This article originally appeared in Issue 5 (May 2020).
The report of the Independent Inquiry into the case of surgeon Dr Ian Paterson was published on 4 February 2020. It makes for harrowing reading.
One of the Inquiry’s key aims was to review what went wrong and why at a systemic level, in effect using patients’ experiences of Dr Paterson’s malpractice as a “case study” for wider learning. This was in order to make recommendations in relation to improving safety and quality of care in relation to all patients. Such a task is particularly challenging given the finding of the Inquiry that “there were many regulations and much guidance in place during Paterson’s years of practice. It is significant that a lot of these were disregarded or ignored by Paterson and others. There is no single legislative or regulatory fix which would ensure safety for all patients in the future” [p218].
How then, to ensure that it could not happen again?
Background to the Inquiry
Dr Paterson was trained as a general surgeon but was appointed as a specialist breast surgeon in 1998 at Solihull Hospital, part of the Heart of England NHS Foundation Trust (HEFT). He also practised as a surgeon in the independent sector and treated a large number of private patients at Spire Parkway Hospital. Serious questions were raised about his surgical procedures and practices in 2003; he was suspended by HEFT in 2011 and Spire suspended his right to practise at its hospitals later that year.
In April 2017, he was convicted of 17 counts of wounding with intent and three counts of unlawful wounding relating to nine women and one man, receiving a prison sentence of 20 years.
Many of his patients felt that there were still questions about his malpractice which were unanswered. A non-statutory inquiry was therefore commissioned in December 2017 to investigate Paterson’s malpractice and to make recommendations to improve patient safety.
The terms of reference were broad, allowing for consultation with patients and others to shape the scope of the Inquiry’s work. In total, 211 patients or their relatives gave evidence. Their accounts are set out in detail in chapter three of the report [at pp 11 – 97]. In the words of the Inquiry Chair, Bishop Graham James, they tell “the story of a healthcare system which proved itself dysfunctional at almost every level when it came to keeping patients safe, and where those who were victims of Paterson’s malpractice were let down time and time again” [p1].
Findings of the Report
Chapters four, five, six and seven of the report present the Inquiry’s findings in four key areas: safety and quality of care; responding when things go wrong; working with others to keep patients safe; and governance, accountability and culture. The Inquiry’s recommendations to Government are at chapter eight, and can be summarised as follows:
Information to Patients
1. There should be a single repository of information about consultants across England, which is accessible and understandable to the public, setting out their practising privileges and other performance data including the number of times they have performed a procedure and how recently.
2. It should be standard practice that consultants working both in the NHS and privately write to patients outlining their condition and treatment in simple language, copying in their GP, rather than the other way around.
3. Differences in NHS and private treatment should be clearly explained to patients who are treated privately, and to those who are treated in the private sector but whose care is funded by the NHS. This information should include clarification of practising privileges, indemnity, and arrangements for emergency care.
4. There should be a short period introduced into the process of patients giving consent for surgical procedures to allow them time to reflect on their diagnosis and treatment options. The GMC should monitor this as part of “Good Medical Practice.”
Multidisciplinary Team (MDT)
5. Every patient with breast cancer should have their case discussed at an MDT meeting, in line with up-to-date national guidance.
6. The CQC should, as a matter of urgency, assure itself that all hospital providers are complying effectively with up-to-date national guidance on MDT meetings, including in breast cancer care, and that patients are not at risk of harm due to non-compliance.
7. Information about the means to escalate a complaint to an independent body should be communicated more effectively in both the NHS and independent sector. All private patients should have the right to mandatory independent resolution of their complaint.
Patient Recall and ongoing care
8. The University Hospitals Birmingham NHS Foundation Trust Board should check that all patients of Paterson have been recalled, and to communicate with any who have not been seen. Spire should check all patients of Paterson have been recalled and communicate with any that have not been seen.
Improving Recall procedures
9. A national framework or protocol with guidance should be developed, setting out how recall of patients should be managed and communicated.
10. The Government should, as a matter of urgency, reform the current regulation of indemnity products for healthcare professionals and introduce a nationwide safety net to ensure patients are not disadvantaged.
11. The Government should ensure that the current system of regulation and collaboration of regulators serves patient safety as the top priority, given the ineffectiveness of the system identified by the Inquiry.
Investigating Healthcare Professionals’ practice and behaviour
12. When a hospital investigates behaviour, any perceived risk to patient safety should result in the suspension of that professional. If that professional works at another provider, any concerns about them should be communicated to that provider.
13. The Government must address as a matter of urgency the gap in responsibility and liability.
14. When things go wrong, hospitals should apologise at the earliest stage of the investigation and should not hold back for fear of the consequences in relation to liability.
Adoption of the Inquiry’s Recommendations in the Independent Sector
15. If the Government accepts any of the recommendations concerned, it should make arrangements to ensure that these are to be applicable across the whole of the independent sector, if independent sector providers are to qualify for NHS contracted work.
Many of the recommendations target regulatory structures and call for national frameworks or guidance touching the healthcare sector generally, suggesting that statutory reform may be required if they are to be implemented. Notably, the report highlights the current regulation of indemnity products as a candidate for change, as well as recommending reform of regulation and collaboration of regulators.
Steps have already been taken by the Independent Health Providers Network (through its Medical Practitioners Assurance Framework) to improve consistency of clinical governance across the independent sector, notably by setting out expected practice for healthcare providers and medical practitioners in relation to patient safety, clinical quality, and raising and responding to concerns.
However, the recommendations made by the Inquiry will remain pertinent. The Chair of the Inquiry sadly notes in his opening statement to the report that “thousands of people are still living with the consequences of what happened. It is wishful thinking that this could not happen again”, and the scale of the change which is recommended suggests that there will be incremental reform on a long term basis.
Upon the report’s release, Nadine Dorries commented that the “sensible” recommendations presented a “route-map” for government upon its publication. Unfortunately, there has been delay in the Government providing a formal written response to the proposals, explained by the Department of Health and Social Care on 28 April 2020 to have arisen as a result of “diverted resources” caused by the COVID-19 crisis. Notwithstanding, the report provides a framework for large scale change to healthcare regulation, and its impact will need to be closely monitored as the response to its findings takes shape.