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Paterson Inquiry

Volume 801: debated on Tuesday 4 February 2020


My Lords, with permission, I will now repeat a Statement made by my honourable friend the Minister for Mental Health, Suicide Prevention and Patient Safety regarding the Paterson inquiry. The Statement is as follows:

“This morning, the independent inquiry into the issues raised by the disgraced surgeon Ian Paterson published its report. The inquiry was tasked with reviewing the circumstances surrounding the jailed surgeon’s malpractice that affected so many patients in the most appalling way. As the report states, between 1997 and 2011, Paterson saw 6,617 patients, of whom 4,077 underwent a surgical procedure in the independent sector; and between 1998 and 2011, Paterson saw 4,424 patients at HEFT, of whom 1,207 underwent a mastectomy.

The report contains a shocking and sobering analysis of the circumstances surrounding Ian Paterson’s malpractice. It sets out the failures in the NHS, the independent sector and the regulatory and indemnity systems. As a result of these failures, patients suffered unnecessary harm. Their testimonies in the report make harrowing and appalling reading and, as such, it is with deep regret that we acknowledge the failure of the entire healthcare system to protect patients from Ian Paterson’s malpractice and to remedy the harms.

Nothing that I say today can lessen the horrendous suffering that patients and their families experienced and continue to go through. I can only start to imagine the sense of violation and betrayal of patients who put their trust in Ian Paterson when they were at their most vulnerable. That the inquiry reports today, World Cancer Day, makes this all the more poignant, and I apologise on behalf of the Government and the NHS for what happened, not least that Ian Paterson was able to practise unchecked for so long.

I would also like to pay tribute to the bravery of all those former patients who came forward to tell their stories to the inquiry and whose anonymised accounts have been recorded in the report. I know that this will make for difficult reading, as it highlights the human cost of our failure to detect and put a stop to Ian Paterson’s malpractice. A catalogue of failings resulted in harm to thousands of patients, causing devastation to countless lives. Some of these patients were let down several times, not least by the providers and the regulatory system that should have protected them, and by the failure of the medical indemnity system to provide any kind of redress at the first time of asking.

From the outset, Bishop Graham wanted patients and their families to be central to the inquiry’s work and to be heard. It was right, therefore, that patients and their families saw the report first—early this morning, shortly before it was presented to Parliament. Two aspects of the report are particularly striking: that the various regulatory bodies failed in their main tasks; and the absence of curiosity on the part of those in positions of authority in the healthcare providers, in the face of concerns voiced by other health professionals.

The report presents a tangled set of processes. Accountability was not exercised when it should have been, and some of the problems arose from not following through on established procedures, as opposed to insufficient procedures being in place, so we must take full responsibility for what happened in the past if we are to provide reassurance to patients about their protection in the future. I am therefore grateful that the suite of recommendations based on the patient journey presents a route map to government. The recommendations are extremely sensible and we will study them in detail; I can promise the House a full response in a few months’ time. That response will need to consider the answers to some very important questions that cut right across the healthcare sector. Unequivocally, regardless of where patients are treated and how their care is funded, all patients should be confident that the care they receive is safe and meets the highest standards, with appropriate protections, and that they are supported by clinicians to make informed decisions about the most appropriate course of care.

I am also very aware that it is not the first time that regulatory failure has been highlighted in an inquiry report. We have done much to make the NHS a safer system in recent years: revalidation, a reformed CQC and the work by the Independent Healthcare Providers Network to establish a medical practitioners assurance framework to oversee medical practitioners in the independent acute sector. However, in the case of Ian Paterson, the system did not work for patients and recent events at Spire show that there are still serious problems to address.

Patient safety is a continual process of vigilance and improvement. The inquiry does not jump to a demand for the NHS and the independent sector to invent multiple new processes, but to actually get the basics right, to implement existing processes and for all professional people to behave better and to take responsibility.

Last summer, NHSE/I published a new patient safety strategy, led by the national patient safety director, Dr Aidan Fowler. It focused on better culture, systems and regulation—very sensible but familiar words; all things that today’s inquiry says were not delivered. What we need now is action across the NHS and its regulatory bodies, and the same determination to change the independent sector.

