The UK’s work safety regulator failed victims of disgraced Dundee doctor Professor Sam Eljamel and must investigate immediately, a former top inspector claims.
Roger Livermore, a veteran prosecutor for the safety regulator, accused his old workplace of neglecting its duty to probe the surgeon and health board, NHS Tayside.
Prof Eljamel botched dozens of operations while working in Dundee and left patients with life-changing injuries.
He removed the wrong part of one woman’s body during surgery. Another patient was awarded £2.8 million in compensation due to his mistakes.
His victims rallied outside Holyrood on November 16 demanding a Scottish Government inquiry into the escalating scandal.
They want to know why the NHS initially allowed Prof Eljamel to continue practicing once concerns had been raised.
Your average corner shop gets better regulation than patient safety. It is appalling.
– Former HSE prosecutor Roger Livermore.
Lead campaigner Jules Rose, who had a tear gland removed instead of a tumour, insisted the surgeon had been allowed to “butcher” patients.
Mr Livermore joined campaigners in demanding an inquiry under the Health and Safety at Work Act.
The legislation states every worker has to “take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work”.
Mr Livermore told The Courier: “He was not complying with the Act, which requires him to take reasonable precautions for patients.
“NHS Tayside did not have an effective management system for managing his competence and performance. They knew there were problems with Eljamel but they didn’t act.”
He added: “In this case, it’s very clear neither Eljamel nor the board did all that was reasonably practicable to protect the health and safety of patients.”
The Health and Safety Executive has repeatedly snubbed calls to launch an investigation.
In correspondence with campaigners, they have stated: “We will not investigate where we believe the issues are not ones that fall to HSE and this is made clear in our published procedures.”
They claim Prof Eljamel’s failings relate to “clinical care”. But campaigners say their concerns are centred on patient safety.
What do health and safety guidelines say?
HSE guidelines state they investigate serious workplace injuries, including those inflicted on non-workers.
But in 2015, Scottish National Clinical Director Jason Leitch claimed the health service should be exempted from some rules.
He said: “Health and safety legislation exists for a very good reason and applies in all workplaces, but what it doesn’t apply to is the kind of individual patient harms which occur in healthcare systems.
“It should be used – but sparingly. It should exist for people who deliberately harm people.”
There is further confusion in Scotland due to the existence of a separate body which monitors healthcare standards.
In 2019, the HSE renewed an agreement with Healthcare Improvement Scotland (HIS) to cooperate.
Patients are being ‘failed’
Mr Livermore says HIS cannot be expected to investigate failings by doctors because they are not independent of the health service.
In a 2019 document, HSE chiefs admitted they remain the “regulator for risks to patient safety from failings in management systems”.
Mr Livermore told The Courier: “The only people with the competence to investigate is the health and safety executive.
“Patients harmed in Scotland are being failed by the HSE. Eljamel was a massive problem, but he’s representative of a bigger problem.
“Your average corner shop gets better regulation than patient safety. It is appalling.”
Inquiry found ‘gaps’ in England
A 2013 public inquiry into the Mid Staffordshire Foundation Trust in England was critical of the body.
While the report acknowledged not all possible breaches could be uncovered, it claimed there was a “regulatory gap”.
It stated that a lack of resources had led to an “unacceptable position” where “the more serious and widespread a failure is, the less likely it is that HSE will intervene”.
In a 2020 letter to Tory MSP Liz Smith, HSE chief executive Sarah Albon said the regulator gave “less priority” to cases which could be looked at by other regulators.
Ms Smith said health and safety bosses should still step up and investigate the scandal.
The Mid-Scotland and Fife MSP said: “HSE failed in its duties to act as patient safety regulator when very serious matters about Professor Eljamel’s medical negligence were brought to its attention.
“HSE should have held NHS Tayside accountable for what went wrong but this has never happened.”
The Scottish Government has refused repeated demands to launch its own public inquiry.
A spokesperson said: “The questions that remain are ones that must be answered by NHS Tayside.”
A HSE spokesperson said: “We understand the concern and distress of patients affected but the circumstances of this case put it outside the remit of HSE. We do not generally investigate matters of clinical judgement or practice.”