On 4 February 2020, the independent inquiry into the issues raised by the disgraced surgeon Ian Paterson published its report, which was welcomed by the Government. On 28 April 2020, we reluctantly announced a delay in the Government response due to the unprecedented pressures of the covid-19 pandemic. On 23 March 2021, we provided an update on the progress made and committed to publishing a full response during 2021. Today, the Government have published that response.
We want to thank the Right Reverend Bishop Graham James and the inquiry team for their thorough report which provides a detailed analysis of the issues which allowed this malpractice to take place and recommends steps to better protect patients moving forward.
Our thanks also go to the patients who shared their experiences with the inquiry and to their representatives who subsequently continued to engage with the Government through the process of preparing this response. Patient voices have rightly been central to this entire process.
The Government’s response
The inquiry’s findings point to several important themes where action is needed to improve protections for patients being given hospital-based care—whether in the NHS or independent sector. These actions must improve the way our health system works for patients at every stage of their treatment journey.
The health system has to provide patient-centred information to enable patients, their families and carers to make informed decisions about their treatment and care. Medical practitioners should face regular challenge to improve the standard of care they provide as part of their overall learning and development, with concerns about their practice from any source heard and acted upon. There must be accountability across the healthcare system, ensuring quality of service from the frontline to the boardroom. Finally, when things do go wrong, patients must have the confidence that the entire system will work to put things right—meeting the needs of the patient and learning the lessons to prevent the same mistakes being repeated.
Working with patients and stakeholders, we have carefully considered all 15 recommendations the inquiry made for improving the health system. We are accepting 12 of these recommendations either in full or in principle with a further one recommendation still pending. There is one recommendation we are not accepting but keeping under review and one recommendation that we do not accept. Whether we are accepting the recommendation or not, we are taking action to improve healthcare against every recommendation.
The response outlines actions which have been taken since Ian Paterson’s malpractice came to light, in addition to detailing 40 actions for our further implementation plan. The Government will review the progress made in this implementation in a further publication after 12 months to ensure adequate action has been taken and update where additional action is planned.
Recommendation 1 calls for a single repository of the whole practice of consultants in England containing critical consultant performance data. This would be made accessible for use by both managers and healthcare professionals, and by members of the public. We accept this recommendation in principle. A significant amount of progress has been made on the collection of consultant performance data in both the NHS and independent sector. We commit to making more progress on the collection of data, use of the information it allows us to develop, and the publication of useful metrics. In 2018, the acute data alignment programme was launched to move towards a common set of standards for data collection and reporting across the NHS and independent sector. This brings together data collection through NHS Digital, with the use and processing of this data in parallel in the NHS and independent sector through the national consultant information programme (NCIP) and the private healthcare information network (PHIN). This is currently in pilot, with the potential to be fully implemented, dependent on the results of that pilot, in 2022-23. This data will be made available for managers and healthcare professionals across the system to support learning and identify outliers. PHIN is already mandated to publish information on consultant practice in the independent sector and will be continuing to roll out the publication of further metrics in the coming years. Over the next 12 months, we commit to reaching a decision with key stakeholders on what further information should be made publicly available and whether further Government action will be needed to achieve this.
Recommendation 2 asks that it become standard practice for consultants to write directly to patients about their treatment and care in language they can understand. We are pleased to accept this recommendation. Guidance across the system makes clear that this is best practice and a range of key stakeholders have agreed to write to their members to encourage the uptake of this advice. We will continue to explore with providers how their systems can change to embed this process and to monitor that best practice is being followed.
Recommendation 3 requires the publication of information explaining the differences in how care is organised in the NHS and the independent sector, so that patients can make informed decisions. We have accepted this recommendation. We will be commissioning the production of this independent information, to be created in partnership with patients, families and carers. This will be published in 2022 and made widely accessible.
Recommendation 4 calls for the introduction of a short waiting period in the decision-making process for surgical procedures, to enable reflection on the diagnosis and treatment options. We are accepting this recommendation in principle. While a specific period for general surgery is not being introduced, as the time required will depend on the patient and the procedure in question, the General Medical Council has updated its guidance to confirm that patients should be given sufficient time to consider their options before making decisions about treatments. During appraisals, doctors must demonstrate they are meeting the principles set out in GMC’s “Good Medical Practice”, and CQC takes all GMC guidance into account during its assessments across the NHS and independent sector.
Recommendation 5 relates to multi-disciplinary teams, asking CQC to assure that all hospital providers are complying effectively with national MDT guidance. We have accepted this recommendation. CQC has added more detailed prompts to its inspection framework on multidisciplinary team working. When assessing providers across the NHS and independent sector, CQC will continue to seek assurance that patients are not at risk of harm due to non-compliance in this area.
We have considered recommendation 6, which relates to complaints processes, in two parts. The first part calls for more effective communication to patients of the means to escalate a complaint to an independent body. We have accepted this part of the recommendation. The Parliamentary and Health Service Ombudsman is piloting the NHS complaints standards which set out in one place the ways in which the NHS should handle complaints. This includes the need for organisations to ensure people know how to escalate a complaint to the ombudsman. These have been developed with the Independent Sector Complaints Adjudication Service, ISCAS, who have included it in their code of practice.
The second part of recommendation 6 proposes that all private patients are given the right to mandatory independent resolution of their complaints. We have accepted this part in principle. CQC will strengthen its guidance to make clearer that it expects to see arrangements in place for patients to access independent complaints resolution. We will review the impact of this guidance in the coming year and will explore whether legislative action is needed, if insufficient action is taken.
