The Paterson inquiry is a missed opportunity to tackle systemic patient safety risks in private healthcare

Originally published on the BMJ Opinion blog here.

The report of the Independent Inquiry into the issues raised by Paterson is yet another missed opportunity to tackle the systemic patient safety risks which lie at the heart of the private hospital business model.

While the Inquiry provided an important opportunity for the hundreds of patients affected to bear witness to the pain and harm inflicted upon them it fundamentally failed as an exercise in root cause analysis.  

None of the “learning points” in the final report touch on the financial incentives which may have led Paterson to deliberately over treat patients. Nor do they cover the business reasons which might encourage a private hospital’s management not to look too closely.

Yet these concerns about how the private hospital system works and the associated patient risks it produces had been established in a number of previous inquiries.  

The Verita review into Paterson’s actions found that under the private hospital business model, it is the consultant and not the patient which is the hospital’s “primary customer”. This is because it is the medical consultants who bring patients to private hospitals and hence provide them with their main source of business.

This finding was echoed by the 2018 CQC report into the private hospital sector and was also a feature of the 2014 Competition and Markets Authority investigation which found that there was intense competition between private hospitals to win referrals from consultants leading to a “widespread” scheme of financial inducements which came close to breaching the Bribery Act.    

To get some indication of how valuable consultants are to private hospitals, Laing and Buisson’s study of the private hospital market in London in 2018 found that at one London hospital the average revenue generated by a consultant with practising privileges was £380,000 a year with some consultants reputedly generating millions of pounds of income for their hospitals.

Although the Inquiry refused to carry out an examination of the value of Paterson’s work to Spire it is possible that this would have been worth millions to them. 

Yet, while acknowledging that there was “wilful blindness” by those around Paterson, the Inquiry report does not question the possibility that this may have been because there would be no financial incentive to stand up to a surgeon who was generating large sums for the company, even if they were suspicious about his behaviour. 

Moreover, the incentive on the part of  private hospitals in general to challenge the activities of their consultants is lessened by the fact that the consultants are not directly employed by the hospital but instead rent a room from the hospital to perform their services – an arrangement which is highly beneficial for the consultant and the hospital for tax purposes.  

Under HMRC rules in order to maintain self employed status there must be no “direct control” over what a worker does, nor how the worker carries out the work – an arrangement which in a healthcare setting militates against good clinical governance and audit, and indeed good surgical practice.

And this self employment model also provides private hospitals with a way of insulating themselves from any clinical negligence claims as they can legally deny liability for the actions of the consultant who is not directly under their control.  

So clear are private hospitals about where their responsibilities for patient safety end, that the hospital where Paterson operated wrote to one of his harmed patients informing her that they were “under no obligation to provide competent surgeons to perform breast surgery at the hospital”

Spire has put out a statement which apologises, accepts there were missed opportunities to challenge his behaviour, but says that they have made progress in addressing the issues highlighted in the report.

While the Inquiry report recommends that this “gap in liability and responsibility” should be addressed by the government, from a patient safety perspective the only way to ensure that private hospitals are truly safe is for them to directly employ their medical professionals. 

But instead of recommending this change and other changes which might upend the private hospital business model, the Inquiry report instead threw the responsibility for managing patient safety risks back to the patients themselves in two of its main recommendations.  

The first recommendation of the Inquiry is the creation of a publicly available database which should contain “critical consultant performance data” and which can be presumably used by patients to help them judge the competence and safety of a consultant rather than having to rely on “hearsay and an inflated local reputation” as happened in the Paterson case.

The second recommendation is that patients should be told in advance about the differential risks between receiving treatment in a private hospital and an NHS hospital. This would mean that any patient choosing to go private (either funded by the NHS or private) should be made fully aware that private hospitals do not have post-operative care facilities to cater for any life-threatening complications.     

However, caveat emptor is not a principle which should apply in a modern health care system. The well-known “asymmetries of information” which exist between a patient and a medical professional are the reason why both system and professional regulation exist. 

It should be for the healthcare provider first and foremost to ensure that the professions that they employ are safe, competent and properly supervised and for this form of assurance to be underpinned by a well- functioning system of licensing and revalidation by national regulatory bodies. And it should be down to hospitals to provide adequate post operative care facilities if they are to be licensed by the Care Quality Commission to undertake invasive surgery.  

It should not be down to patients to determine for themselves if they are prepared to run the risk of developing post operative complications in a private hospital and being left in the care of a single unsupervised junior doctor working 168 hours a week as numerous coroners’ reports have found.

Twenty years ago the health committee identified the same systemic risks in the private hospital business model as were present in the Paterson case. Despite numerous high profile patient deaths and the maiming and injury of hundreds of women, the resistance to reforming this risky way of delivering healthcare suggests the strength of the interests which benefit from the current way of working.