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Joachim Stanley considers the issues arising when NHS treatment is outsourced to private providers, including ensuring an acceptable standard of care and establishing liability if the treatment goes wrong.
Outsourcing in the NHS is an ever-growing trend. The Health and Social Care Information Centre recently advised that some 35,329 cataract procedures alone were performed by private providers for the NHS over 2012 – 2013. In the same year, private providers performed more than 20% of all knee operations carried out within the NHS, and one in six hip operations.
Whilst outsourcing can be beneficial in terms of reducing waiting times for treatment, it could be a cause for concern if proper procedures – including safety procedures – are not followed, and reported experiences have suggested that this may not always be the case.
At Musgrove Park Hospital in Taunton, a private contractor assisted the Trust in dealing with a surgical backlog in 2014, with many patients reporting substandard results: a large number of patients were left with impaired vision and in pain, having undergone what should have been routine cataract procedures. As one may expect in a case series involving cataracts (a condition that becomes more prevalent with age), the patients in the case series were predominantly elderly. The operations were carried out in a ‘mobile theatre unit’ in the hospital’s car park, under the auspices of a private services provider called Vanguard Healthcare. The contract was terminated by the hospital some four days after 30 patients advised that they had suffered complications. It emerged that more than half of the 60 patients treated by Vanguard Healthcare suffered a range of complications, up to and including loss of sight – a devastating outcome.
Routine surgery is never entirely problem-free, and every surgical procedure carries risks. However, this would be an extraordinarily high number of complications (>50%) even in complex surgical cases, which this was not. In point of fact, the NHS itself has reported that the incidence of problems in cataract surgery is low. Moreover, the fact that a range of complications occurred, rather than the recurrence of a particular issue, raises additional concerns as to competence. Given the sheer number of complications, it is not surprising that the hospital opted to end the operation series. The fact that they went further and actually terminated the contract suggests that they themselves had concerns about the competence of these patients’ management.
Such a high rate of complications in procedures which potentially involve loss of sight is extremely worrying. It is also not clear whether proper consent was obtained from the patients and/or their families: if the surgical team was under-experienced or there were other issues that might have impacted upon the risk levels of the procedures, then they should have been told before making the decision to go ahead. Failure to do so would not be acceptable either from a legal or an ethical perspective.
The anecdotal reports of the families may well shed some light upon these outcomes. The family of one patient reported that the procedure took only 15 minutes, which seems surprisingly brief for a cataracts procedure. The NHS choices website advises that the procedure normally takes 30 – 45 minutes to perform. Assuming that this patient’s family is correct, it would follow that the surgeon took approximately half the length of time normally needed to perform the procedure. There is the further point that if this patient suffered from any pre-operative risks, which would have needed to be addressed, then the timing is even more surprising.
After the publication of a highly critical report into these events, the CEO of Vanguard Healthcare, Ian Gillespie, was reported to have said both that no issues were found with the Vanguard mobile theatre facility, and that there were lessons to be learned (but failed to clarify what these were). This does not inspire confidence that any real effort will be made to learn from past mistakes, or that, if investigated, findings will become public knowledge.
Private companies are not subject to Freedom of Information law in the same way that the NHS itself is. Following the publication of the Kennedy Report into the events at Bristol Royal Infirmary in the 1980s and early 1990s, the NHS has made considerable efforts to achieve greater openness and better data collation. The application of its own scrupulous standards to contractors has been patchy. This should be of real concern: quite apart from the obvious safety issues this raises, an absence of transparency hampers academic excellence, which itself relies upon the publication and dissemination of datasets so that clinicians can assess what treatment works, and why.
A further problem with outsourcing is highlighted by press reportage of the Musgrove Park case series. The hospital’s medical director, Dr Colin Close, was reported by a local paper to have said that – were claims for compensation to be made, “any financial responsibility would rest with us” (i.e. the hospital). The hospital then stated that he was misquoted. This highlights a growing issue with claims involving outsourced NHS work – namely, that it is frequently difficult to determine who should bear a liability for substandard work. As a medical negligence lawyer, this is an issue that I and my colleagues frequently have to consider and advise our clients on when considering pursuing a claim for compensation for negligent treatment.
Private healthcare operators in the NHS are becoming more prevalent. Their involvement frequently raises quite complicated contractual and ethical issues, which need to be determined properly if litigation is to succeed. It is important that if you are affected by these issues, you retain a law firm with relevant expertise and a dedicated team of clinical negligence lawyers and that you seek advice at an early stage.