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The Paterson case highlighted multiple failures of governance, regulation and patient care at all levels in the NHS and private sector. In this article, Consultant Solicitor Laurence Vick comments on the reaction to the Independent Inquiry report published on 4 February 2020 and the reforms needed in private healthcare if we are to avoid similar scandals in the future. There were crucial lessons for responsibility and accountability of private providers, with obvious implications for outsourcing of treatment by the NHS to the private sector.
So was the report and the recommendations made by the former Bishop of Norwich, the Rt Reverend Graham James, as some have suggested, a missed opportunity to investigate to the fullest extent the many issues of concern and ensure that the necessary changes will be introduced?¹
In their response², Spire’s Chief Executive welcomed the report and said they supported the recommendations and will work with the government and private healthcare sector to ensure they are implemented.
Many commentators believe the conventional contractual model - by which private hospitals and clinics provide what is effectively the package of care but escape legal liability and avoid responsibility if treatment fails - to be flawed. Ultimately, I don’t believe we can be sure of our safety in the private sector until operators are required to have skin in the game. In short, as the Paterson scandal highlighted, they should be accountable for the care patients receive in their hospitals.
The background
Paterson was sentenced to 20 years imprisonment in 2017 on charges of wounding with intent and unlawful wounding. He had been allowed to perform unnecessary and inappropriate breast operations and other surgical procedures for at least 14 years until 2011, at Solihull Hospital (Heart of England NHS Foundation Trust) and in the private sector at Spire’s Solihull Parkway and Little Aston hospitals which had granted him practising privileges. The numbers are substantial; he had carried out 6600 operations at the Spire hospitals and 4400 in the NHS, including ‘unnecessary‘ procedures on children.
The James Review considered a wide range of issues including responsibility for the quality of care and the appraisal and validation of staff working in the private sector, information-sharing between the private sector and the NHS, the role of insurers of private providers and the level of medical indemnity cover doctors working in the independent sector are expected to hold.
The Rt. Reverend James in his hard-hitting report said patients had been “let down over many years” by the NHS and independent providers; there had been a “culture of avoidance and denial” in a “dysfunctional healthcare system that had failed patients at almost every level” and had allowed these operations to take place in “plain sight.” This was yet another scandal in which whistleblowers had been silenced or suppressed, at great cost to the patients whose terrible suffering might have been avoided or significantly reduced had colleagues in the NHS and at the Spire hospitals felt able to raise concerns without fear of retribution.
Spire and other private providers carry out a significant amount of work for the NHS. There have long been concerns over the lack of transparency in the private health sector and the culture of secrecy that seems to prevail when the NHS outsources treatment to what can often turn out to be inadequately vetted private hospitals and clinics and gaps in the supervision and monitoring of those contracts when in progress. Much of the care provided by private providers is of the highest standard, but as they are beyond the reach of a Freedom of Information request and have relied in the past on commercial confidentiality to refuse to disclose information and data how do we assess this and compare outcomes and safety standards in the two sectors? How do we check whether the private hospital has appropriate facilities and resources for the treatment we are to undergo and the ability to cope with complications that can occur with any kind of medical procedure?
These issues need to be addressed, otherwise we will lose the advances of recent years in the consent process before treatment and the duty of candour required if treatment has failed and the patient has suffered harm. Paterson’s NHS and private operations pre-dated the introduction of the duty of candour, but what could patients expect from this obligation on healthcare providers if the treatment had taken place today?
A major concern has been the lack of clarity over responsibility and accountability for failed treatment in the sector. In their response to the report³, the The Centre for Health and the Public Interest (CHPI) thinktank https://chpi.org.uk/ expressed disappointment that it had failed to address what they regard as the flawed private healthcare business model with it’s potential for patient harm. Patient safety charity Action against Medical Accidents (AvMA) welcomed the report⁴ but warned that it did not go far enough to protect patients receiving private treatment. AvMA wished to see a number of checks and balances: regular audits and the same level of supervision of staff as occurs in the NHS, a single robust complaints procedure for patients receiving private treatment with the right to appeal to an ombudsman or equivalent and a funded independent advice service, and a statutory requirement for private health organisations to take responsibility and provide indemnity for patients receiving negligent treatment in their hospitals.
