MEMORANDUM PREPARED FOR THE HEALTH COMMITTEE LAURENCE VICK MICHELMORES SOLICITORS EXETER

Transcription

1 MEMORANDUM PREPARED FOR THE HEALTH COMMITTEE BY LAURENCE VICK MICHELMORES SOLICITORS EXETER INDEPENDENT SECTOR TREATMENT CENTRES 1. This submission is prepared on behalf of Michelmores solicitors, a law firm based in Exeter, Devon with a specialist clinical negligence team as part of the litigation department. My name is Laurence Vick and I am a partner in the firm. I lead Michelmores clinical negligence team, which acts exclusively for claimants pursuing cases arising out of all forms of NHS or private medical treatment. 2. I have a wider interest in aspects of accountability and audit of medical procedures having represented the 300 families belonging to the Bristol Heart Children Action Group as lead solicitor at the Bristol Royal Infirmary Inquiry between 1999 and 2001 and in related litigation. This inquiry looked into the problems affecting the paediatric cardiac unit at the Bristol Royal Infirmary and demanded a sea change in the attitude towards transparency. I am very aware that great strides have been taken within the public sector to achieve new levels of accountability. 1

2 3. More recently I have gained practical experience of the Independent Sector Treatment Centre (ISTC) initiative through our clients clinical negligence claims against NHS Trusts that have commissioned independent sector treatment for their patients. 4. In particular, I have been involved in litigation surrounding the independent sector Diagnostic and Treatment Centre (isdtc) hosted at MoD Royal Hospital, Haslar in Gosport, Hampshire between October 2003 and March An agreement was made under the precursor to the government s ISTC initiative whereby an overseas independent healthcare provider would perform one thousand orthopaedic operations at Haslar for NHS patients in the Frimley Park, Portsmouth and Plymouth Hospital Trust areas. 5. I am motivated to respond to the Committee s invitation with particular regard to the situation at MoD Royal Hospital, Haslar, for three main reasons. First I have been surprised by the number and type of claims that have arisen out of this six-month initiative. Secondly, Hampshire and Isle of Wight Strategic Health Authority were moved to commission an independent investigation ( the SHA Report ) to address concerns over clinical standards raised during the contract after several post-operative complications. Thirdly, I am aware of the coincidence of the decision to award the Haslar contract and the government s announcement of plans to expand the ISTC programme in September In making this submission I am supported by the clients whose cases are being investigated by my firm. 6. I particularly hope that this memorandum is of assistance to the Committee with the following points included in its terms of reference: The main function of ISTCs. 2

3 The role of ISTCs in increasing capacity and choice and stimulating innovation. The contribution of ISTCs to a reduction of waiting times and waiting lists. The adverse effect of the operation of ISTCs on NHS services in their areas. The arrangements made for patient follow-up and management of complications. The accreditation and appointment procedures for ISTC medical staff. The question of whether ISTCs are providing care of the same standard as that provided by the NHS. The changes Government should make to its policy towards ISTCs in the light of experience to date. 7. As far as typical claims are concerned, I feel it may help the Committee to describe the treatment received by one of our clients in an independent treatment centre. Mrs C underwent a procedure to replace her hip at MoD Royal Hospital Haslar in During the operation she suffered a severe diathermy burn to her ankle as a result of the misapplication of surgical equipment. A cauterising wand (used to stem bleeding) had simply been left on her lower leg. 8. To compound her problems, during the treatment for this wound her hip dislocated. The surgeon had failed to use an essential component and did not secure the joint with an adequate amount of surgical cement. He had also been operating for more than 12 hours on the day of Mrs C s operation. The joint could not be repaired immediately due to the threat of cross-contamination from her existing diathermy burn. Mrs C had to wait for five months before the revision procedure could be carried out. 3

4 9. An NHS consultant at Derriford Hospital in Plymouth concluded that her prosthesis had been implanted in a totally substandard and negligent manner. Mrs C underwent a repeat hip operation at the Nuffield Hospital in Exeter funded by the independent sector provider, but without admission of their liability at that stage. 10. The later SHA Report discovered that Mrs C had been operated on by a surgeon whose previous lower-limb experience at the time of his recruitment was not strong. His clinical performance was judged to be a source of concern, by comparison with normal specialist expectations. However, according to the authors of the SHA Report, given the academic position he claimed in his curriculum vitae, he should [have been] able to successfully implant an Exeter hip prosthesis, even if he ha[d] no previous experience of using one. 11. A minimum of five of this surgeon s six hip replacements raised concerns over his surgical technique. He had not used an essential component and these operations will probably fail within five years according to independent analysis. In fact, I know that two of those six hip replacements had already failed by the time the report was published because those two patients are Michelmores clients. 12. Another area of concern highlighted by my cases is the apparent lack of adequate liaison between the independent sector and the NHS over postoperative complications. I return to the case of our client, Mrs C, who was 4

5 particularly aggrieved at the attitude of her local NHS Trust towards her. They suggested that the independent sector treatment provider should deal with her complications and that she should go back to them in Portsmouth. The Trust would accept responsibility neither for her failed hip operation, nor for her continuing care. I feel that this highlights friction between the independent sector and the NHS clinicians who have to deal with such complications. The injuries of patients like Mrs C are potentially reduced to a commercial dispute between NHS Trusts and private healthcare providers. In her case the priority seemed to be apportioning responsibility rather than patient care. 13. Similar sentiments have been expressed to my knowledge by a group of 43 NHS consultant orthopaedic surgeons in the South West wrote to the Daily Telegraph on 13th May 2004, concluding that [t]he whole ISTC initiative appears to be driven to reduce waiting lists, without regard to the quality of surgery and the cost to patients. I would also point out that the SHA Report into the Haslar project notes similar tension between independent sector clinicians and local NHS staff. 14. I do consider that the SHA Report was a missed opportunity to address the wider concerns raised by the Haslar project. I also believe that the report failed to probe far enough into the issues surrounding the provision of outsourced surgical procedures. For example, the Report s authors only considered the records for hip replacement operations of one of the independent surgeons. However, eight out of the ten Haslar cases my firm is investigating concern other orthopaedic procedures performed by different surgeons. 5

