Recommendations made by Paterson inquiry
An inquiry into the actions of private plastic surgeon Ian Peterson has made a number of recommendations to alleviate the gaps in patients seeking redress from private healthcare providers.
Ian Paterson was convicted in 2017 of 17 counts of wounding with intent, with jurors convicting him of three further wounding charges. His original 15 year sentence was then increased to 20 years. It is thought that he operated inappropriately and unnecessarily on well over 1,000 patients between 1997 and 2011, including two minors, both in private and NHS hospitals.
Plastic and cosmetic surgery is intrinsically linked with a patient’s psychology and mental health. Before undergoing any procedure of this nature, it is very important for the patient to be counselled from a psychological perspective, to ensure that they are completely happy with the procedure, and can mentally handle the change in their appearance. If something goes wrong, a patient will inevitably be left struggling with their altered appearance. But for most of Paterson’s patients, this was not simply a question of choosing to undergo plastic surgery or not; most had either found a lump which may have been cancerous, or had been diagnosed with cancer, which Paterson then exaggerated and took advantage of to allow his patients to undergo hugely drastic surgery that they didn’t need.
These patients will have suffered the physical pain, associated risks and recovery periods of the unnecessary surgery. In addition, some may have undergone at least one further procedure to try and rectify the results. They may have suffered from wound problems and infection which have prolonged their recovery. They may have suffered financial losses in the way of requiring care, losing wages from being unable to work, possibly requiring further surgery in the future. They may also have suffered psychological trauma from the drastic changes in their physical appearance, affecting relationships and their self confidence.
The Paterson inquiry has made a number of recommendations, including that surgeons should write to their patients explaining in plain English the procedure they intend to do and why, and that patients should be given sufficient time to think through surgery before undergoing it. However, these things should already be taking place. Not only is this practice already indicated in various GMC, NHS and Royal College guidelines, but it was also essentially brought into law in 2015 with the case of Montgomery on informed consent. This case brought a shift towards more patient-led discussions on their health, with an emphasis on giving the patient sufficient time to process the risks and benefits of a procedure, and whether they do indeed want to go ahead with it.
The other main recommendations made by the inquiry were in relation to private sector care and opportunities for redress. Paterson’s patients who received treatment on the NHS may have had the opportunity to bring a negligence claim against him via the NHS Trust he was operating under. However, his private patients would only have been able to bring a negligence claim against him privately as a surgeon. Currently, this is the only option for redress for private patients; a claim usually cannot be made against the private hospital where the surgeon worked. Private surgeons generally have insurance to cover for such claims; in Paterson’s case however, his insurer claimed they were not responsible because his were criminal actions rather than clinical errors.
A government organisation, the Criminal Injuries Compensation Authority (CICA), does exist for people who have suffered injury due to a criminal action. However, there are several drawbacks with this organisation, some of which have been highlighted in a recent review by Baroness Newlove.[i] Firstly, the time limits which apply to making a claim with the CICA are even shorter than those for making a civil claim for negligence. There may also be concern about the effect the CICA claim may have on the criminal proceedings, which may then cause delay and mean that the victim is out of time to make a claim. In addition, a claim may not be allowed if the victim has a criminal record themselves, even if this resulted in a community order rather than a custodial sentence. Crucially, the compensation is based on tariff figures set by the government, which is unlikely to accurately reflect the extent of both the physical and psychological pain and suffering experienced by the victim as well as their financial losses.
The CICA also only exists for victims of violent crime. This raises the important issue of what options are available for private patients who are not victims of crime, when the surgeon is no longer indemnified by their insurer (not just for criminality but maybe for another reason), does not have sufficient private funds to remedy a claim, disappears, or most alarmingly, has never had insurance in the first place? The latter is indeed rare but has been known to happen. These patients, just like those of Ian Paterson, may have suffered devastating injuries, and been left struggling financially, but would have no options available to them to put them back in the position they were had it not been for the negligence. Consideration needs to be given to closing these loopholes, and it will be interesting to see whether Ministers take heed of anything which has come out of this inquiry.
Sarah Ratcliffe is an Assistant Solicitor at Minton Morrill, and has experience in bringing a wide range of medical negligence claims. If you are concerned that you have suffered medical negligence through undergoing plastic or cosmetic surgery, you can contact us for advice on 0113 345 2382