The government publishes its long-awaited response to the Paterson Inquiry

The Paterson Inquiry has again reared its head as the government gives its full reply to the findings of the independent inquiry led by the Reverend Graham James, former Bishop of Norwich.

For those unfamiliar with the origins of the Paterson Inquiry, Ian Paterson is a disgraced breast surgeon who was jailed for 20 years in 2017 after being convicted of 17 counts of wounding with intent and three counts of unlawful wounding of patients he had treated in the private sector. Paterson subjected more than 1,000 female patients, including children, over a period of 14 years, to operations that were either medically unnecessary or left them exposed to a recurrence of breast cancer. Paterson later  became the subject of an Inquiry which concluded in February 2020 with multiple recommendations being made to prevent this kind of gross malpractice from occurring again.  Of particular interest to the Inquiry was the inherent failure of the system to stop these events over so many years of practice in the NHS and independent sector.  

The 15 formal recommendations made as a result of the Inquiry, though far reaching, fall short of demanding new regulatory and assurance processes. The chair of the Inquiry described a ‘healthcare system which proved itself dysfunctional at almost every level’, but did not advocate for a total regulatory overhaul. Rather, the focus of the recommendations was to ‘get the basics right and implement existing systems’ in both the NHS and private medical sectors, making full use of the resources available to ensure proper oversight and scrutiny of medical professionals.

The Inquiry recommendations included:

  1. A database of consultants across the country, with public accessibility, listing performance data pertinent to their practice area
  2. Treatment communications to be made in plain English
  3. Distinctions between the systems of the NHS and private sector to be clearly explained to patients
  4. The use of a “reflection period” for patients prior to consenting to treatment
  5. Mandatory use of MDTs for breast cancer cases, to be overseen by the CQC
  6. Better communication of complaint pathways to patients with independent complaints resolutions becoming mandatory in the private sector
  7. Patient recall processes to be managed via a national framework
  8. Urgent government reform of discretionary indemnity
  9. A review of the collaboration between regulatory bodies to ensure that it can effectively serve patient safety
  10. Suspension of healthcare professionals should a Hospital investigation result in any perceived risk to patient safety
  11. The Government to review and redress the gap in responsibility and liability in the private healthcare sector
  12. Hospitals to issue apologies immediately upon finding wrongdoing
  13. Any arrangements made in response to these recommendation to be applied across the sector including private, insured and NHS funded treatment.

The remaining recommendations were for hospital specific recalls of approximately 11,000 patients previously treated by Paterson who might have been adversely affected by his clinical failings.

The initial government reply

Nadine Dorries, the then Health Minister, issued a statement on 23 March 2021 detailing the Government’s initial response to the findings of the Inquiry. Ms Dorries confirmed that five of the recommendations had been actioned, either by the NHS, Spire or other professional bodies. The ‘terrible harms’ to which patients were exposed at the hands of a ‘rogue surgeon’ were acknowledged and some clear actions had been taken in respect of the Inquiry’s findings including the mass recall of patients from the University Hospitals Birmingham NHS Foundation Trust and Spire Hospitals, with 9,894 patients having been recalled by the time of the Government’s initial response.

However, critics of the response noted that other than these relatively small and finite tasks, much of the statement had little substance or promise of substantial change.  Besides pointing out the mechanisms that already exist (which existed at the time of Paterson’s crimes), not much came of Mrs Dorries first response to the Inquiry report.  Perhaps of most note were the following; 

  • A Patient Safety Commissioner (PSC) with responsibility for championing patient safety, is to be established for patients in England and their appointment is anticipated by spring 2022.
  • The Health and Care Bill (initially a White Paper published in February 2021 and currently percolating in the House of Lords) which, amongst other proposals, included a private sector extension of the remit of the Health Service Safety Investigation branch.

The full government reply

The Government has now released its full reply to the Inquiry report and current Health Secretary, Sajid Javid, has struck a balance between the need for change and deference to the regulatory systems already in place. In keeping with the recommendations of the Inquiry report, the Government has focused upon the reinforcement of existing systems with many elements remaining ‘under review’ or deferred until the end of 2022.

In responding directly to the recommendations, the Government has accepted nine of the recommendations outright, a further five have been accepted in principle, one recommendation is not accepted and those remaining are being kept ‘under review’.

