The Paterson inquiry: Any perceived risk to patient safety - the impact on healthcare professionals

18 Feb 2020

In the first of a series of articles, BLM Partner, Sarah Woodwark recently, commented on the recommendations made following the publication of the Paterson Inquiry Report. A link to this can be found here.  The series will consider numerous aspects of the report that peak interest or concern for those practising within the healthcare sector. This article, the second in the series, briefly introduces the report and comments on the recommendation relating to the suspension of practitioners during investigations.

Ian Paterson was a consultant breast surgeon employed by the Heart of England NHS Foundation Trust with practising privileges in the independent sector at two Spire hospitals. In April 2017, he was convicted of 17 counts of wounding with intent and sentenced to jail for 20 years. On 7 December 2017, the government announced an independent inquiry into the circumstances. The inquiry chaired by The Right Reverend Graham Jones, Bishop of Norwich published their findings and recommendations earlier this month.

The inquiry published 15 recommendations, covering a whole host of concerns considered as part of the inquiry, such as the recommendation for a single database of consultants across England, complaints pathways to be communicated more effectively both in the NHS and independent sector, and urgent reform of discretionary indemnity policies.

Throughout the report there is a clear concern of lost opportunities for the investigation of Mr Paterson and the potential to have stopped his practice at a much earlier juncture.

We will be commenting on a number of the recommendations over the next few weeks, but in this article will deal with the issue of suspension of individual practitioners.

One recommendation made within the report is that when a hospital investigates a healthcare professional’s behaviour, any perceived risk to patient safety should result in the suspension of that healthcare practitioner.

Whilst concerns about patient safety were clearly justified in this case, there is a significant concern arising from this recommendation as it would encourage the suspension of a practitioner if there is ‘any perceived risk to patient safety’. Any perceived risk to patient safety infers that suspension will be contemplated in every case including those that previously, and even currently, would not warrant a suspension under the investigative processes both in the NHS and independent sector.

This kind of ‘knee-jerk suspension’ stands in stark contrast to the current position set out in Maintaining High Professional Standards (MHPS) that an exclusion from the workplace is reserved for only the most exceptional circumstances. Employers will be keen to not allow the lessons learned from the inquiry to be glossed over for fear of reputational damage if similar events arose again, but must also recognise there is a clear need for proportionality. How Trusts will marry the two is yet to be seen.

The risk of an increased number of suspensions will inevitably have an impact on patient care, and patient safety. Healthcare practitioners facing an investigation under MHPS and their advisers should press the trust to identify the precise concerns with give rise to the perceived risk to patient safety to ensure that decisions made about the healthcare professional’s ability to consider practising are properly addressed. The importance of addressing those concerns and finding other suitable clinical work (not just audit) should be actively considered and kept under review by both trusts and the healthcare professional’s advisors as the investigation progresses.

There is no doubt that the report will also have an impact on primary care.  The performers list regulations already provide that a practitioner may be suspended for the protection of patients. Will the “protection of patients” be interpreted more widely in light of this recommendation?

Rather like the Shipman inquiry, this inquiry has scope to influence the regulation of healthcare practitioners at a local and national level. Further concern is that the Chief Executive of the GMC, Charley Massey, in response to the inquiry, commented that:

We welcome the inquiry’s recommendations to protect patients and strengthen local oversight of doctors. We will reflect on these and look at how we can act on them as we continue our work to progress genuine, cultural and regulatory change”.

Will this recommendation (although aimed at hospital investigations) also penetrate into the worlds of the healthcare regulators and the Professional Standards Authority? There is a real potential for harsher sanction submissions being made, and a higher hurdle to overcome in discouraging Tribunals who may be considering a suspension, not only in relation to the risk of harm to  patients, but suspensions in the public interest. Tribunals must not lose sight of proportionality and should be satisfied that the actions of a doctor pose a real risk not just any risk to patient safety.                          

It is possible going forward that there may be an increased appetite for suspensions, both by trusts and by regulators. Has this new recommendation trumped proportionality with patient safety? It seems to significantly lower the bar, at least from a lay perspective. Regulators, trusts and the private sector will have to tread carefully in how they approach and whether they implement this specific recommendation.

Written by Holly Paterson, Jane Lang and Adam Weston.

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Jane Lang

Jane Lang

Partner,
Cardiff


Adam Weston

Adam Weston

Partner,
London


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