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Medical Negligence Claims – Private Medicine Issues

February 12 2007

Medical Negligence Claims – Private Medicine Issues

The government has been aware of the need to ensure regulation of the private health sector, akin to the NHS regime of regulation, since the late 1990s. At last in December 2005 the Healthcare Commission announced that it is putting steps in place to reach a level playing field between the private and public sectors by 2008. The Healthcare Commission’s goal is:

….to phase in change at a manageable pace (moving) towards truly equivalent standards and assessments by 2008.

The fact that it has taken this long to get to a position of equivalence between the public and private sectors is, on one level, astonishing. Without formal inspections and systematic regulation, there has been no formal mechanism by which a consistent standard of care could be maintained. A history of tragic cases, such as Laura Touche, the mother who died at the Portland Hospital following a caesarean section, may be recalled. In 2002 a coroner’s jury returned a verdict of death by natural causes contributed to by neglect. The inquest found that the catastrophic error in Ms Touche’s case had been the midwife’s failure to carry out routine, but vital, post-operative monitoring. Although hospital protocol recommended checks every 15 minutes, the patient was not checked for some two and a half hours, an omission that ultimately led to her fatal brain haemorrhage and death.

Sadly, Laura Touche’s case is just one of the better-known examples of instances in private hospitals in recent years where a clear breach of duty, which may have been avoided by a more rigorous system of inspection, has had tragic consequences. Stories of inadequate staffing, misleading adverts, and consultations with non-medically qualified ‘consultants’ in plastic surgery have provided numerous examples of concerning practices in private hospitals that may well have been eliminated with more scrupulous checks.

The very inception in 2004 of the Healthcare Commission, a body created by the Health and Social Care (Community Health and Standards) Act 2003, has been an important stage in the aligning of inspection of the public and private sectors. The work of several bodies has been subsumed into the remit of the Healthcare Commission. It has replaced the work of the Commission for Health Improvement and taken over the private and voluntary healthcare functions of the National Care Standards Commission and those elements of the Audit Commission’s work that relate to efficiency, effectiveness and economy of healthcare.

With a wide brief-to promote and drive improvement in the quality of healthcare and public health – and a wide range of responsibilities, the Healthcare Commission is well placed to set about taking the final steps to bring inspection and the consequent raising of standards into the private sector. The bodies whose work the Healthcare Commission took over had gone some way to bringing full-scale inspection to the private sector, but it is only now that a formal timescale for ultimate equivalence has been set down.

In its current assessment of NHS hospitals, the Healthcare Commission has primary regard for seven ‘core elements’: safety, clinical and cost-effectiveness, governance, patient focus, accessible and responsive care, the care environment, and amenities and public health.

The specific proposals of the Commission to reach an equivalence between the sectors by 2008 are:

  • to ensure that the Commission’s assessments offer patients and users of services the same assurance on the same core aspects of the healthcare, no matter where they are provided;
  • in partnership with the government, to modernise the regulatory framework of standards and guidance so that the requirements for the quality of care in the independent sector are aligned with those for the NHS;
  • to develop an approach driven by better information and a stronger focus on the outcomes of care; and
  • to establish a new system of regulatory fees that creates incentives for improvement by being proportionate to the actual costs of regulation.

Further, the Commission will seek to ensure that assessments of private hospitals cover the whole year, rather than focusing on a snapshot point in time, and visits will be based on risk assessment, rather than an automatic annual basis. Revisiting of all healthcare providers will take place where necessary.

The hope-for equivalence between the public and private sectors is clearly desirable so that standards of care do not break down as in the past. There is also, of course, desirability for these changes comes from the increasingly important role that the private sector plays in the nation’s healthcare. It is estimated that, by 2008, one in seven non-emergency NHS patients may be treated in hospitals and clinics run by the independent sector. Already, more than 80% of mental health patients cared for in the independent sector are funded by their local NHS.

For the first four months of 2006, there was a consultation period while the Commission gathered responses to its proposals from those affected by the forthcoming changes, including members of the public and healthcare professionals. It is hoped that all services will now be assessed in the same way, resulting in a consistent, unambiguous assurance on the core standards of care applicable to both the public and private sectors.

Although these reforms aim to bring the private sector up to the standards of the NHS, they must be seen as the beginning of the process of improvement, rather than the end.

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