council (NMC) and one case to West Midlands Police. The NMC are ‘considering whether there is any regulatory action we need to take’.
Beyond the failings of individuals involved there were many regulatory failures identified in the report. Ms Dorries acknowledged that ‘it is not the first time that regulatory failure has been highlighted in an inquiry report’, and that ‘in the case of Ian Paterson the system did not work for patients’. The inquiry itself does not directly call for new regulatory processes, simply proper implementation of existing processes and for health care professionals to take responsibility for reporting concerns. Ms Dorries has committed to study the recommendations made in detail and provide a full response in a few months’ time.
The Paterson Inquiry – key recommendations
The report is lengthy but worth reading in full. The recommendations are listed at the end of the report but the key recommendations for those who are considering private health care provision are highlighted below. Whilst the issues identified are common knowledge to clinical negligence solicitors they are not well known amongst patients and can cause additional problems if things go wrong, an issue referred to in a previous HJA blog in 2017.
There are differences in how the NHS and the independent sector are organised. In the independent sector, consultants are not usually employed by the private hospitals, and have to make their own arrangements for clinical indemnity. In addition, most private hospitals do not have intensive care units on site. Patients who require intensive care, or have need for emergency treatment, are usually transferred to an NHS hospital. These differences were not apparent to patients who spoke to the Inquiry at the time they chose to be treated privately by Paterson.
We recommend that the differences between how the care of patients in the independent sector is organised and the care of patients in the NHS is organised, is explained clearly to patients who choose to be treated privately, or whose treatment is provided in the independent sector but funded by the NHS. This should include clarification of how consultants are engaged at the private hospital, including the use of practising privileges and indemnity, and the arrangements for emergency provision and intensive care.
Patients we saw who were treated in the NHS were not satisfied with HEFT’s response to their complaints, and did not appear to know about the role of the Parliamentary and Health Service Ombudsman (PHSO). Private patients treated in the independent sector have no recourse to the PHSO and are directed to the Independent Sector Complaints Adjudication Service (ISCAS), if their hospital subscribes to the service. Private patients did not appear to know of this option. If the hospital does not subscribe to ISCAS, the patient will not have access to independent investigation or adjudication of their complaint.
We recommend that information about the means to escalate a complaint to an independent body is communicated more effectively in both the NHS and independent sector. We recommend that all private patients should have the right to mandatory independent resolution of their complaint.
Medical defence organisations cover the costs of claims and damages awarded to patients. However, they are not subject to financial conduct regulation, and the indemnity cover they provide is discretionary. The Medical Defence Union used its discretion to withdraw cover since Paterson’s activity was criminal. This left patients without cover. In the event of the medical defence organisation and the hospital failing to provide cover, some witnesses thought there was a need to provide an industry-wide “safety net” so that patients are not left uncompensated. Other witnesses noted that the current system of indemnity cover for consultants working in the independent sector is unregulated, and told us that it should be regulated.
We recommend that the Government should, as a matter of urgency, reform the current regulation of indemnity products for healthcare professionals, in light of the serious shortcomings identified by the Inquiry, and introduce a nationwide safety net to ensure patients are not disadvantaged.