From better whistleblowing policies to improved consent processes, there is much to learn from the Paterson case, writes RCSEd Triennial Conference speaker Professor Sir Ian Kennedy for Surgeons' News March 2018
Ian Paterson was a surgeon who operated on women with breast cancer1. He worked in the NHS at Heart of England NHS Foundation Trust, where he was appointed in 1998, and in Spire hospitals in the private sector. Over more than a decade in the NHS, he carried out operations that left women exposed to an increased risk of recurrence of their cancer through resorting to an unknown procedure that acquired the name ‘cleavage-sparing mastectomy’ (CSM). In the private sector, he carried out unnecessary surgery and made fraudulent claims for payment for procedures that had not been done.
I carried out a review into Paterson’s surgical practice for the NHS Trust, which was published in 20132. In this note, I confine myself to commenting on his work in the NHS. Paterson was finally excluded from the NHS Trust in 2011, had his registration suspended by the GMC in 2012 and was removed from the register in 2017. In the summer of 2017, in relation to his private practice, he was convicted on 17 counts of wounding with intent, three other counts of wounding and counts of fraud. Spire paid out £27.2m in compensation. As for the NHS, a settlement was reached with 750 claimants for £37m.
On one level, Paterson can be compared with another doctor who earned notoriety, Dr Harold Shipman. Both were clearly highly exceptional characters: they fitted in on one level, but on another level their behaviour was a daily denial of what doctors up and down the land stand for. So it could be said that Paterson was so off the spectrum of expected, even predictable, behaviour that nothing can be learned from the harm he caused. This would be wrong. Paterson was part of an organisation. It is proper to ask what the organisation knew of his practice, when they knew it and what they did. These are the central questions I sought to address in my review. Here, I will highlight some issues that may be of particular interest.
Working in a team
All surgery involves a team. Nowhere is this more true than in the case of breast cancer. Paterson was not a team player. He was a bully, prone to ignoring his colleagues or belittling their views. He dominated the multidisciplinary team meetings.
The nurses in the team were soon seeing patients who had not had a mastectomy, although the notes indicated otherwise. A mastectomy calls for a flat chest. Patients were being seen who had tissue of varying amounts left behind. When they raised the matter, Paterson told them that the tissue was “just fatty tissue” and would leave them with a cleavage (although not all of the tissue left behind fitted this description). Given his personality and the sense of authority he exuded, they accepted or at least went along with this reassurance.
The radiologists in the team also expressed concerns. They were effectively told they were not surgeons and therefore not qualified to comment. One radiologist was so concerned that he conducted an audit of 100 patients during 2003, which showed that some patients were being recalled for what were termed “shaves after mastectomy” or were receiving “partial mastectomies”. Despairing of what to do and concerned for their patients, the radiologists on occasions referred women back for further surgery. Also, on occasions, they decided to expose the women to radiotherapy, aimed at the tissue left behind, when ordinarily such therapy would not have been called for.
The team, the central element in the care of the patients, was not working. This was made known to the senior executives of the NHS Trust. Efforts to remedy its failings were largely unsuccessful. Paterson remained effectively in charge and aloof. A number of opportunities to address this fundamental issue were not taken. The executive allowed the concept of teamwork to be undermined. The reasons were not clear: they may include not wanting to stand up to Paterson, preferring his views as a well-known surgeon to those of others, or satisfaction that targets were being met. Whatever the reasons, when teams do not work and corrective action is not taken patients are harmed.
Knowing what to do
The nurses and fellow doctors were concerned. The nurses turned to Paterson and accepted, for a long time, his reassurances. The nurses should have pressed their concern, but the NHS Trust did not have any policy or procedures to which they could turn. The only procedure that the NHS Trust ultimately had recourse to was through HR, which, being categorised as ‘confidential’, excluded the nurses. If they felt they were getting nowhere in the NHS Trust, they should have raised their concerns with the relevant regulators.
That they did not is a comment on the culture of the hospital – a culture that is not unusual. Staff are loath to challenge the powerful. Senior executives rarely create an environment where staff feel safe to do so. And, when they are prepared to do so, they do not seem to be aware of the openings available to them and, as important, their duty to avail themselves of them.
The radiologists did not seem to know where to turn when their initial expressions of concern were effectively rebuffed. Importantly, they were employed by a different NHS Trust and so felt somewhat semidetached from Paterson’s NHS Trust. They felt ignored by the NHS Trust’s executive. As with the nurses, they could have engaged the regulators, the CQC and the GMC. They did not.
Their training and the culture they found themselves part of meant they did not contemplate such action. They saw their duty as being to do their best for their patients. However, they interpreted this duty too narrowly. Doing the best for the patient meant doing something about Paterson.
Doctors need to learn from this, but regulators need also to learn that they must be much more visible and accessible. They must make it clear that they are there to protect patients and should be engaged when concerns arise and those inside the NHS Trust do nothing. If they do not, patients may be harmed.
Training for leaders
Paterson was able to continue to put patients in harm’s way for years for a variety of reasons. One of the principal reasons was that colleagues in senior roles were not prepared to stand up to him. Members of staff who could have done something took the path of least resistance. They worked around him. This, of course, was fine by him because it left him in his own bubble, free to do as he wished.
The lesson that comes through strongly is that those who find themselves in positions of leadership must be prepared for the role. They must receive appropriate training. It is unrealistic to expect someone without such preparation to stand up to someone with Paterson’s personality. And so it proved for years. And patients were harmed.
What about consent?
Paterson told women on whom he was going to operate that he would be performing a mastectomy. In many cases (it is still unclear how many), he did not carry out a mastectomy. Instead, he left tissue behind – in some cases because he had decided to perform what became known as a CSM; in other cases because his surgery was ‘slipshod’ or ‘rushed’3. CSM was a completely unknown procedure. It was not recognised as a surgical response to breast cancer. Yet Paterson performed it for years. Eventually, in 2007, he was required by the NHS Trust to stop doing it (he still did it on 42 further occasions). It did not occur to the NHS Trust’s senior executives, even when they were aware of Paterson’s practice, to put two and two together and realise that there was a fundamental issue of consent at stake. Women had agreed to a mastectomy. When they had not had one, their agreement, or consent, had been acquired through false pretences. The information that they had been given, that they would be having a mastectomy, was false. They had not given valid consent.
In legal and ethical terms, this lies at the heart of Paterson’s wrongdoing: his violation of women’s right to be informed and to choose what should happen to their bodies. Apart from a reference to the issue of consent made by an outside expert brought in to review Paterson’s practice in 2008, the centrality of the failure to obtain proper consent was only recognised in 2011 by the new senior team.
The lesson is an unhappy one. Consent is increasingly trivialised. It is seen as an administrative chore. ‘Consenting’ a patient is a common expression, despite its illiteracy and complete disregard for the fact that it is the patient who consents and the doctor who seeks permission. Until there is a proper understanding of the role and place of consent in medical practice, the opportunities for abuse will continue to exist. And patients will be harmed – if not by the procedure, then by the failure to obtain their consent.
Notes and references
1I refer to women throughout, although there were a handful of male patients
2Kennedy Review, Heart of England NHS Foundation Trust
3As described by an independent expert brought in by the Trust in 2008, see Kennedy Review, p81–82
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