Guest post by Alex Mullock, University of Manchester
On 28th April 2017 in the case of breast surgeon, Ian Paterson, the jury in Nottingham Crown Court agreed that in carrying out unnecessary and mutilating surgery the defendant had done what no reasonable surgeon would do. Paterson was convicted of seventeen counts of wounding with intent to cause grievous bodily harm (GBH) and three counts of unlawful wounding (under, 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 – 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.
Even when surgeons make terribly negligent mistakes, English criminal law, interpreted through legal principles established through the courts, means that even recklessly dangerous surgeons need not fear the criminal law. (An exception may arise if the patient dies, in which case a charge of gross negligence manslaughter might follow.) 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 – either their best medical interests, or in order to serve other quasi-medical interests. Cosmetic surgery would appear under this second heading. The offences of which Paterson has been convicted – which require either intention to cause GBH or, for the lesser section 20 offence, intention or foresight to inflict some harm (malicious wounding) – are generally not applied to surgery because although the surgeon does technically satisfy the requirements of the lesser offence by intentionally wounding the patient, she is acting in the patient’s interests and not maliciously. 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.
Treatment without consent is a criminal assault. Paterson’s victims signed consent forms, but the consent was based on inaccurate information. Paterson misled his patients by falsely telling them that the surgery was necessary and appropriate. 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 (even if it was actually negligent), thus making the consent sufficient to avoid criminal consequences. The principles that have developed to regulate consent are mainly civil law principles rather than criminal as the criminal law has rarely addressed this issue. Thus Paterson’s case necessitated a complex decision by the jury that also drew from civil law principles, notably the Bolam standard: they were asked to decide if the advice Paterson provided to patients was advice that no responsible body of appropriately qualified breast surgeons would give. If it was, did Paterson know this when he misled the victims into consenting to the surgery?
The facts pointed towards multiple situations in which Paterson knew very well that his advice was inaccurate and designed to mislead. Consequently, his actions in obtaining false consent and performing the surgery that inflicted wounds and seventeen instances of GBH could not be regarded as legitimate within the medical exception.
In the light of this verdict, patients who have suffered serious harm at the hands of incompetent surgeons or other doctors might feel that the civil remedies available – which might have awarded them financial compensation as a result of the malpractice – do not go far enough in holding errant doctors to account or preventing them from harming others. Insurance often shields doctors from the financial burdens of negligent medicine and, unless the GMC takes decisive action, the doctor 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 into concerns and complaints raised.
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 within an environment that misused principles of confidentiality to perpetuate secrecy, concealing vital information that should have been scrutinised and then 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, which may be the most important issue raised by this appalling case.