Introduction
It was always bound to be a high profile case, as well as a puzzling one. Dr Ian Paterson was someone held in high regard – a doctor and, by his mid 30s, a consultant General Surgeon. In many ways he had it all.
Thus it was an extremely long fall when, on 31st May 2017, he was sentenced to 15 years imprisonment at Nottingham Crown Court.
Facts
Between 1997 and 2011, Dr Paterson would have operated on thousands of people. Presumably in many cases there was a legitimate medical need and they would have passed without note.
In many others, however, it was alleged that he operated when there was no clinical need. All the patients affected were referred to him as there was a concern that they were suffering from breast cancer (so far the NHS has paid compensation to 256 patients, with a further 25 claims still outstanding).
Dr Paterson would conduct an examination of the area, following which there would be a mammogram and an ultrasound. In all the cases the result of this would be that there was little or no indication of a heightened risk of breast cancer.
For reasons that are not entirely clear, Dr Paterson exaggerated the risks and “advised either the necessity of undergoing continued surveillance of their symptoms at further consultations, or, on some occasions, the undertaking of various surgical procedures” in circumstances “that no responsible body of duly qualified and experienced breast surgeons would have advised” was necessary.
Ten patients were chosen for the trial as representatives. There were actually 20 Counts on the indictment as some patients had more than one procedure and Dr Paterson faced a count for each procedure.
Charges
Dr Paterson faced 20 counts (probably all alleging an offence of wounding with intent under s18). The jury convicted of 17 counts of s18, as well as three counts of the lease serious offence of wounding without intent.
Charges for this are normally brought when one person attacks another – a pub fight with a glassing would be a good example. However, any ‘wound’ will count.
And as a wound is any injury that breaks the continuity of the skin. So, any time a surgeon cuts into a body they are ‘wounding’ them. Of course, this doesn’t normally involve committing an offence, because medical procedures are legal.
As was explained in the famous case of Brown – “Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or
deemed consent is a pre-requisite. It is in a category of its own.”
However, where the procedure is carried out in circumstances like this, the offence is committed. There was a trial, at the conclusion of which the jury concluded that they were sure that Dr Paterson knowingly and deliberately carried out surgery that he knew was unnecessary.
Why did he do it?
The answer to this is not clear, and it may well be that it is an extremely complicated mixture of motives that are impossible to unravel.
The trial Judge (who would be best placed to assess) said : “It may be that the full spectrum of your motivation for these offences will never be known. However, having observed you during the trial, and listened to the evidence, including your own, I have no doubt that in pursuit of your own self-aggrandisement and the material rewards which it brought from your private practice, you lost sight of the fact that you were carrying out significant surgical procedures upon your patients, and that, without any regard for the long-term effects which it had on them, you deliberately played upon their worst fears, either by inventing or deliberately exaggerating the risk that they would develop cancer, and thereby gained their trust and confidence to consent to the surgical procedures which you carried out upon them“.
Sentence
The Judge’s sentencing remarks have been published. They are very well set out and very readable, and should certainly be read by anybody with an interest in the case.
In essence, he started with the Sentencing Guidelines. It was identified as a Category 1 case – see page 4 of the Guidelines and para 68 of the Sentencing Remarks.
This gives a starting point of 12 years, and a range of 11-16 years. Here, the Judge balanced the aggravated features that were undoubtedly present (particularly the multiple offending) with the mitigating features that were again undoubtedly there, and came to the conclusion that it was not necessary to go above the range, but a sentence towards the top would suffice.
Although there may well be an attempt to appeal, and because of the unusual nature of the case the Court of Appeal may well think it appropriate to hear it, we would be surprised if it was successful. It may well be that the Attorney-General will be under pressure to review the sentence, but the Judge seems to have done an excellent job of explaining the reasons behind the sentence that he passed.