Consent, “cosmetic” procedures and crime: The case of Ian Paterson
By Melanie Latham and Jean McHale
On 28th April 2017 breast surgeon Ian Paterson was charged and convicted of 17 counts of wounding with intent under Offences Against the Person Act 1861 in relation to 9 women and one man (Breast surgeon Ian Paterson found guilty of 17 counts of wounding with intent after 'unnecessary operations'). He was in addition convicted in relation to three further wounding charges. Evidence given during his trial was to the effect that he had either exaggerated or invented cancer risks which led to patients deciding to consent to breast surgery.
From 2003 Paterson’s colleagues had raised concerns regarding his practice. He undertook a practice of cleavage saving mastectomies which had involved leaving some breast tissue with consequent risks of reoccurrence of secondary cancer. During the trial evidence was given by patients that they had been misled into believing that they were seriously ill and as a consequence were able to agree to surgery (http://www.bbc.co.uk/news/uk-england-39748246.) There were some 4 investigations and consequent reports before he was suspended in October 2012 by the General Medical Council. There have been already hundreds of civil claims and the NHS to date has paid more than £17 million in damages and legal costs. Further claims relate to Paterson’s private patients. A report led by Professor Sir Ian Kennedy found that he was “not a team player” and allegations were made that he was aggressive, arrogant and a bully (Solihull Hospital Kennedy Breast Care Review of the Response of Heart of England NHSFoundation Trust to Concerns about Mr Ian Paterson’s Surgical Practice; Lessonsto be Learned; and Recommendations (2013)). The report was very highly critical not only of Paterson but also of the way in which complaints and concerns which were raised were dealt with It is a story of women faced with a life threatening disease who have been harmed.
“It is a story of clinicians at their wits’ ends trying for years to get the Trust to address what was going on. It is a story of clinicians going along with what they knew to be poor performance. It is a story of weak and indecisive leadership from senior managers. It is a story of secrecy and containment. It is a story of a Board which did not carry out its responsibilities. It is a story of a surgeon who chose on occasions to operate on women in a way unrecognised by his peers and thereby exposed them to harm.” (Kennedy Report, para 2)
“He is described as charismatic and charming and was much-liked by his patients. He was not, however, a team-player in an area of care which is absolutely dependent on clinicians working efficiently and effectively as a team" (Kennedy Report, para 7).
The Kennedy Report also identified the fundamental problems with the consent processes and management responses to raised concerns.
“on occasions, a variation of a mastectomy was being carried out; what became known later as a “cleavage sparing mastectomy”. This was not a recognised procedure. Women did not consent to it in any properly informed way. Whenever Mr Paterson intentionally chose to leave behind tissue, while saying that he was carrying out a mastectomy, he was in breach of his obligation to obtain consent from his patient. Had this lack of consent been identified and dealt with properly by senior managers in 2003 or earlier, as it should have been, events would probably have taken a different course. But, despite being referred to by concerned clinicians in 2003 and again by an external expert in 2007, the question of lack of consent was not formally raised by senior managers until mid- 2011.” (Kennedy Report, para 10)
At trial the court heard that motives for his actions were “obscure” but it may have included “a desire to earn money”. There was failure to share information about his behaviour between NHS and private hospitals where he worked. (“NHS covered up breast surgeon with 'God complex' who needlessly butchered hundreds of women” )
On 4th May 2017 Jeremy Hunt, the Secretary of State for Health announced that if the Government were returned to office it would undertake a further inquiry into Ian Paterson. This case raises a number of important issues. First, there are major questions of employment practices as it appears from reports that Paterson was employed while major concerns had already been raised in relation to his practice. Secondly, the problems of policing the consent process. Patients still rely heavily upon clinical advice in relation to procedures- but what if, as here, the advice itself was fundamentally flawed. Fundamentally however this case also illustrates the problems with the effectiveness of the regulation of clinical procedures in general and those undertaken for a cosmetic effect and for profit in particular. A rogue clinician acting both within the NHS and in private practice was able to go ahead for years without action being taken. From the late 1990’s professional practice ethical guidelines concerning consent to treatment had radically evolved and yet as illustrated here respect for individual autonomy and dignity in the decision making process was fundamentally undermined and criminal offences were committed. What ultimately the case graphically illustrates is the ease by which vulnerable people can be manipulated in making decisions about their health and the dangers of reliance on one clinician alone in the consent process.
Melanie Latham is Reader in Law at Manchester Metropolitan University, and Jean McHale is Professor of Healthcare Law at University of Birmingham