Lively reporting and critical analysis of today's health service and public health issues

Sheffield: Wednesday, 26 March 2003

A very messy business

Before the Care Standards Act, private healthcare was largely unregulated by the state – despite its 'market' being ill and vulnerable people. But, Richard Ennals asks, will the Act improve patients' rights of redress if medical procedures go wrong?

The new Care Standards Act is meant to enforce standards in private hospitals, residential and nursing homes. It came about because of pressure on the government from the families of relatives who had died or been left disabled, brain damaged or in severe pain as a result of inadequate care in private or voluntary healthcare facilities.

Action for the Proper Regulation of Private Hospitals (APROP) was set up in 1998 by a group of such families and, since its inception, has been contacted by hundreds of other families throughout the country. Adverse media coverage of mistakes or malpractice in private care has added to the pressure on the government to legislate to protect patients.

While the Care Standards Act provides a broad framework for improvements – there are seven other individual areas of independent healthcare to be regulated in addition to private acute hospitals – the detail of the Act's rules and regulations has still to be worked out. It is envisaged that these will have been developed by April 2001, after a consultation period, and will come into effect the following year.

APROP is concerned that the new legislation should genuinely protect private healthcare patients, whose number will now be swollen by NHS patients treated in private hospitals under the government's new 'concordat' with the independent sector. It also wants to see a radical reduction in the types of iatrogenic injuries which have been characteristic of private hospital care under the current legislation – the Registered Homes Act 1984.

INSPECTIONS

In its scope, the Registered Homes Act appears to apply to nursing homes primarily and treats private hospitals as nursing homes which carry out operations. There is little or no scrutiny of the quality of clinical care, the most important aspect from the patient's point of view. With much more complex and potentially hazardous surgery being carried out than in 1984, this is a significant failing. Instead, under the Act, health authority inspectors, who are sometimes not even clinically qualified, are required for the most part to assess only the adequacy of the secondary, largely non-clinical, 'hotel' aspects of care.

The quality of these twice-yearly inspections is also open to question. Among other things, the Royal College of Nursing found, in its 1994 report into private hospitals and nursing homes (An Inspector Calls?), that inspection units were not always well-staffed, that some inspectors needed better training and that in some areas both inspections were announced beforehand, in breach of the legislation.

A quarter of all health authorities surveyed carried out inspections with only one officer. The RCN said this posed a risk of inspectors 'seeing the premises in a good light because of familiarity or individual bias' and 'being intimidated by less co-operative owners and staff'. It also highlighted a possible conflict of interest if a health authority were at the same time contracting with the private hospital to treat NHS patients.

Private hospitals often imply in their defence that accreditation by King's Fund (now the Health Quality Service) or British Standards audits guarantees high-quality clinical care. In fact these are largely organisational rather than clinical audits. APROP's experience is that some of the most serious incidents have occurred in hospitals that have received high ratings from these audits.

The problems specific to clinical care in private hospitals must be addressed by the new legislation. These include:

• The patient's consultant, with whom the patient contracts for their care, divides their time between NHS and private commitments and is not always on site. Should the patient have complications when their consultant is absent, especially at night-times and at weekends, there may not be the expertise to cope with them. There also appears to be little or no scrutiny of poor performance by hospitals' medical advisory committees, as the Rodney Ledward and Richard Neale cases would indicate.
• Consultants' hours remain largely unmonitored, unlike those of airline pilots or HGV drivers, and fatigue may lead to misjudgements in surgery or diagnosis. Problems have also been caused by consultants leaving for other commitments and allowing operations to be completed by insufficiently experienced junior surgical staff. Difficulties have also arisen where consultants have taken their private patient's clinical notes or have not left adequate instructions to resident staff for their patient's care.
• Unexpected complications can go unnoticed behind the closed door of a single room and a patient in severe distress may not be able to operate an emergency call button. A number of probably avoidable deaths have occurred because patients were left unattended for long periods of time.
• The resident medical officer in private hospitals is often a junior doctor, working alone, and left in charge of a diverse patient population when consultants are absent. They may not have the experience or expertise to identify and cope with specific complications (if they are spotted in time).
• Similarly nursing staff, a number of whom may be agency staff, may not have the appropriate specialist knowledge to deal with complications. By contrast, in a large NHS hospital, patients with specific conditions and illnesses will often be treated in specialist wards where medical and nursing staff have had extra training in that condition and will be working in teams.
• APROP has evidence that major surgery is sometimes carried out without a safe complement of surgical staff. Patients may be at risk if a case is particularly difficult.
• A private hospital may not always have the necessary range of facilities or equipment if there are serious complications, so that the patient has to be transferred to the nearest NHS hospital, by which time his or her condition may have deteriorated. While some private hospitals have ICUs, these are mainly for postoperative supervision following major surgery and may, in any case, be inadequately staffed. While some RMOs may have had extra training in life-saving, this is insufficient. The Royal College of Anaesthetists recommends that in all hospitals which carry out major surgery, patients who have arrested, for example, should be treated by a proper crash team, similar to that of a large NHS hospital, with an anaesthetist on hand.
• None of these potential risk factors are mentioned in private hospital advertising. The quality of clinical care, for example, tends to be presented in the form of vague and unprovable self-eulogies, such as: 'We believe the care we offer is second to none', or 'We are committed to the highest quality care'. Private medical insurers' advertisements, by contrast, tend to exploit people's fear of suffering illness or pain for long periods of time by emphasising the length of NHS waiting lists.1 More useful information, which could help potential customers make an informed choice, such as the number of untoward incidents in a particular hospital, is unavailable as no statistics are collated or at least not publicly.
• Most of these deficiencies were listed by the Commons health select committee in the report of its inquiry and it is hard to understand how those who drafted the Registered Homes Act in 1984 could have managed to overlook such obvious problems.2

In theory, private hospitals' medical advisory committees, composed of admitting consultants, resident clinical staff and managers, should also have addressed these issues, but do not appear to have done so.

COMPLAINTS

Following injury or death, patients or bereaved relatives face further problems. Unlike the NHS, there is no statutory complaints procedure, only a voluntary code of practice issued by the Independent Healthcare Association (IHA).

The experience of almost all APROP members is that they were not even advised of the code's existence. Where there are responses to complaints, these rarely admit to or apologise for anything, even when subsequent investigations confirm that serious or even fatal mistakes were made. This is contrary to guidelines for good practice set out both in the IHA code and in those of the consultants' defence organisations, the Medical Defence Union and the Medical Protection Society.

In addition private patients, unlike NHS patients, have no Patient's Charter, no ombudsman, and no community health council to help them complain, while health insurers, despite promoting private hospitals, rarely support their customers when things go wrong. A few relatives have had some limited success and vindication of their complaints via investigation by the registering health authority, but this is an avenue often entered into with the greatest reluctance by authorities and is thus poorly publicised.

Most complainants have been left with the option of trying to pursue their grievances via litigation, a course of action that, on top of an already distressing situation, is arduous, lengthy, extremely expensive and rarely successful.

Medical negligence is heavily weighted in favour of the defendant. Problems can be caused by 'missing' medical records and the frequently great difficulty litigants have in finding an expert prepared to state that a fellow doctor has been negligent. To add to all this, where an untoward incident is brought about by failures on the parts of both the consultant and hospital staff, complainants may have to deal with two sets of defendants, insurers and solicitors.

Importantly, however, litigation deals for the most part with compensation and rarely offers a truthful explanation, apology, admission of accountability or indication of improvements, that almost all complainants are primarily seeking. The impression gained from many APROP members is that hospitals and consultants are primarily concerned with protecting their reputations, and their respective insurers with guarding their reserves, and that every opportunity afforded by the legal system will be exploited to the full to defeat any claim, irrespective of what may have happened to a patient.

The role of hospital insurers and defence organisations following untoward incidents needs to be addressed. Proper investigation of complaints can be compromised if insurers, concerned with not admitting liability, prevent acknowledgement of error or apology. Important improvements in care may also be impeded.

