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Preventing harm in healthcare

Ian Paterson, consultant breast surgeon, has been found guilty of seventeen counts of wounding with intent and 3 counts of unlawful wounding. Successful criminal prosecutions against health care professionals are thankfully rare, but patient safety campaigners and advocates are rightly asking “how did things go so wrong?”

The fact is that generally speaking things go right, and the vast majority of patients receive excellent care at the hands of skilled and dedicated surgeons and health care providers. However, when things go wrong the effects are profound in terms of physical and psychological damage to patients, not to mention the financial costs to the cash strapped NHS.

Surgeons and health care professionals have as much interest in preventing rogue surgeons from practicing as patients and taxpayers, and the assumption is that this is another in a long line of cases where lessons are supposedly learned. The recently rebranded National Health Service Litigation Authority (now known as NHS Resolution), the newly launched Health Care Safety Investigation Branch and the Department of Health (DoH) itself are all singing from a familiar songsheet with their renewed focus on patient safety.

Unfortunately the song remains the same without the cultural change required to see a truly robust system for responding to complaints and concerns and rooting out poor practice. The recognised culture of “delay, deny, defend” has no place in the NHS today. When it comes to surgery or any other health care intervention, where the imbalance of power is so great, the stakes are too high to fail.

Although the emphasis has changed, the signs are not encouraging: one of the responses of the DoH to what they perceive as the excessive costs of clinical negligence is to consult on fixing the costs of victim’s solicitors, potentially making it much harder for those who have been injured to find a lawyer to represent them and therefore denying access to justice.

Association of Personal Injury Lawyers’ president Neil Sugarman described this as “like a criminal dictating the length of his sentence” but when properly analysed the proposals go much further than this and, if imposed, will fetter the ability of victims’ lawyers to properly investigate these (usually highly complex, regardless of value) claims at all. Mr Paterson’s victims have been the lucky recipients of skilled legal investigation and advice, the fixed costs regime proposed by the DOH threatens the provision of this vital service.