  1. The Government has accepted, in principle, the idea of a single repository of consultant information but has not yet consented to the exact nature of the information to be published. Furthermore, they have suggested that it will only be accessible by ‘managers and healthcare professionals’ and not the general public as recommended. Mr Javid has committed only to reaching a decision ‘over the next 12 months’
  2. The requirement for writing to patients in simple English about their condition and treatment was accepted. However, again, a timeframe of 12 months has been given for an exploration of potential systemic changes to implement this
  3. The Government has agreed to commission the production of ‘independent information to make people aware of the ways in which their private care is organised differently from the arrangements in the NHS’, again, this will be deferred until 2022
  4. The creation of a pre-treatment ‘reflection period’ was accepted in principle only. The response seems to have effectively delegated this duty to the GMC, noting that the guidance in Good Medical Practice already confirms that patients should be given time to consider their treatment options.  No specific enforcement or monitoring measures are referenced beyond the existing GMC and CQC procedures
  5. The mandatory use of MDT meetings in breast cancer cases has been accepted in the response. It is noted that the CQC has now added more detailed and specific prompts on MDT working to the inspection framework for diagnostic imaging services
  6. In addressing the concerns regarding complaints processes in the NHS and independent sector, the government confirmed:
    • NHS – the pilot scheme ‘NHS Complaints Standards’ is being rolled out by the Parliamentary and Health Service Ombudsman (PHSO)
    • Private sector – it is accepted that there is a right to mandatory independent resolution of patient complaints. Unfortunately the government only confirm that the CQC will ‘strengthen its guidance’ in relation to this and the situation will be reviewed over the course of 2022
  7. The implementation of a national protocol for the management of patient recalls was accepted and it was confirmed that “the National Quality Board (NQB) will own the framework, which will be published in 2022 and periodically updated
  8. The issue of urgent reform of discretionary indemnity products for healthcare professionals is yet to be addressed by the government.  The response to this recommendation is still ‘pending’ and the government has indicated an intention to extend the 2018 consultation on appropriate clinical negligence cover for regulated healthcare professionals to consider ‘the issues raised by the Inquiry’ with proposals for reform to be reviewed in 2022
  9. The recommendation that the government should ‘ensure that the current system of regulation and the collaboration of the regulators serves patient safety’ was accepted. However, no specific solution has been proposed, with the Government relying upon the ‘new corporate strategies’ of the key regulatory bodies and the ‘DHSC plans to draft legislation in relation to the GMC in 2022’
  10. Importantly for healthcare professionals, the recommendation that ‘any perceived risk to patient safety’ should result in suspension was not accepted. The Government argued that it would not be fair to ‘impose a blanket rule’ and it noted the potential for inadvertently dissuading whistleblowers.  The Government asserts that the existing procedures are robust and that guidance is already in place to ensure that concerns are taken seriously
  11. The notion that concerns should be communicated to other providers for whom a healthcare professional works was accepted in principle. However, it was qualified by noting a requirement for ‘ an element of judgement by providers’ to ensure that information is ‘appropriate and accurate’
  12. The recommendation to close the gap in ‘responsibility and liability’ between the NHS and private sector was accepted in principle, however no new systems are proposed to enforce this. Instead, the Government response refers to ‘The Medical Practitioners Assurance Framework (MPAF), published in 2019 by the Independent Healthcare Provider Network (IHPN)’ and the CQC continuing to assess clinical governance as a standard part of their inspection criteria
  13. The Government accepted the recommendation that wrongdoing should be followed by an immediate apology from boards. However, they note that this is already covered in the statutory duty of candour and no substantive comment was made on the potential effect this has on perceived liability
  14. The recommendation that any changes be mirrored across the NHS and private sectors was not accepted and is marked for further review. However, it seems that the basis for this rejection is simply that they believe this would change the qualification process for NHS contracts and they suggest that ‘independent sector providers are fully committed to implementing changes alongside NHS providers’ already.

Critics, including Debbie Douglas who was instrumental in getting the independent Inquiry established, have castigated the Government response as merely ‘kicking the can down the road’. Many of the responses involve the deferral of meaningful actions, relying instead on the systems already in place and whose oversight allowed Paterson to inflict the lasting damage for which he has been imprisoned.

There can be no doubt that the majority of the medical profession support the improvement of patient safety and robust systems intended to respond when things go wrong.  Significant advances in this regard followed the Mid Staffordshire Inquiry and may yet follow the Paterson Inquiry.  Certainly the outcome of consultations relating to medical indemnity cover and any proposed DHSC legislative changes will require careful scrutiny to ensure adequate safeguards and procedures to protect the interests of patients without further damaging the morale of hardworking healthcare professionals already besieged by political meddling and short-termism.  That being said, the welcome rejection of blanket suspensions for clinicians facing “patient safety” complaints and the refusal to disclose consultant performance data to the general public should be reassuring to the profession.

Much remains to be seen but 2022 may yet be the year that the Government gives teeth to the recommendations of the Inquiry.

Written by Emma Johnston, Trainee Solicitor and Adam Weston, Partner at BLM

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