We are absolutely committed to ensuring that lessons are learned and acted on from the findings of this shocking inquiry, in the interests of enhancing patient protection and safety in both the NHS and the independent sector. For today, I apologise again on behalf of the Government and the NHS, and send my heartfelt sympathy to the patients and their families for the suffering they have endured.”

My Lords, I thank the Minister for repeating the Statement made by the Health Minister in the Commons today. Two hundred and eleven former patients of Paterson, or their relatives, shared their experience with this inquiry. This report makes for harrowing and appalling reading, as the Minister said. Ian Paterson wilfully abused the trust placed in him by patients at their most vulnerable. At his hands, hundreds of women underwent extensive, life-changing operations for no medically justifiable reason. His unregulated cleavage-sparing mastectomies, in which breast tissue was left behind, meant the disease returned in many of his patients. Others had surgery they did not need and needlessly lived under the shadow of cancer for many years. This should never have been able to happen, let alone go on unchecked for so long.

As the Minister has done, I pay tribute to the courage, tenacity and persistence of many of these women and their families in exposing the injustice. I thank the panel, under the leadership of its chair, the right reverend Graham James, for uncovering the extent of Paterson’s malpractice and the systems that allowed it to continue despite repeated warnings.

The victims of Paterson’s malpractice were let down time and again by the NHS trust and an independent healthcare provider, which failed to supervise him appropriately and did not respond correctly to well-evidenced complaints about his practice, and by the wholly inadequate recall procedures in both the NHS and the private sector. The report identifies failures on the part of individuals and institutions, saying that

“a culture of avoidance and denial”

meant that those working closely with Ian Paterson did not spot his behaviour or were unwilling to challenge it. On the contrary, the report concluded that

“Paterson’s behaviour and aberrant clinical practice was excused or even favoured.”

What action does the Minister propose to support a change in the culture of the health service that encourages staff to speak up?

There is a potent example on page 130 of this report:

“The operation and awarding of practising privileges is defined in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 … Practising privileges are based on the ‘scope of practice’—that is, the procedures a consultant is competent to perform in the independent sector are based on what they undertake in the NHS … In Paterson’s case … he did not limit himself to operations he was competent to perform in the independent sector. He was undertaking operations and procedures he did not do in the NHS. Measures to monitor and limit this at Spire were inadequate.”

What has changed? Is this still the practice in the private sector? Indeed, is it still the case that private hospitals incentivise referrals from consultants who have been given shares in their private hospitals? That is what the report suggests.

Can the Minister confirm that the Government will urgently bring forward legislation to give private patients the same protection provided by the NHS, as called for by the lawyers representing hundreds of Paterson’s victims? The Centre for Health and the Public Interest has called for Paterson’s income and earnings, as well as the profits made by Spire Healthcare, to be treated as income from criminal acts, which could mean that they could be reclaimed. Can the Minister advise on whether this aspect has been referred to the CPS?

The Independent Healthcare Providers Network, which represents the sector, has already said that more needs to be done to ensure that information is shared between the NHS and private companies about their doctors. What action are the Government taking to facilitate this information sharing?

We cannot undo the awful harm that Paterson’s criminal action has caused so many, but we must act to ensure that lessons are learned and changes made so that something like this does not happen again. This report must not remain on a shelf to be forgotten, because it is clear: this was not just the act of a rogue, lone surgeon; systemic organisational failures were at fault as well. Fundamentally, it is time we addressed the question of safety in private healthcare providers and the way in which clinicians can operate in private providers with little oversight. I would be grateful if the Minister could share her thinking about this with the House.

The inquiry makes a number of recommendations about transparency and accountability, and I hope the Government mandate health bodies to implement those quickly. As the Minister said, the fight that the patients had to make for compensation was shameful.