Lack of liaison between the NHS and private sector
The emerging scandal revealed a worrying lack of liaison between the two sectors. Large numbers of both NHS and private Paterson patients had not been contacted and followed up by the Trust or Spire. The report found that the number of patients subjected to unnecessary treatment could run to more than 1000 and no less than 11,000 patients in both sectors are to be recalled and have their treatment assessed. These investigations will involve significant input from medical experts and lawyers for the NHS and together with claims brought by patients found to have been harmed by Paterson will result in enormous expense – expense which could have been avoided had steps been taken to halt Paterson and his dangerous activities. It was also announced that West Midlands Police had referred 23 fatal cases of Paterson patients who had since died of breast cancer to the Coroner in Birmingham.
Although NHS Resolution paid out £17 million to settle the claims of Paterson’s known NHS victims, many obstacles were placed in the way of his private patients in their battle for compensation. Spire maintained in the separate court proceedings brought by his private surgery victims that they had relied on the NHS to vet his competence and warn them of any concerns over his abilities. Prior to the eventual settlement of the court action Spire were reported to have sued the NHS Trust for failing to warn them of his dangerous practices: a tactical move to blur lines of responsibility perhaps but surely a damaging position for a private health care provider to adopt.
Implications for outsourcing by the NHS to the private sector
Of the 211 patients who gave evidence to the Inquiry, 92 were private patients treated at the two Spire hospitals and 5 were NHS patients treated by Spire at those hospitals. Although only a small proportion of Paterson’s private operations were funded by the NHS, the scandal provides a window into the private sector to which the NHS is outsourcing an increasing amount of our treatment, particularly elective procedures.
Current figures indicate that a third of all hip replacements, cataract and other ophthalmic procedures are carried out in the private sector. The NHS is now contracting out a fifth of its total healthcare budget, equivalent to more than £20 billion a year. Spire’s NHS referrals nationally account for a third of its annual revenues. Nearly a quarter of their activity at the Solihull and Little Aston hospitals is funded by the NHS.
I don’t personally believe that we are heading for full-scale privatisation of the NHS. There must be a doubt over the private sector’s appetite for taking over and accepting the operating risk and indemnity cost of running a full-service hospital, maternity unit or A & E department after Circle’s experience of running Hinchingbrooke NHS hospital. Leaving aside the long-term political considerations of this increasing trend to outsource treatment, the result is a blurring of lines of responsibility and accountability which in some places leads to concerns over gaps in safety where the two sectors overlap.
There is no national system for monitoring the care provided to NHS patients treated in the private sector. My concern, on which I’ve written articles published by CHPI and other journals, relates to the safety issues and the fear that private providers are not adequately vetted and NHS contracts are not adequately monitored. Local NHS management may not be in a position to intervene swiftly if problems occur and it can be difficult to establish who within the NHS has overall responsibility at the highest level for the safety of outsourced care. It is reasonable to assume this should be at least as good as that which the patient could expect in the NHS.
Whereas NHS hospitals treat patients of all ages with the full range of medical conditions, illnesses and diseases, private hospitals carrying out outsourced work for the NHS can effectively ‘cherry pick’ the most profitable, usually low- risk, forms of treatment that can be delivered at a predictable cost. This should present no difficulty for surgeons and their teams, but problems can and do occur. There should be few if any complications, so the 50% complication rate – attributed in a subsequent investigation to not one but to a ‘constellation’ of failures – only four days in to the outsourcing contract for cataract procedures carried out by Vanguard Health in 2014 for the Musgrove NHS Trust in Taunton was alarming⁵. One of my clients lost his sight. The investigation also exposed a complex chain of sub-contracting whereby three companies provided various elements of the outsourced service: Vanguard as main contractor, The Practice PLC supplying the surgeons, and Kestrel Ltd the equipment. Unless each organisation in the chain of care providers is checked there is an inevitable risk of patient harm and expense to the NHS (which they never seem to be able to recover).
The “flawed” legal structure
The contract for undertaking private treatment in the private sector (with no element of outsourcing) is between the patient and the consultant or surgeon, with a separate contract between the patient and the hospital for the use of the hospital’s facilities and services. Spire refused to accept responsibility for compensating Paterson’s private patients, relying on the more limited scope of a private hospital’s liability in line with this traditional formulation of the private hospital/surgeon/patient relationship.
Many patients will be drawn to the private provider through on-line advertising. As the first information many patients would see, the report confirmed that Spire’s website had been checked in 2019 and was found to be misleading, giving the impression consultants are employed by Spire and that Spire were therefore responsible for them and their actions. Despite advertising the fact that Spire “employ the best and brightest consultants” the patient terms and conditions stated that consultants were independent contractors and not employees.
