Doctor Alexandra Mullock is a Senior Lecturer in Medical Law at The University of Manchester’s School of Law, and writes for us today on the legal background and future implications of Ian Paterson’s recent convictions for unnecessary and damaging surgeries.

• The Paterson case has significant implications for the principle that non-fatal surgical violations are exempt from criminal law (the ‘medical exception’)
• The General Medical Council’s registration and investigation procedures should be examined in the light of the Paterson case to ensure they are sufficiently robust
• Strong, ethical leadership and consistent commitment to transparency are essential to maintaining patient safety and public confidence

Following Ian Paterson’s multiple convictions for carrying out mutilating surgery, a key concern is why he was not prevented from harming so many patients. Paterson was convicted of seventeen counts of wounding with intent to cause grievous bodily harm (GBH) and three counts of unlawful wounding (respectively sections 18 and 20 of the Offences Against the Person Act 1861) against nine women and one man. These ten victims, however, have been reported to represent a tiny proportion of all Paterson’s alleged victims; a group that might amount to hundreds from his many years of practice in the NHS and private sector.

The “obscure motives” that compelled Paterson may forever remain a mystery but it is interesting that the charges against him relate only to patients he treated in his private practice. This enabled the prosecution to create a narrative that suggested that financial gain could have been the motivating factor for Paterson’s crimes. Without greed as a possible motive, his actions are baffling and the prosecution’s case, in alleging that surgery which Paterson argued was performed in the patient’s best interests actually constituted GBH or unlawful wounding, would be more challenging because of the medical context of the allegations.

Importantly, the medical exception to the criminal law; namely the principle that consensual surgery carried out by qualified professionals is legitimate (“proper medical treatment”), means that there is an assumption that harm caused by surgery is not a matter for the criminal law because it is a risk that we accept in order to enjoy the benefits of surgical medicine. (See: https://www.routledge.com/The-Legitimacy-of-Medical-Treatment-What-Role-for-the-Medical-Exception/Fovargue-Mullock/p/book/9781138819634 )

Even when surgeons make terribly negligent mistakes – unless the patient dies in which case Gross Negligence Manslaughter might be relevant – English law does not regard harmful medical treatment as a criminal matter. Paterson’s conviction is a landmark case, which might have implications for the prevailing assumption that non-fatal surgical violations are not a criminal matter.

All surgeons intentionally wound their patients but they do so in the patient’s best interests. The offences that Paterson has been convicted of are generally not applied to surgery because although the surgeon does technically satisfy the requirements of the less serious offence by intentionally wounding the patient, she is not acting maliciously but rather for the patient’s benefit. The additional requirement; that the patient consents to the procedure after being informed about the risks and benefits in reasonably accurate and honest terms, is a necessary (but not sufficient) condition to legitimise the surgery.

False consent and criminal assault – the legal landscape

Treatment without consent is a criminal assault. Paterson’s victims signed consent forms, however, the consent was based on inaccurate information. The prosecution’s case was that the inaccurate information that Paterson conveyed in order to gain consent meant that the patients had not given real consent. For example, some victims were led to believe they had cancer when they did not.

Paterson’s defence was that he believed the information to be reasonably accurate and appropriate (even if it was actually negligent), thus making the consent sufficient to avoid criminal consequences. The facts pointed towards multiple situations in which Paterson knew very well that his advice was false. Consequently, his actions in obtaining false consent and performing the surgery that inflicted unlawful wounds and GBH could not be regarded as legitimate within the medical exception.

Criminal doctors are highly newsworthy and some media reports have likened Paterson to Harold Shipman. While multiple convictions for intentional GBH might suggest a degree of psychopathy, psychotic surgeons are exceptionally rare and so from a legal perspective the three convictions for the lesser offence (unlawful wounding) are potentially more interesting. In the light of this verdict, patients who have suffered serious medical harm might feel that the civil remedy available (compensation if negligence can be proved) fails to hold errant doctors to account, or prevent them from harming others.

Insurance often shields defendants from the financial consequences of negligence and, unless the General Medical Council (GMC) takes decisive action, doctors will usually continue to practice. The role of the GMC in ensuring that all doctors registered to practice are fit to do so is also open to criticism over the robustness of investigations, if indeed an investigation is instigated following a complaint. In 2015, for example, there were 9,418 complaints (enquiries) made to the GMC, of which 2,306 were investigated.

There may be sound reasons why so many complaints are not investigated but equally this approach should be scrutinised to ensure that the GMC are not missing opportunities to safeguard patients.

Paterson and patient safety – lessons to be learned

In Paterson’s case, there was a systematic failure to prevent him from harming patients over many years preceding the criminal investigations. Sir Ian Kennedy’s Review of the Heart of England NHS Trust’s response to concerns about Paterson’s surgical practice revealed that a hierarchical and oppressive culture made it difficult for colleagues to raise concerns about senior colleagues. Moreover, the managerial approach prioritised meeting targets (which Paterson was good at) over patient safety and patient-centred consent.  They also misused principles of confidentiality to perpetuate secrecy and conceal vital information that should have been used to prevent Paterson’s misdeeds.

Although Paterson’s crimes are indeed unusual, hospital environments in which harmful medical practices are permitted to flourish in spite of concerns raised are sadly not so unusual. Similar issues regarding secrecy, failure to report concerns and poor leadership were identified in the Francis Inquiry 2013 following the Mid-Staffordshire Hospital scandal, in which extreme neglect led to many avoidable deaths.

Since the Francis Inquiry, a statutory Duty of Candour has been introduced (Health and Social Care Act 2008 (Regulated activities) Regulations 2014). This places a general duty upon care organisations to act in an “open and transparent way” and to be honest with patients when mistakes are made. It may be too soon to assess the real impact of the duty of candour but the changes needed to achieve greater transparency depend on an environment where healthcare professionals feel supported by their organisation in the event that they have made a mistake or wish to raise a concern about a colleague.

Paterson’s crimes are an anomaly, but the reasons he was not stopped sooner are the same or similar to the reasons that many patients are failed in other less dramatic ways. Improving patient safety thus depends on strong and ethical leadership able to foster a supportive and transparent environment and to resist the temptation of concealing concerns that might reflect badly on the organisation.