A number of the recommendations in the Paterson Inquiry report relate to the information being provided to patients to enable them to make an informed choice.  Not only do the recommendations relate to consent to treatment, but also to the extent of information that patients have available to decide upon who provides such treatment.  

All of the recommendations are designed to give patients more information in order to enable them to properly choose who they obtain care and treatment from, and that they do not agree to anything which they do not fully understand the implications of. Private hospital providers and consultants will need to review their performance and data management processes. It will also be important to review patient communication and the ways in which information is provided and ensure that consent processes are detailed, informed and patient-focused.

Cross-sector central register of consultants

The Inquiry found that patients did not understand the nature of hospital/consultant engagement and the level of expertise of the consultants because they may work at numerous locations and for separate providers. 

The Inquiry Report recommends a central register of consultant practices setting out where they hold practising privileges as well as other data such as the number of times a particular procedure has been carried out and how recently. It is recommended that it is mandated for use by managers and healthcare professionals in both the NHS and independent sectors.

Comment:

Having access to objective information will assist patients form a better picture of the consultant options before deciding who/where they wish to be seen. NHS Digital (NHSD) and the Private Healthcare Information Network (PHIN) have already started work on a consultation on the Acute Data Alignment Programme, which will bring together consultants’ performance data across the NHS and independent sectors. A 2-pronged approach is proposed: PHIN would share its national dataset of private patient care with NHS Digital, creating a single source in England, recording activity, quality and risk in a consistent way. In addition, NHSD will pilot direct data collection on privately funded care from independent providers via its secondary uses service of anonymised reports and statistics on patient records. It is anticipated that it will take 3 to 5 years to implement the new data system.

Contact with patients

The Inquiry found that the correspondence sent by consultants after patient consultations was not a patient centric process, and the language used was overly medical and technical which prevented some patients fully understanding the advice.

The Inquiry Report recommended that letters are sent to patients, copied to the referring GP, rather than the other way round.  This should also mean that the language used will be more patient appropriate and clearer.

Comment:

All clinicians are under a duty to ensure that a patient is properly advised of the treatment options, risks and benefits to enable that patient to provide informed consent.  Although consent should be dealt with in a face-to-face discussion, the consultation letter is important. Not only does it ensure that the GP knows about the advice given/treatment proposed, it provides the patient with a reminder of the discussion and an opportunity to reflect and ask questions of the consultant / GP. In addition, the letter provides a written document setting out what has been discussed with the consultant.

The proposal is a common sense approach that not only assists patients but better protects consultants. Rather than requiring any large systematic change of process, it requires more a change of mind-set, which puts true informed consent to any procedure at the forefront. Fewer patients would end up receiving treatment that they did not fully understand the implications of and, if a claim or complaint did follow, the consultant is in a better position to demonstrate that informed consent was obtained. Consultants and hospitals will need to ensure that those preparing the letters are aware of the change as well. 

Engagement of consultants in the independent sector (including treatment funded by the NHS)

The Inquiry found that many patients do not understand the nature of their consultant’s engagement with the independent provider, whether private or NHS funded treatment is being provided and the implications of this if something goes wrong.  The report recommends that clarification is provided as to how consultants are engaged at the private hospital (including the use of practising privileges and their indemnity arrangements) and the arrangements for emergency provision and intensive care.

Comment:

From the outset, patients being treated in the independent sector  need to be given clear information about the status of the consultant and, should concerns arise, who has the responsibility to respond.  Available literature about the employment / contractual position of the surgeon needs to be clear so that patients are aware of the terms of their engagement. Poor expectation management is a key contributing factor to dissatisfaction in patients.  It can be a shock to a patient who may be paying a considerable sum of money for private care, to end up being transferred out of the private hospital with all its comforts and perceived level of care, to the local NHS Trust.  Even when the outcome is positive, patients may feel let down by the independent provider.  If patients are properly informed of where (and why) their treatment will be managed in the event of an adverse event, then, on those rare occasions, patient expectations will be better managed.  Clear and collaborative processes between treating teams are essential so that the patient does not feel like they have been abandoned by the independent sector team. 

Consent and reflection

Some patients who spoke to the Inquiry had felt under pressure to agree to the treatment proposed by the consultant. 

The Inquiry recommended that there should be a mandatory period for surgical procedures to allow the patient time to reflect on the diagnosis and treatment options and that this should become part of the GMC’s Good Medical Practice.

Comment:

It is poor practice for any patient undergoing an elective procedure to be consented for this on the day, in all but the most minor of procedures. Patients should be given a cooling off period to consider the advice that they have been provided with and whether they would like further information, time or a chance to discuss the matter before proceeding to surgery.  Following the Supreme Court decision in Montgomery (2015) it is essential that patients are provided with all treatment options (including conservative treatment or doing nothing) and not just the option that the consultant recommends. Consent should include a discussion about the risks of the procedure, including those risks which are material to the particular patient.  Any discussions need to be properly documented in the patient’s medical records.  Hospital providers and consultants will need to ensure that sufficient time is allowed for patients to consider the options for treatment and reflect on their diagnosis and advice given.

How Capsticks can help

Capsticks are a market-leading leading law firm advising the NHS, insurers and private hospitals on all aspects of healthcare law. For further information please visit our website or contact Majid Hassan, Anna Walsh, Ed Mellor or Ian Cooper.