The Paterson Inquiry, commissioned by the government to look into the criminal malpractice of Ian Paterson reviewed how he had been able to practise in this way across both the NHS and private sector and with a view to identifying systemic improvements to ensure that patients are properly protected and compensated.

At our webinar on 17 March, we hosted a panel of key figures from across the healthcare sector, to discuss the recommendations from the Report of the Independent Inquiry into the Issues raised by Paterson (published in February 2020) and the response of the healthcare system to those recommendations one year on. In case you missed it, we consider the progress made to date, below.

What were the shortfalls identified?

The report identified shortcomings in both the NHS and independent hospitals’ response and in medical indemnity arrangements that:

• the hospitals didn’t look closely at the procedures Paterson was performing to assure themselves that he was fit to practise them; 
• the appraisal system failed to pick up concerns about Paterson and there was also a failure between NHS and private hospitals to adequately communicate in respect of the appraisal process; 
• revalidation, often a paper exercise, shouldn’t be relied upon as evidence of a practitioner’s competence because poor quality of care is not easily identifiable through revalidation; 
• there was a lack of monitoring by private hospitals. In particular, it was noted that even after a Hospital Director had told Paterson to stop carrying out procedures, he continued to do so, including operations he did not perform in his NHS practice; 
• there was under-usage of MDTs by way of checks and balances on potential malpractice; 
• there was a lack of accountability on the part of the Private Hospital in view of Paterson not being an employee and, instead, holding practising privileges; 
• there were gaps in medical indemnity and there is no safety net for private patients in the independent sector where indemnity cover for doctors is discretionary.

What were the recommendations from the report?

The formal recommendations were set out on page 218 of the report here and we set out the recommendations from the report regarding safety and learning in our insight in February 2020. They identified common themes around the need for hospital providers to review their policies and processes in terms of MDTs, complaints and patient recall.  

The Report also identified some of the existing initiatives available to support providers including:

• Getting It Right First Time (“GIRFT”), an NHS initiative to reduce unwarranted variations between hospitals, is now expanding into the independent sector;
• Adopting the WHO surgical safety checklist, intended to decrease errors and adverse events, and to increase teamwork and communication in surgery;
• The Medical Practitioners Assurance Framework (“MPAF”) developed by the IHPN to introduce consistent standards for clinical governance within the independent sector;
• Providing clear routes for concerns about practitioners to be identified, including the promotion of Freedom to Speak Up guardians and a whistleblowing hotline;
• Formal recommendations were made for the government to recognise the ‘gap’ in legal liability for consultants who operate by way of practising privileges and to introduce a single database of consultants setting out their practising privileges and critical performance data which is mandatory and publicly accessible.

One year on – what has changed?

Whilst we are still waiting for the government’s response with respect to the gap in medical indemnity and to legislate for the introduction of a mandatory and publically accessible database of critical performance data, there have been some key developments taking us a step in the right direction.  

The introduction of the Responsible Officer has led to improved information-sharing, there has been increased adoption of the MPAF and Freedom to Speak Up Guardians across private provider organisations and also the introduction of the Acute Data Alignment Programme (“ADAPt”), a joint programme between NHS Digital and the Private Healthcare Information Network which is looking to adopt common standards for data collections and performance measures across both the NHS and private healthcare.

The Government’s response

The government has now partially responded, by way of a statement issued on 23 March 2021, in respect of four of the recommendations made within Parliament's report:

• Recommendation 2 (information to patients): Academy of Medical Royal Colleges (AoMRC) guidance to be incorporated into the NHS standard contract;
• Recommendation 4 (consent): GMC to work with providers to embed revised good practice guidance on consent;
• Recommendation 5 (MDTs): CQC to ensure existing questions about MDT in appropriate CQC frameworks become mandatory elements of its assessment and inspection approaches;  
• Recommendation 7 and 8 (patient recall and ongoing care): The response confirmed the efforts made to date to contact patients and review their continuing care.

As well as confirming that it will respond in full to the inquiry during 2021, the government has also announced three legislative actions to ensure closer scrutiny of the independent sector:

• In June 2020 the government amended the then-Medicines and Medical Devices Bill to create the power to establish a UK-wide medical device information system to allow the government to routinely collect medical device, procedure and outcome data across both NHS and independent providers;
• A Patient Safety Commissioner (PSC) is being established for England with responsibility for championing patient safety, including the power to make reports or recommendation and to request and share information;  
• The government White Paper, published in February 2021, setting out legislative proposals for the Health and Care Bill including extension of the remit of the Health Service Safety Investigation branch to private providers.

Summary  

At our event the Panel reflected on the success of some of the initiatives mentioned above in addressing the concerns identified by the Inquiry, but also recognised that key to learning from Paterson is the need for increased governance from ‘Ward to Board’ and addressing organisational culture to encourage open discussion of concerns and ensure accountability.

Provider organisations and their Responsible Officers are responsible for ensuring appropriate clinical governance safeguards are in place, that they communicate clearly with patients about who is responsible for their care and that they share information of concern with other interested parties where it is appropriate to do so. However there remain difficult issues to grapple with in terms of medical indemnity for both individual practitioners and organisational providers, the extent to which data can be lawfully shared when concerns about practitioners arise, and whether practising privileges or direct employment better meet the needs of patients and organisations.

How Capsticks can help

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings.  

If you would like to access the recording, or if you have any queries around managing clinical risk, medical indemnity arrangements, data sharing or contractual arrangements with practitioners and the impact on your organisation, please speak to Sian Bond, Anna Walsh or Andrew Latham to find out more about how Capsticks can help.