6 15. I am anxious that the considerable failings of the Haslar project should not be overlooked once again. It should not be left to lawyers to highlight these concerns. However, those left with serious injuries as a result of these failures have no choice but to go to litigation and consequently I feel bound to convey their feelings to the Committee. 16. The SHA Report did not mention stories in the press that the Haslar consultants employed by the independent sector provider were not registered on the GMC s specialist register. It transpires that they were merely registered as medical practitioners. It has been reported that the provider believed its surgeons to be working as honorary consultants and thus did not require specialist registration. It is my belief that this demonstrates at best a lack of transparency on the part of ISTCs. At worst it has the potential to confuse patients as to the qualifications of the surgeons operating on them. 17. In spite of some of the SHA Report s conclusions, I would nevertheless want to draw the Committee s attention to some of the failings of the Haslar project that the SHA Report did highlight Vetting and recruitment There were poor procedures to recruit doctors, who were described by the overseas provider as their associates, rather than their employees. The provider considered itself to be a mere introduction agency and believed it to be Portsmouth Hospitals NHS 6

7 Trust s responsibility to satisfy itself that the independent sector surgeons were competent. Vetting procedures of the independent surgical team are described as weak and references were not always seen Post-operative audit Although the independent provider s audit procedures are described as of a high quality, they measure surgical outcomes until the patient is discharged rather than over the longer term. There were particular difficulties in follow-up where surgical teams working on short rotation were not available after their stint in the United Kingdom to deal with any post-operative concerns Working practices The SHA Report found that the surgeon who operated on Mrs C had carried out 43 orthopaedic procedures over a twoweek period. The provider s records show that Dr Y had carried out 39 operations. They noted that some of the clinicians worked excessive hours at Haslar. The risk to patients would have been reduced with the presence of a local senior clinical quality controller, as used in an earlier initiative by the same provider. There needed to be a strong and consistent standard of clinical governance understood and followed by all, particularly where working arrangements were unusual by normal UK standards. 7

8 18. Naturally I accept that the Department of Health has an understandable desire to drive down waiting lists and that ISTCs could provide a solution to this problem. However, I am concerned that private providers of surgical procedures, under simultaneous commercial pressure to drive down costs, may be tempted to cut too many corners. I am worried that patient care would suffer if the weak recruitment procedures for doctors and the lack of regulation described in the SHA Report were repeated by future ISTCs. 19. Significant questions have been raised about the clinical standards at Haslar. To a limited extent they have been addressed by the SHA Report, but more fundamental questions remain. Without adequate scrutiny we cannot be certain of the clinical performance of any independent sector diagnostic and treatment centre. As far as Haslar is concerned, I can only conclude that the contract was not properly thought out and too hastily implemented. The fruits of this extraordinary approach were a complete inability to make sensible audit, a failure to integrate care pathways with local clinicians, and the buck well and truly passed to NHS colleagues when things went wrong. 20. Solicitors are obliged by Lord Woolf s medical negligence litigation preaction protocol to investigate alternative means of dispute resolution. I was dismayed to learn that there was no transparent complaint procedure in place during the Haslar project. No thought seems to have been given to a relationship with the standard NHS complaints procedure. There was no alternative route for the patients who had suffered avoidable injury to 8

9 express their concerns, and their understandable desire for compensation, except costly civil litigation. 21. It may well be that most procedures are successful. However the nature of some procedures is such that some problems only arise in the longer term, perhaps once the ISTC initiative has been completed. To put this in a more concrete way, in the case of the Haslar project, until the five out of six hips that the SHA Report predicted to fail do in fact fail we simply cannot assess whether the procedures were successful. Recommendations 22. As a litigation lawyer, as opposed to a clinical manager, I hesitate to make sweeping recommendations in this context. However, from my practical experience of the failings of one such initiative I feel that it would be helpful to focus attention on a number of issues for any future ISTC initiatives, namely: The monitoring of surgical outcomes The monitoring of surgical performance The question of adequate safeguards to vet curricula vitae of independent sector clinicians, particularly when overseas teams are employed. Parity of tangible qualification between the independent sector and the NHS and between differing national standards must be ensured. The question of transparent selection procedures 9

10 The involvement of professional organisations such as the General Medical Council in registration and appraisal of independent sector clinicians. The question of adequate liaison with local NHS practitioners both before and after independent sector treatment. The question of any, or any adequate, complaints procedures or other fora to voice patients concerns and queries. The question of transparent statistical disclosure of the results of ISTC initiatives. 23. I sincerely hope that my input will prove to of some assistance to the Committee. I am moved to ensure that the lessons learnt from Bristol Royal Infirmary scandal are not forgotten and that the resulting openness and transparency is not occluded by an additional tier of healthcare delivery in the independent sector. It would be to our great discredit if the strides that the Bristol families fought so very hard for could be so quickly forgotten in the laudable, yet single-minded, move to drive down waiting lists in the NHS. 24. I confirm that I would be happy to answer any questions about this memorandum should the Committee so wish. 10