Around a third of all private hospital income now comes from NHS procedures such as hip replacements, hernia repairs and cataract procedures, yet safety standards in the private sector often leave much to be desired. How is the NHS addressing patient safety in this regard? Apart from anything else, there are very few critical care facilities available in private hospitals, so patients are transferred to NHS hospitals when things go wrong and complications occur. I would like to know whether private hospitals can be held liable for this use of the NHS. The previous Secretary of State wrote to the private hospital sector in 2018, telling it to get its house in order on patient safety, and he was absolutely right.

If it is decided that the Government wish to legislate on this matter, I urge them to do so swiftly and bring forward proposals. I promise the Minister that she will have constructive co-operation from these Benches, so let us get on with it.

My Lords, I echo the points just made about the speed of the Government’s reporting. It is extremely helpful that the Minister in another place apologised clearly for the failures in the system and paid tribute to the victims. I too pay tribute to them and their families for their tenacity over many years, when it was clear that something was going wrong but the people who were in a position to gather information and do something chose not to.

The Statement says:

“I can promise the House a full response in a few months’ time.”

This public inquiry has rightly taken two years—it was slightly delayed by the general election and purdah—but it was clear in 2017 what many of the issues were. The excellent report from the Centre for Health and the Public Interest published in November 2017 entitled No Safety Without Liability: Reforming Private Hospitals in England after the Ian Paterson Scandal set out in a slightly different format many of the recommendations in front of us. I am sure that the Department of Health, the NHS and the independent hospitals will have looked at those recommendations.

I ask the Minister right up front: how long will it take before recommendations come back to the House from the Government on where they want to take things? After all, we have a Bill that is almost ready to go—or perhaps, as I said yesterday on the Second Reading of the Birmingham Commonwealth Games Bill, Groundhog Day is coming around again for us. Let us use that opportunity, at the very least, to remedy the obvious shortfalls in the system.

One of our major concerns is regulation of indemnity procedures for healthcare. There are serious shortcomings that must be dealt with as soon as possible. I was extremely concerned to read in the recommendations about the arrangements private hospitals have with clinicians to carry out their own activities that are rather like self-employed contractors almost renting an out-patient desk and in-patient beds. That is similar to renting a barber’s seat but without the overseeing regulations you need when people’s lives and health are absolutely at risk. That must be managed immediately.

Independent hospitals must take responsibility for their actions, so it is good that one of the key recommendations tries to focus minds on filling the gap between responsibility and liability. The report from CHPI two years ago said that this was vital and that independent hospitals must employ doctors and healthcare professionals, because without that responsibility on their behalf they will continue to wriggle out of liabilities and choose not to monitor clinical practice, missing either ill-meaning or incompetent surgeons. That cannot happen in the NHS and trusts have to take responsibility, as they do when things come to light. This hole in the current system needs to be remedied swiftly.

The inquiry also makes the important point that boards must apologise meaningfully and as early as possible. The UK health system, whether NHS or independent, has an extremely poor record of apologising, or of even commenting at all. Worse, it often tries to bury problems, denying whistleblowers any access. I am afraid that this is part of the systematic culture exposed in this very important inquiry—one that fears liability above apology and, equally importantly, does not learn well from mistakes, especially if through malpractice.

It is shocking that patients were often not guided to the Parliamentary and Health Service Ombudsman or the Independent Sector Complaints Adjudication Service. Compare that with the Financial Ombudsman Service: financial services companies must signpost access to the ombudsman at every step of the way when people buy financial products. A financial service problem could result in a loss of money, but a medical problem could end up changing lives for ever, as in the Paterson cases, so when will the Government deal with this issue? Will there be compulsory signposting for patients and clarity over whether all independent hospitals have to sign up to an independent complaints adjudicator—preferably just one, but I understood from what the Minister said in another place that they cannot regulate the independent sector completely? Frankly, as far as healthcare is concerned, my party believes we should.

Once again, the Paterson case demonstrates the need for effective whistleblowing processes. Will the Government commit to an office of the whistleblower to, through legislation, give more protection to patients, whether they are in the NHS or the independent sector? Spire Healthcare has said that it has put more measures in place to encourage staff and patients to speak out since the Paterson case, but even the Statement refers to there still being problems in Spire Healthcare. This just demonstrates that this is not working. Paterson’s victims are very clear: we need a system within the NHS that protects patients and staff. That is equally true of the independent sector.