Looking at their current on-line advertising, patients are asked to give feedback on the experience Spire has provided. The website states “we’re a trusted healthcare provider delivering outstanding patient care” “Our consultants: find out about our experts and the treatments we provide at a Spire hospital near you” “You can expect outstanding care from our expert consultants and dedicated nurses”, (to GPs) “Your patient will see the same consultant at every appointment”.
This has been exercising the minds of leading lawyers since the scandal broke, particularly those involved in the litigation, but is it such a stretch for a court to find that private providers owe a duty of care to the patient?
Indemnity
His private patients had been unable to recover compensation from Paterson personally and his professional indemnity insurers refused to meet claims on his behalf arguing that there was no requirement to indemnify him by reason of his criminal acts.
The liability position of private hospitals would have been tested and hopefully clarified had the trial listed for hearing in 2017 gone ahead but Spire and their insurers, I believe, bowed to the inevitable and agreed to pay £27.2m into a fund to compensate 750 of Paterson’s private patients, equivalent to an average of £49,600 per patient including the further £10m provided by Paterson’s insurers and the NHS Trust. His NHS patients had already received an average £62,815 per patient. Neither the NHS nor Spire have admitted liability.
Concerns over transparency and governance
After it emerged that Paterson had been allowed to continue operating as a surgeon for such a lengthy period, President of the Royal College of Surgeons, Derek Alderson commented in a BBC Panorama interview on 16 October 2017 that private hospitals are not reporting enough data on patient outcomes⁶: ‘We don’t know exactly what’s going on in the private sector... It cannot be as robust or as safe as the NHS at the moment for the simple reason that you do not have complete reporting of all patients who are treated... It’s not good enough. Things have to change.’ The RCS recommended that private hospitals must be required to participate in clinical audits as a condition of registration by the Care Quality Commission (CQC) and forced to report similar patient safety data including ‘never events,’ unexpected deaths and serious injuries as required of NHS hospitals.
Facilities and safety in the private sector
In their October 2017 report ‘No safety without liability: reforming private hospitals in England after the Ian Paterson scandal’⁷ the CHPI thinktank made a number of key recommendations: private providers should directly employ the surgeons and other consultants who work in their hospitals; private hospitals will not be safe unless they have adequate intensive care facilities to deal with post- operative emergencies, avoiding what can be the hazardous transfer of patients to NHS hospitals. CHPI had previously noted in their 2014 report ‘Privatisation and independent sector provision of NHS healthcare’⁸ that private providers without the necessary facilities rely on the NHS as a safety net – reducing expense for the private hospital but at substantial cost to the NHS.
In the interests of transparency and the need for a valid consent, patients should surely be informed of any shortcomings in the facilities available to a private hospital or clinic so they can make an informed choice between NHS or private care.
The report called on the government to address the safety and governance issues: patients should be “made aware of the risks of private hospital treatment.” The problem is that with a private sector adept at marketing but not noted for its transparency or openness, obtaining meaningful information about those risks, then being in a position to understand and evaluate those risks – risks a patient faces over and above those he would encounter undergoing the same procedure in the NHS – can be extremely difficult.
The report’s recommendation that individual surgeons should publish their record and experience on a website may be too simplistic. The patient needs to be warned of any shortcomings in the hospital’s facilities, or the support available to the surgeon, and how this might impact on any complications he might suffer.
Whistleblowing
It was impossible to believe when the scandal was first reported that there weren’t employees at Spire as well as in the NHS hospital who knew of Paterson’s dangerous practices and who either raised concerns which were suppressed or ignored by senior colleagues and managers or were prevented from doing so or worse, who turned a blind eye to his activities. Stephen Adams in the Daily Mail reported in June 2017 that up to ten doctors who worked with Paterson were being investigated by the GMC and that the Nursing and Midwifery Council said it was investigating ‘a small number of nurses’ linked to Paterson.⁹
The review found that Paterson’s NHS colleagues were “genuinely fearful of the consequences” after concerns had been raised since 2003. Medical staff at Solihull Hospital had been subjected to bullying and aggression after voicing concerns. A key failing was that the NHS Trust had prioritised Paterson’s right to confidentiality as an employee and had dealt with those concerns “under HR processes and not as a patient safety issue,” allowing him to “hide in plain sight” for more than two decades until his suspension in 2011.
After publication of the review, five health professionals were reported to have been referred to the GMC or Nursing and Midwifery Council and one case had been referred to the police. A warning sign, hopefully, that inaction and connivance in the face of a colleague engaging in dangerous practices will be regarded as culpable. We don’t have a full picture of attempts by his colleagues at the private hospitals to raise the alarm.
