The independent inquiry into the breast surgeon, Ian Paterson, published its long-awaited report on 4 February 2020. The surgeon subjected his patients to unnecessary and damaging operations over 14 years and is currently serving a 20-year sentence for wounding with intent and unlawful wounding. Amy Heath examines the report’s recommendations and what these may mean for private patients subject to mistreatment in the future.

The Paterson inquiry report makes for grim reading. It describes a healthcare system which is “dysfunctional at every level”, and in which clinicians felt that the same events could happen again despite improvements having been made since Paterson was practising.

The report makes important recommendations to try to prevent such an extensive systemic failure in the future. It highlights the inequality between patients treated by the NHS and those treated in the independent sector when things go wrong.

Currently, when private patients treated in the independent sector make a complaint about their treatment, they do not have recourse to an independent body as part of the complaints process unless the hospital subscribes to the Independent Sector Complaints Adjudication Service. However, NHS patients are able to escalate a complaint to the Parliamentary and Health Service Ombudsman. The report recommends that all private patients have the right to mandatory independent resolution of their complaints. It also recommends that information regarding the ability to escalate a complaint to an independent body should be communicated more effectively to both NHS and private patients.

Communication, and ensuring that a patient is informed, is a theme that runs throughout the recommendations. The report recognises that patients are usually unaware of the differences in how care is arranged in the independent sector compared to within the NHS. The report seeks to address this with a recommendation that both patients having private treatment and those being treated in the private sector but funded by the NHS are advised of those differences. This would include details of any provisions that are in place regarding emergency and intensive care, which are services that are frequently unavailable at private hospitals. It would also include details of the indemnity position for claims and clarification of how the consultant is engaged by the hospital.

Consultants practising in the independent sector are usually self-employed and granted practising privileges at the hospital. The legal position is, therefore, unclear as to whether the hospital would be considered to be vicariously liable for the consultant’s actions. Legal commentary suggests that the case law is going in the direction that they might be, but it is uncertain. If a patient is treated within the NHS, the position is clear, and the NHS trust assumes responsibility.

In cases involving treatment in private hospitals, the consultant would usually be pursued as an individual, and they are legally required to have indemnity cover to deal with such an eventuality. However, in the Paterson case, the Medical Defence Union withdrew cover for claims due to Paterson’s criminal conduct. If a medical defence organisation acts in this way (rather than use its discretion to offer cover despite the doctor’s criminal actions), an injured claimant will be undercompensated because they have been treated privately and not in the NHS.

At Stewarts we have seen an increasing number of claims where medical defence organisations have exercised their discretion to withhold or withdraw cover for claims, leaving doctors without cover and, critically, injured clients without access to proper compensation. This serves no-one well. The report’s recommendation that the Government urgently reforms the current regulation for healthcare indemnity is welcomed. What is also important is the report’s recommendation that a safety net be introduced to ensure that patients are not disadvantaged when they are treated in the independent sector. This would be akin to the Motor Insurance Bureau who become involved in claims involving road traffic accidents with uninsured drivers.

The majority of the witnesses involved in the healthcare sector who gave evidence at the inquiry described the current system as not fit for purpose. Given this feeling and the strength of the report’s calls for reform, does this mark the end of discretionary indemnity?

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