I end by repeating my initial question: can we please have a timetable for the Government to come back to Parliament with proposed changes, given that a Bill is waiting that could easily be amended for both Houses to attend to speedily?

My Lords, I thank the noble Baronesses for those very important questions on this very serious inquiry. I will try to respond to as many as I can in detail, bearing in mind that the Government are carefully considering the recommendations on an issue that deserves serious consideration.

I will reply first to the question on the Government’s responsibility for the independent sector. As I stated, patients in England have a right to safe and proper healthcare regardless of where it is provided and how it is funded. We are committed to ensuring that public and private sector providers adopt proper measures for protection of their patients, as was rightly raised by the noble Baroness, Lady Brinton. As she said, following a CQC report on acute care in the independent sector, my right honourable friend Jeremy Hunt wrote to the NHS Partners Network and chief executives, seeking their co-operation on a range of safety and quality issues, which will be followed up. Further, the independent sector has published a medical practitioner framework requiring consultants’ practising privilege to be reviewed regularly. Furthermore, the regulatory system has evolved since Paterson was practising, with fundamental standards of care, intelligence-led inspections and greater scrutiny of clinical governance as part of the well-led domain. However, this report is a rightful challenge to us to take a more strategic approach, and to regulate smarter and not harder when problems arise so that we can make sure these issues do not arise.

I would like in particular to pick up on the point made by the noble Baroness, Lady Brinton, that it is vital that the NHS has excellent directors to ensure that it can deliver the right standard of care. The Government have accepted in principle recommendations 1 and 2 of the Kark review,

“to develop specified standards of competence that all directors who sit on the board of any health-providing organisation should meet, and to create a central database of directors.”

The noble Baroness, Lady Harding, the chair of NHS Improvement, is taking this work forward as part of the people plan. This should also improve the standards available.

I must make the point that Paterson is in jail. This demonstrates that action has been taken. We have moved further from where we were. The GMC introduced revalidation in 2012 and the CQC started inspecting the independent sector in 2014. However, we will never be complacent because we recognise that there is much more to do, as the report makes clear. The staff and clinicians need to be more open, as has been stated. That is one reason why we introduced the 500 “freedom to speak up” guardians in 2015. When we speak to people, we know earlier where there are problems. As the inquiry says, we need better systems. I will go back to the national guardian, Henrietta Hughes, to ensure that she is as supported as possible in making these systems work effectively.

Regarding indemnity products, we understand how important it is, not only that patients are able to obtain compensation but that the process for assessing that compensation is easy to understand. We are considering this carefully as part of the response, and whether regulation is an appropriate means of addressing concerns about the indemnity cover of health professionals not covered by a state-backed scheme. This includes the consideration of clarity for patients seeking redress. I hope this reassures the noble Baroness.

There are widespread considerations about how cosmetic procedures not currently covered by the CQC are regulated. I hope I have answered most of the questions. We also recognise that while ISCAS is a second line of complaints system for independent patients, it may not be working for PPUs in the NHS. We will be considering that as part of our response. As for the timeframe for that response, we are looking at a three-month window, but want to ensure that we respond appropriately, carefully taking into account the points raised. As pointed out by the noble Baronesses, there are some quite knotty questions to take into account, which may require regulatory or even legislative responses. We must ensure that we get that right and respond in an appropriate timeframe.

The one further point to put into the mix is that it is still appropriate to take into account that there are many good-quality care providers in the private sector, so NHS commissioning through those providers is still appropriate. We must ensure that the regulatory system works in an appropriate manner and that, where there are concerns, people feel free to speak up and action is taken to protect any patients who may be at risk.

My Lords, as a past president of the Royal College of Surgeons, I wish to associate myself with the comments of the current president, Professor Derek Alderson. In response to the report, he said:

“The horrific experience of patients at Paterson’s hands is laid bare in today’s report. The healthcare system has failed hundreds of patients and their families, and we must learn from what went wrong. Following their thorough investigation, we welcome the inquiry’s recommendations today, designed to improve patient safety.

