Paterson Inquiry

Baroness Brinton Excerpts

Tuesday 4th February 2020 Lords Chamber

[Baroness Thornton (Lab)]

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.

[Baroness Brinton (LD)]

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?

[Baroness Blackwood of North Oxford]

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.