With over 500,000 NHS patients now being treated every year in private hospitals across England the time has come for the NHS corporately, and referring clinicians individually, to consider their own responsibility for the safety of NHS patients in private settings.
The law is reasonably clear on this subject. It has long been established that public authorities cannot delegate their health and safety duties simply by contracting out their services – they remain liable and responsible for health and safety even if the services are being delivered by a 3rd party.
In addition, the GMC guidance for medical practitioners on delegation and the referral of patients states that “you must be satisfied that systems are in place to assure the safety and quality of care provided”.
NHS England and referring GPs would argue that all private hospitals are regulated by the CQC and this avoids the need to carry out additional inquiries to ascertain the safety of the facilities
From a patient’s point of view this makes sense – patients have to be able to trust that a doctor will not refer them for treatment to an institution where there are safety concerns; they should not be put in harm’s way. And this applies to both the NHS and the private sector.
Of course, NHS England, which set up the Choose and Book system, and referring GPs, would argue that all private hospitals in England are regulated by the CQC and this avoids the need to carry out additional inquiries to ascertain the safety of the facilities.
But as research undertaken by the CHPI shows, and the two tragic cases highlighted by Shaun Lintern in HSJ demonstrate, the assurance provided by the CQC inspection regime is highly questionable, to the point where a review of the commissioning arrangements by the NHS, and a review of the CQC inspection model, are urgently needed.
For example, in the case of Michael Battersbee one of the conclusions from the coroner’s report was that the BMI hospital should have rejected him for treatment on the grounds that his “body mass index was too high for safe treatment”.
Yet the CQC’s 2016 report on BMI’s The Shirley Oaks Hospital (after Mr Battersbee’s death) reported that:
“There was an admission criterion for patients wishing to have treatment in the main hospital. Patients with certain complex problems or high body mass index (BMI) were not admitted. The criteria ensured patients were not given treatment or care where the hospital could not provide the required level of support.”
The report added, “However, medical staff told us at times they were unsure if some of the patients were admitted were appropriate but it was the consultant’s decision.” This can hardly be said to highlight the serious nature of the risks that Mr Battersbee’s death showed patients were being exposed to.
In the case of Peter O’Donnell, an NHS patient who died in an NHS hospital following treatment in a BMI hospital, the CQC reported in 2015, before Mr O’Donnell’s’s death, that:
The coroner, however, found in 2018 that at the BMI hospital “Neither protocols nor procedures existed for the transfer of unwell patients to local acute hospitals”. Indeed arrangements were only put in place to justify the transfer after Peter’s death.
Systemic patient safety problems
On top of these two issues are the systemic patient safety problems in private hospitals which have been recounted countless times since the Health Select Committee Inquiry into the subject in 1999. To state some of these again:
- Post-operative care in most private hospitals is carried out by an inexperienced junior doctor, often recruited from outside the UK, working 168 hours a week shifts without supervision.
- The consultant who carries out the surgery and who is responsible for the patient is permitted to be off-site, in some cases 45 minutes away (despite the fact that the Royal College of Surgeons recommends that the consultant should be no more than 30 minutes away).
- The nature of post-operative care has been cited as a factor in a number of patient deaths.
The data on patient safety incidents in private hospitals is poor and they are not required to notify patient safety incidents in the same way as the NHS
- The lack of intensive care facilities in most private hospitals means that when things go wrong the patient is transferred to an NHS hospital. The very act of transferring a critically ill patient is a patient safety risk in its own right.
- The data on patient safety incidents in private hospitals is poor and private hospitals are not required to notify patient safety incidents in the same way as the NHS.
Added to this is the fact that some private hospital companies appear to have adopted a policy whereby they will deny liability for any harm caused by healthcare professionals who are carrying out work on their premises under “practising privileges”.
This denial of liability substantially undermines one of the key incentives for delivering safe care – namely the need to avoid massive financial pay-outs as a result of avoidable deaths or injuries to patients.
Of course the decision to refer NHS patients to the private sector, particularly by the Choose and Book system, or by acute trusts which refer patients to private hospitals to clear waiting lists for elective surgery, are corporate decisions: it might be difficult, and perhaps unfair, for individual GPs or clinical directors to be held to account for the consequences of their referral decisions.
But NHS commissioners and clinicians should be aware that it will be difficult to avoid blame, and possibly legal consequences, if NHS patients are harmed in private hospitals, now that the safety risks involved have been so clearly documented.