Ian Paterson Inquiry Update: A step in the right direction but much left to do to protect private healthcare patients

I work in clinical negligence. What this means is that when patients instruct me, I investigate the treatment that doctors have provided, and where that treatment is found to be negligent and the patient was harmed as a result, I help to secure compensation in order to meet the patient's future needs including care, rehabilitation and therapies.  

Doing this kind of work provides me a unique insight into the scale of the challenges faced by the medical profession.

Challenges within the private healthcare sector

One of the challenges that I consider healthcare providers working in the private sector (so that is the doctors operating in your local Spire, Circle, Bupa etc) face is ensuring that the level of insurance or indemnity cover that they have in place is sufficient should things go wrong and a claim is made against them. If they get this wrong, then the consequences are serious. In the face of a successful claim being made against them, and without sufficient insurance or indemnity cover, they could face having to meet the claim with their personal funds.  In the worst case, this could lead to bankruptcy. 

It also leaves patients who may have been seriously injured, with no private funds to pay for their own carers, therapies, rehabilitation. If the patient is left unable to work because of their injury, it can leave them without funds to pay for even the basics of the life they once had, for example, their mortgage.

So, getting the right level of insurance or indemnity right is essential for both doctor and patient. 

General Medical Council requirements

When doctors are working in the private sector, they must comply with the rules set out by their regulatory body, the General Medical Council (the ‘GMC’), 

The GMC states that all doctors must have ‘adequate and appropriate insurance.’   This is not defined by level or scope, so there is no specific amount required to ensure minimum coverage. The GMC also states ‘the cover you need is very much dependent on your circumstances and must be in place by the time you begin to practise’. What this means in reality is that doctors can take different views on the level and scope of insurance needed. 

You will likely have seen this mentioned in the press when a large number of patients brought cases against Ian Paterson, the disgraced breast surgeon. Many of his former private patients struggled to recover compensation because Paterson did not have adequate indemnity or insurance in place. Sadly, I have seen it in many other cases; those cases that do not hit the mainstream media but where the effect of the doctors lack of indemnity or insurance is just as great as what it was in the Paterson cases. 

Ian Paterson independent inquiry

Four years ago, an independent inquiry into the issues raised by the Paterson cases published a report in which it considered the problems with the current state of the indemnity arrangements for healthcare providers. It noted that the Medical Defence Organisations (which are the main providers of indemnity to doctors) were not subject to financial conduct regulation and the indemnity cover they provide is discretionary. It recommended that the Government should, as a matter of urgency, reform the current regulation of indemnity products for healthcare professionals in light of the serious shortcomings identified by the inquiry, and introduce a nationwide safety net to ensure patients are not disadvantaged.

Clinical Indemnities Reform statement

Last month, Maria Caulfield, the Parliamentary Under Secretary of State (Minister for mental Health and Women’s Health Strategy) published a Written Ministerial Statement providing an update on what steps the Department of Health and Social Care are taking to respond to the Paterson inquiry’s findings.  

There are some interesting points that come out in the report which surveyed more than 1,200 healthcare providers working in private practice, not least that more than one in 10 of the healthcare providers who had a claim made against them experienced difficulties with determining who's responsible for covering the costs of those claims, and one in 20 had a provider refuse to cover the claim. It also confirms that some who had their claims rejected, had not been given a reason why they were left facing a claim against them with no insurance to cover their own costs or those of the other party should it be needed.

So, how does the Department of Health and Social Care intend to address these? The update merely confirms that the Medical Defence Organisations have proposed to implement a sector-led Code of Practice by the end of 2024 and that its aim ‘is to provide greater transparency around this system of discretionary indemnity.’

Does it go far enough?

Whilst there is no doubt that greater transparency is a positive step forward, simply providing greater transparency around a system that has already been identified as needing reform is not enough – the system itself needs actual reform. Reform should ensure patient safety so that when patients are injured as a result of negligent treatment delivered in the private sector, the patient knows that the healthcare provider has an appropriate level of indemnity or insurance to meet those claims. 

This is a step in the right direction but there is much left to do.

Find out more about Irwin Mitchell's expertise in supporting patients and families affected by care issues at our dedicated medical negligence section.