Can regulation prevent another Ian Paterson or is more radical reform needed?

The CQC’s latest report into private hospital performance is an advance on its previous examination of the subject in that it places the Ian Paterson breast surgery scandal very much at the heart of its analysis of what can go badly wrong in the for-profit hospital sector.

As CHPI’s last report showed, when the CQC worked with the private healthcare sector to develop its model of inspecting private acute hospitals it did not use the lessons of the scandal to inform their way of regulating and so it is important that this case is now given prominence in its overall review of the performance of this sector.

In fact, it is good to see the CQC acknowledge that there is an incentive structure at the heart of the private hospital model which can act against the interests of patients and their safety - namely that it is the consultants practising at the hospital and who bring in the great majority of each hospital’s revenue, who are also given the role of monitoring the performance of their colleague via a non-statutory Medical Advisory Committee.

As the CQC report rightly points out, there is a strong tendency for the clinical governance arrangements of a private hospital to treat the consultant and not the patient as the customer; indeed it was the resulting lack of oversight and deference to the consultant which allowed Paterson to get away with harming patients for so many years.

It is also important to remember that these hospitals are likely to have profited handsomely from his malfeasance - 750 patients who underwent breast surgery and numerous other unnecessary procedures will have generated a very large amount of revenue stream for Spire Healthcare, the company which employed him as freelance surgeon. This large income stream could have meant that there was no strong incentive for the hospital management to look closely at the nature of Paterson’s work.

However, what is striking when reading the CQC report is to realise that the Paterson scandal first came to light over 6 years ago and that the clinical governance arrangements which are now deemed to be problematic by the CQC have been allowed to continue throughout this time despite the scandal.

Not only that, the arrangements whereby an informal Medical Advisory Committee made up of freelancing consultants oversees the work of their colleagues are treated by the CQC as an enduring and unchangeable fact about how private hospitals in England work. However, the private hospital model carries these and other endemic patient safety risks only because CQC, the NHS, the government, and perhaps also the Royal Colleges and the BMA have allowed them to continue.

For example, the non-liability of private hospital companies for the care provided by consultants operating out of them has been ignored as a major problem. No patient should receive a letter from a CQC regulated private hospital telling them it has no legal obligation to provide them with a “competent surgeon”. Yet this is what legal representatives of Spire Healthcare wrote to one of the patients harmed by Ian Paterson, and the company still denies liability for what took place in its operating theatres.

Private hospitals are also permitted to continue to operate without having to ensure adequate provision of ICU’s in the event that something goes wrong and instead are allowed to rely on informal and undocumented arrangements with local NHS hospitals to which they will transfer their sick patients.

And this is not a question of the funds not being available to address this risk; Spire alone made pre-tax profits of £73m in 2016, and the Competition and Markets Authority found 3 of the major private hospital chains to be generating excess profit. Investing in intensive care facilities to avoid risky patient transfers is certainly affordable if the hospitals were required to do this.

Similarly, the CQC seem to think that it is adequate for the great majority of private hospitals to leave the responsibility for post-operative care to a single junior doctor employed on an agency contract working a shift of 168 hours a week – a responsibility these young doctors carry irrespective of the number of patients they have to look after and how much sleep they have managed to fit in.

Indeed it is striking that the latest CQC report does not even mention the risks arising from this practice, even though it has been cited as a contributory factor in a number of patient deaths in private hospitals.

Moreover in giving the impression that this is just "how things are” when patients choose to go private, instead of challenging an archaic model of private practice that should be challenged, the CQC fails to mention the extent to which the model is now funded by the taxpayer.

For example, our analysis of the CQC’s own data shows that about 50% of all patients in private hospitals are NHS funded, and the sector itself estimates that 30% of all its income comes from the taxpayer.

The private hospital sector operates in this unsafe way because it is allowed to do so. But it need not be like this.

The NHS has significant leverage over private hospitals because without it the private sector could not function. Not only has it provided the industry with an income stream to keep it afloat, it trains and supplies the consultants who work there and picks up the pieces when things go wrong. It also provides a host of other hidden subsidies such as having a junior doctor on call to provide advice to private hospitals, or providing cardiac arrest teams to assist them but without any reimbursement.

There is thus no reason why the NHS could not, at the very least, demand a different model for the delivery of care to its own patients - a model which prioritises the interests of patients over those of consultants.

There are other dimensions to the CQC’s regulatory model which we have previously identified as flawed but which are still not addressed by the CQC. In particular, the new CQC report makes no mention of the fact that its own ability to spot patient safety risks by monitoring private hospitals’ routine performance data will be severely reduced by its decision to stop collecting such data from private hospitals and instead to rely in future on data collected by the Private Healthcare Information Network (PHIN) - despite the fact that the quality of the data available to PHIN is incomplete and of poor quality.

But even if the CQC were to get this aspect of their regulatory model right it would still be left with a sector whose structure and way of operating is systemically unsafe.

Changing this situation requires the political will to challenge both the for-profit hospital sector and those parts of the medical profession who benefit from the current arrangements whereby the consultant, not the patient, is considered the main customer of the private hospital.

Avoiding another Paterson scandal will require more than just “tightening up” the clinical governance arrangements in private hospitals. It requires a fundamental change to how private hospitals in England function.