APROP would like to see private hospital managers be held accountable for their consultants' errors. Staff also need some avenue for whistleblowing, to voice concerns about untoward incidents or bad practice. To date no Stephen Bolsin has spoken out about standards in the private sector; this has always been done by victims.

The Care Standards Act introduces a complaints procedure with the scope for apologies and compensation where appropriate, but it is essential that it should be a statutory procedure mirroring that of the NHS with the involvement of independent parties – perhaps officers of the proposed National Care Standards Commission – at an early stage. Individual private hospitals having their own complaints procedures has been shown to be inadequate.

If independent medical experts are to be involved, there should be some attempt to ensure they will be truly impartial. Patients' confidence in the fairness of any complaints procedure would be further enhanced if tampering with medical records or withholding key information were made a specific offence.

STAFFING

But before all this, and most importantly of all, the new legislation must ensure that private hospitals are safely and adequately staffed. Almost without exception, all of the tragedies of which APROP is aware have been due to private hospitals being inadequately staffed.

If patients are to receive major surgery, the independent sector must be made to provide hospitals which mirror the facilities and staffing – in the form of proper healthcare 'teams' – of good NHS hospitals. Commission inspectors, hopefully better trained, with greater powers and with more concern for patient safety than current health authority inspectors, must be able to ensure this.

Alternatively, private hospitals could be licensed to carry out a restricted number of procedures in areas where they have demonstrated safety and adequacy in staffing, back-up and facilities.

REGULATIONS

Much will depend on the detail of the rules and regulations of the Care Standards Act. Already APROP has concerns about the composition of the consultation group set up by ministers and the Department of Health to advise on the drafting of these regulations: hospital groups and medical bodies feature largely, some of whose employees and members were responsible for the series of tragedies which led to the new legislation coming about in the first place.

Action for Victims of Medical Accidents (AVMA), a patients' organisation with nearly 20 years' experience in all the areas of private healthcare to be regulated, not just private hospitals, is omitted. Baroness Nicholson raised AVMA's absence on the consultation group during the final debate of the Care Standards Bill in the House of Lords.3 AVMA's presence might also help lessen the risk of the private sector unduly influencing the drafting of the new legislation.

As healthcare seems set to become increasingly commercialised, judging by the World Trade Organisation's General Agreement on Trade in Services, HCA's continuing expansion into the private acute healthcare 'market' (fraud investigations notwithstanding), the government's 'concordat' with the IHA and now the Institute for Public Policy Research's suggestion that PFI hospitals might consider privatising core clinical services, the dangers of unregulated private healthcare must be continually emphasised.

Private hospitals deal with people's most precious commodities, their health and their life, and users are not empowered consumers but are often ill and vulnerable. It is the one area of commercial activity where the tightest possible regulation by the state is required. APROP's hundreds of cases of suffering, injury and death sadly attest to the effects of lax regulation in commercial healthcare.

In the meantime, and until such time as new legislation comes into effect that can be shown to genuinely protect patients, APROP will continue to advise those who want to go private to give private hospitals a very wide berth and to use the safer alternative: the NHS-run private wings of NHS hospitals, where they will find better staffing, skill-mix, facilities and back-up for emergencies – and where all profits go to the NHS.

Notes

1. For example, a PPP flyer: 'Few things can be worse than having an illness, injury or medical condition and not being able to receive the treatment you need straight away. If the wait is long, your health may deteriorate and your life may be affected in many ways, including having to take extended time off work. With PPP healthcare plans, you have access to private in-patient treatment of the highest quality'. October 2000.

2. House of Commons Health Select Committee. The Regulation of Private and Other Independent Healthcare, paragraph 41. July 1999.

3. House of Lords Hansard. Baroness Nicholson: 'The consultation group… is dominated by private hospital groups and medical bodies, many of which are responsible for the series of tragedies which led to the Bill coming about in the first place. I remind the Minister that there is no representation from genuine patients' and victims' groups… AVMA could and should be invited to form part of the consultation group.' 18 July 2000.

Richard Ennals is a co-founder of APROP. He contributed two chapters to the Medical Accidents Handbook (Wiley, 1998) which include advice on how to complain about treatment in private hospitals.