Continuing concerns over governance
Shortly after the release of the report, Spire announced they had launched an investigation into surgery undertaken at their hospital in Leeds between 2012 and 2018 by shoulder surgeon Michael Walsh, who was suspended and reported to the GMC by Spire in April 2018¹⁰. Lightning had struck twice in the same place for Spire with reports in January 2020 that they had already been forced to launch a review into the care received by 217 patients of orthopaedic consultant Habib Rahman concerning “unnecessary or inappropriate” shoulder operations performed at the Spire Parkway, Solihull hospital where Paterson had operated. Spire said they had restricted Rahman from practising at their hospital in September 2018 and suspended him in January 2019; Spire had asked the Royal College of Surgeons to review his practice and they were liaising with the CQC and the GMC over the RCS’ findings¹¹. Meanwhile Rahman is still employed by his NHS Trust, which says they have not been required to recall any of his patients, but they have subjected him to “interim conditions.”
Spire commented in the press that the financial impact of the Rahman review on their business would be immaterial as any claims would be met by Rahman and his insurers. This reliance on the traditional private health model again demonstrates how it is too easy for the private sector to avoid responsibility. The Investors Chronicle reported on 6 March 2020¹² under the heading “Spire haunted by clinical issues” however that Spire had suffered reputational damage “which could stunt (their) ability to benefit from capacity constraints in the NHS.”
Concerns were also reported in the press over a shoulder procedure carried out at the same Solihull Parkway Hospital by consultant orthopaedic surgeon Amir Salama. A letter in July 2019 from the Spire hospital director to the patient said independent specialists had found “very little clinical or radiological justification” for the operation. A Spire spokesman said: “As part of our robust oversight and governance, we continuously review consultants’ practice and occasionally contact individual patients about their care if there is a concern.” The company said that as “a responsible healthcare business”, there would “inevitably be reviews... In this instance, following a complaint by one patient, we undertook a wider review of this consultant’s practice and have been in contact with one further patient to follow-up their care.” “We can confirm that we have not undertaken a recall involving this consultant’s patients and that we have no reason to do so at this time”
This appears to have been dealt with appropriately by Spire, but this does beg the question: if a private provider is in a position to grant and if necessary withdraw a Consultant’s practising privileges and conduct full reviews into the care a patient has received from that consultant, doesn’t this assume a measure of responsibility for that treatment?¹³
Conclusion
If private providers are able to avoid legal responsibility for the actions of doctors working in their premises, alongside their staff, using their equipment, the risk is they will continue to regard themselves as untouchable and will lack the incentive to monitor the activities going on in their hospitals. As private companies often employ local NHS doctors, surely they should not be able to argue – as appears to have been Spire’s reported intention – that it is the responsibility of the NHS and not the private hospital to vet those doctors. The private sector should be accountable directly to the patient for the treatment carried out in their hospitals. If a private provider has a remedy against the surgeon brought in to carry out the treatment, let them pursue it. Where treatment has been outsourced by the NHS, the NHS should not be out of pocket if patients receive negligent care in a private hospital.
Inquiries in one form or another have proliferated and have become the inevitable and entirely understandable response from the government to the many scandals that have emerged in recent years. Patients and families though, want more than catharsis. As well as the opportunity to tell their stories and be heard, they want to be reassured that issues will be fully investigated, with all relevant individuals and organisations called to give evidence and account for their actions or inactions. Above all, they want to see that positive changes will be made and that lessons really will have been learned to ensure that their experiences and suffering will not be repeated.
References
[2] https://www.spirehealthcare.com/patient-information/spire-statement-paterson-independent-inquiry/
[3] https://chpi.org.uk/news/chpi-director-david-rowland-responds-to-the-paterson-inquiry-report/
[4] https://www.avma.org.uk/news/paterson-report-welcomed/
[5] https://www.theguardian.com/society/2014/oct/16/leaked-report-cataract-surgery-revealed
[6] https://www.bbc.co.uk/news/uk-41628171
[8] https://chpi.org.uk/papers/reports/patient-safety-private-hospitals-known-unknown-risks/
[9] https://www.dailymail.co.uk/news/article-4570124/10-doctors-worked-breast-surgeon-face-probe.html
[10] https://www.theguardian.com/society/2020/feb/16/michael-walsh-private-hospital-spire-ian-paterson
[12] https://www.investorschronicle.co.uk/shares/2020/03/06/spire-haunted-by-clinical-issues/
[13] https://www.verita.net/wp-content/uploads/2018/08/aiho-practising-privileges-principles-2016-1.pdf
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