We have repeatedly called for the same safety standards to be enforced across both the NHS and private healthcare sector. The inquiry has also stressed this and agreed with our recommendation that a single repository of information about consultants’ practice should be created. We recommended this in our evidence to the inquiry because it allows the NHS and private sector to share information and raise any concerns about patient safety much more quickly.”

When the Bill comes before us, we will be discussing the health service safety investigation body—HSSIB. Can the Minister say whether, in the light of the Paterson inquiry, the Bill might be amended to ensure that HSSIB has the power to investigate all patient safety incidents that occur in the independent private sector as well as in the NHS, not just NHS patients referred to the private sector?

In his introduction, Bishop Graham says:

“It is wishful thinking that this could not happen again.”

Well, this week the British Medical Journal reports on an orthopaedic shoulder surgeon working in the same Spire Parkway Hospital who has had 217 patients recalled because of concerns about his practice. A solicitor for the patients involved said:

“The main concern seems to be that people were having unnecessary surgery under general anaesthetic.”

There are echoes of Paterson’s behaviour. Another recall at the same hospital suggests systemic failings. Given the outcome of the Paterson inquiry, which showed that lessons have still to be learned, how can we ensure that these lessons are learned?

I thank my noble friend for that question, and for his important contribution. He is of course very experienced in this area. Obviously we are looking for time in the legislative agenda to bring forward HSSIB. It is appropriate that we consider the patient safety elements of this report’s recommendations in the context of that Bill. In the previous Second Reading debate, which we look forward to repeating, we discussed the issues around the independent sector. But we will also separately, and perhaps in conjunction with that, consult on the key changes necessary to enable data on admitted patient care to be transferred from the Private Healthcare Information Network and independent providers directly to NHS Digital, which should start to take us in the direction of closing the gap, which I know that many noble Lords in the House are rightly concerned about.

My Lords, I declare an interest as a board member of the GMC. I also chaired the Heart of England Foundation Trust from 2011 to 2014. Mr Paterson worked for the trust as well as in the private sector hospital that the Minister mentioned. I would like to add my personal apology to that of the Minister to the patients and families for the suffering that they endured. Mr Paterson was suspended shortly after I became chairman and we instituted Sir Ian Kennedy’s review. We now have a second inquiry and I pay tribute to Bishop Graham for his work. I have only had the chance to read the Statement quickly, but it seems a thorough piece of work and has many far-reaching lessons and recommendations for the health service.

I have a couple of suggestions for the Minister. First, one of the recommendations is around the way that regulators work together, or not. At the moment, legislation is rather out of date and sometimes gets in the way of collaborative working, although one should never use that as an excuse. As part of the legislative review, I wondered whether the need for reform of the whole regulatory system will be kept closely under review.

Secondly, I want to follow the Minister on this issue of NHS bodies being reluctant to own up to things that have gone wrong because of the potential legal liability. I have discussed this with bodies at the national level and they all say that that is nonsense and organisations should not fear apologising, but it is heavily in the culture of the NHS not to apologise because of potential liability. As part of the consideration of these recommendations, I suggest that the Government seriously look at giving an explicit statement to the NHS on the facts of this and encourage those working in the NHS always to be open about things that have gone wrong.

I thank the noble Lord for that important and knowledgeable contribution. His point about the sharing of lessons between regulators was well made. Part of the reason for proposing HSSIB is for systemic learning of lessons that might otherwise not be available because an inquiry might happen in one trust or group of trusts and lessons might not transfer across the entire system. The whole principle of HSSIB is cross-system learning. We already have evidence that that is working.

Furthermore, the principles at the heart of the patient safety agenda that my right honourable friend Jeremy Hunt put in place were to embed a culture of learning and not blame within the NHS so that apologies can be forthcoming. We have some way to go in achieving that change of culture, but the noble Lord is quite right that leadership starts from the top and having the right statements is a good start. The principles around the place of safety, the protection of whistleblowers and allowing people to come forward and say when they think that things are going wrong without fear of retribution are steps in the right direction. The right action after that is transparency and the recommendations in this report about transparency lead to the right actions being taken from that point.