Recommendations 7 and 8
Recommendations 7 and 8 both relate to the recall of patients of Ian Paterson by providers—University Hospitals Birmingham NHS Foundation Trust and Spire Healthcare. These recommendations have already been accepted in full. UHB has contacted all known living patients of Ian Paterson and ensured that all cases had been reviewed by June 2021. Spire had proactively contacted all known living patients by December 2020 and have now reviewed the care of over two-thirds of the patients concerned. We have asked Spire to provide an update on progress in 12 months on reviewing the remaining patients.
Recommendation 9 calls for a national framework to be developed for the recall of patients. We have accepted this recommendation. This framework has been developed and outlines actions to be taken by organisations in the NHS and independent sector in the event that a patient recall is necessary. This framework will be published in 2022 and will be owned by the National Quality Board, who will ensure it is periodically updated.
Recommendation 10 relates to indemnity products for healthcare professionals and asks for the shortcomings in clinical negligence cover identified by the inquiry to be resolved. The outcome of this recommendation is pending. We recognise that a system needs to be in place to ensure that patients have confidence that they can access compensation if harmed while receiving care, and we will bring forward proposals in 2022. These proposals will build on the consultation at the end of 2018 on “Appropriate clinical negligence cover” for regulated healthcare professionals. The summary of responses to this consultation will be published in early 2022. We have put forward an extended programme of actions in our response to work towards change in this area, and we will ensure any reforms are robust, meeting the needs of both patients and professionals, before implementing them.
Recommendation 11 calls for the Government to ensure that the system of regulation in healthcare serves patient safety, that regulators collaborate effectively and that weaknesses identified by the inquiry are resolved. We are accepting this recommendation. The healthcare regulators referenced in the Paterson inquiry (the GMC, Nursing and Midwifery Council, and CQC) exist to protect patient safety and this is reflected in their new corporate strategies. They have also taken a number of actions to encourage collaboration and information sharing between organisations. The Government’s consultation on “Regulating Healthcare Professionals, Protecting the Public” sets out proposals which address issues raised by the inquiry, including a proposed duty to co-operate for all regulators. We plan to bring forward legislation in relation to the GMC in 2022.
We have considered recommendation 12 in two parts. The first part required that any investigation of a healthcare professional’s behaviour should result in a suspension, if there is any perceived risk to patient safety. We have not accepted this recommendation. Exclusion and restriction of practice can be a necessary and appropriate response during an investigation in some instances. However, we do not believe it would be fair or appropriate to impose this step as a blanket rule in all cases. It is vital that investigations are robust and conducted in a timely manner. Guidance has been implemented in recent years to ensure concerns are taken seriously and appropriate action taken, including clear advice on when exclusion is the right step to take.
The second part of recommendation 12 proposes that any concerns about a healthcare professional at one provider should be shared with other providers they work with. We accept this recommendation in principle. Where patient safety is at risk, information should be shared. Providers must use their judgement, though, as they are taking on responsibility to ensure the information is appropriate and accurate when shared. Regulators have taken key steps to make it easier for people and organisations to share information regarding patient safety risks.
Recommendation 13 identifies a specific issue relating to the engagement of consultants through practising privileges in the independent sector. This is where the consultant is self-employed and allowed to work in the hospital’s facilities, rather than employed by the hospital. In the case of Ian Paterson, this led to a gap in responsibility and liability for the consultant’s actions. The inquiry reported the impression that private providers were just renting consultants a room, and claims for compensation took significant time and effort from patients to resolve. We accept this recommendation in principle. Independent sector providers must take responsibility for the quality of care provided in their facilities, regardless of how the consultants are engaged. The Independent Healthcare Providers Network published the medical practitioners assurance framework in 2019 to improve consistency around effective clinical governance in the independent sector. We encourage all private providers to take up this framework, and CQC will continue to assess the strength of clinical governance in all providers as part of its inspection activity. We will be using the response to recommendation 10 on indemnity products and the programme of action laid out there as the initial response to the challenges faced by patients of Ian Paterson in accessing compensation. We will additionally keep the potential liability held by providers in the independent sector under review.
Recommendation 14 says that apologies should be given at the earliest stage of investigation when something goes wrong, and that potential liability should not hold anyone back from apologising. We accept this recommendation. Healthcare organisations have a statutory duty of candour—which sets out specific requirements providers must follow when things go wrong with care and treatment, including providing truthful information and an apology. This duty is regulated by CQC. NHS Resolution consistently advises members to apologise when things go wrong and that this has no impact on potential legal liability. We continue to ensure this guidance is promoted.
Finally, recommendation 15 says that private providers should not be eligible for NHS contracted work unless they have implemented all the other accepted recommendations from this response across the entirety of their workload. We are not accepting this recommendation, but will keep it under review. Across all the issues raised in this inquiry report, independent sector providers are fully committed to implementing changes alongside NHS providers. These providers must meet the same regulatory standards as NHS providers, as required by CQC. Independent providers must meet the conditions of the NHS provider license and the NHS standard contract to be able to deliver NHS-funded treatment. Accepting this recommendation would create a duty on the NHS which would need to be carefully implemented to ensure it could be monitored effectively and would not reduce the capacity available to the NHS for providing care—particularly given the numbers of patients waiting for treatment as a result of the pandemic. We do, however, recognise the importance of ensuring change takes place. We will continue to work with the independent sector to implement the changes related to the inquiry’s recommendations and will review progress in 12-months’ time. We commit to taking robust action should progress not meet our expectations.
This response forms part of the Government’s broader commitment to patient safety, including our response to the independent medicines and medical devices safety review as previously published and the measures included in the Health and Care Bill.
Copies of the Government’s full response will be laid before the House and will be available from the Vote Office and at: https://www.gov.uk.