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NHS or private healthcare? Medical negligence lawyers examine the issue following BBC Panorama investigation

Specialist medical negligence Solicitors Samuel Hill and Catherine Slattery at Irwin Mitchell have assisted BBC Panorama with its investigation into patent safety at Spire Healthcare.

In the past we’ve brought claims against many medical professionals operating in the private sector, such as private doctors, private surgeons, and private dentists. We’ve also regularly brought claims on behalf of large groups of patients all of whom have been affected by the same doctor.  

For example, we have represented more than 25 former patients of Leeds-based orthopaedic surgeon Michael Walsh and dozens of former patients of Birmingham-based breast surgeon Ian Paterson, both of which were employed by Spire. 

What did the Panorama investigation find?

Panorama’s investigation found that independent sector hospitals are increasingly being used to reduce NHS waiting times, with more than six million people in England and Wales alone waiting for an NHS operation. 

Private hospitals can offer a quick and safe solution to patients, however, many patients aren't aware of the increased risks if something goes wrong[CS2] . It's important that patients are informed of the pros and cons of private care so they can make the most informed decision about what’s best for them.

Spire healthcare

The major private healthcare provider Spire, which bought Bupa in 2007 has 39 hospitals across the UK, and since 2021 has treated more than 500,000 NHS patients. Whilst private hospitals are set up for low-risk patients and procedures, two-years-ago Spire told a Parliamentary inquiry into NHS waiting lists that it wanted to take on more complex cases such as cardiac and neurosurgery. 

But if private providers take on more NHS patients is enough being done to ensure patients are safe?

CQC's concerns over private hospitals safety

The Care Quality Commission (CQC) has previously raised serious safety concerns about private hospital healthcare. The chief inspector, Professor Ted Baker, in the CQC report entitled The State of Care In Independent Acute Hospitals” raised concerns about "the safety and leadership of some services, often as a result of a lack of safety checks and poor monitoring of risks. Too often, safety was viewed as the responsibility of individual clinicians, rather than a corporate responsibility supported by formal governance processes. 

"In particular, we found that monitoring of medical governance such as scope of practice of individual consultants was not consistently robust. Such a failure of effective governance was brought into sharp focus with the recent case of the surgeon Ian Paterson. We also found that the sector also needs to do more in monitoring and reporting clinical outcomes.” 

What our medical negligence lawyers see 

From what we see day to day, there remains significant concerns about clinical/safety failures. There is also a failure by private hospitals to identify the same complications or poor outcomes for patients by a particular surgeon until it is far too late. 

For example, the complications suffered by Mr Walsh’s patients were only identified when another surgeon reviewed the patients. 

If something goes wrong during treatment, most NHS hospitals have Intensive Care Units whereas most private hospitals don’t, instead relying on ambulance transfers to local NHS facilities. 

David Rowland, at the Centre for Health and The Public Interest previously explained that “moving a seriously ill person is a patient safety risk. It should be avoided if it can be. We have all seen significant delays to ambulance waiting times…Relying on that type service in order to ensure a patient is effectively treated after something has gone wrong in a private hospital is a major risk.”

Lack of intensive care units in private hospitals

Panorama found that patients weren't aware that Spire didn't have intensive care units. Following Panorama’s questions to Spire it has now updated its hospital websites to inform patients that they may need transfer to NHS hospitals for intensive care if their condition deteriorates. 

The difference is that if a patient deteriorates in an NHS hospital, there is the possibility of being transferred to another unit for closer observation and treatment. 

Over the last two years, Spire Healthcare has received three Prevention of Future Death warnings from coroners where action needs to be taken to prevent deaths happening again.

Since 2009, the NHS has said its doctors shouldn't work on average more than 48 hours a week. In some private hospitals, including Spire, resident medical officers (“RMO”) are contracted to work up to 168 hours per week. RMOs are akin to junior doctors in the NHS, however, in private hospitals may sometimes be the only doctor on duty overnight. 

Panorama has obtained the testimony of 28 RMOs who worked at Spire until 2022. Almost all of them expressed concern about their workload and the potential safety implications for patients.

There are also fears allowing private providers to take on more NHS work could lead to a widening of health inequality and a two-tier system with people who are healthier being eligible to receive care quickly in private hospitals whereas people who are sicker will have to wait longer to be seen in NHS hospitals. 

Sally Gainsbury from Nuffield Trust says that “around a third of patients will never be eligible to be treated in the private sector because they have underlying health conditions.” 

Insurance concerns 

Whilst not covered in the BBC Panorama investigation, we believe that it's also important to highlight that there's no guarantee that a private surgeon will have sufficient insurance, indemnity or personal funds to compensate a patient if something goes wrong. If a patient is harmed as an NHS patient, they're immediately indemnified by NHS Resolution. 

Irwin Mitchell frequently supports clients who have received a private healthcare and when something has gone wrong. Find out more about our expertise in this are at our dedicated private healthcare claims section.

Panorama’s investigation NHS Patients Going Private: What Are the Risks? is available to watch online. More can also be found on the BBC News website.