Call to scrap waiting times law as breaches hit record

Criticism over 12-week pledge amid steep rise in failure to meet rights of patients

MINISTERS are under growing pressure to scrap a flagship law they promised would give patients a legal guarantee of prompt NHS treatment, after it emerged it was being flouted in a record number of cases.

When the Treatment Time Guarantee came into force in 2012, the Scottish Government said it would give patients cast-iron certainty, enshrined onto the statute book, that they would receive operations within 12 weeks of being put on a waiting list.

However, new statistics have revealed that despite claims all health boards would hit 100 per cent compliance, the number of people having their legal right breached is spiralling, having doubled since it came into force.

Jackson Carlaw, health spokesman for the Scottish Conservatives, said the claim the law offered a legal guarantee was “becoming increasingly preposterous” as health boards broke the law in thousands of cases in December alone.

“The Scottish Government cannot offer any kind of reassurance to patients whose rights it said it would enshrine in the constitution,” he said. “Instead of papering over the cracks with words that have proved to mean nothing, the SNP should scrap this charade and come up with a meaningful plan of action.”

From October to December last year, as hospitals faced a growing bed crisis over winter, more than 2,300 patients received operations having waited longer than the guarantee period, around double the total recorded in the first three months it was possible for health boards to breach the new law.

Over December alone, when compliance dropped to its lowest level since the legislation was introduced, another 1,800 patients were stuck on waiting lists having waited beyond three months.

The picture has worsened significantly since a year ago, when NHS chief Paul Gray admitted he was “not fulfilling the will of the parliament” regarding the legislation and then-health secretary Alex Neil said health boards “are going to get 100 per cent”.

Dr Peter Bennie, chairman of the BMA in Scotland, said his organisation did not believe a “political guarantee” over specific waiting times should ever have been written into law.

He added: “During the progress of the Patient Rights Bill, the BMA lobbied for this legally binding guarantee to be removed, this was because in our view, the widespread use of centrally imposed treatment time targets has many unintended consequences, distorts clinical priorities and harms patients.

“Any objective which encourages clinicians to take actions which are potentially not in the patient’s best clinical interests is unhelpful. This is even more problematic if there are associated managerial imperatives which may further distort clinical decision making.”

Health boards face no penalties for breaking the law. They are expected to write to the patient whose right has been breached and individuals do not have recourse to legal action, other than seeking a judicial review.

The legislation states if a patient cannot be treated within the timeframe in its own area, a health board can send them abroad for treatment. However, when health boards moved to prepare to send patients abroad, ministers poured cold water on the plan.

Of the patients who had operations between October and December and had their legal right breached, 85 per cent came from the Grampian, Highland and Lothian regions. It was announced yesterday that NHS Lothian and NHS Highland will receive an extra £9 million to help address challenges.

Scottish Labour stopped short of calling for the law to be scrapped, but said more should be done to ensure the legislation was adhered to. Health spokeswoman Jenny Marra said: “The SNP gave people a legal right to be seen within 12 weeks. That law should be enforced.”

Health Secretary Shona Robison said health boards were delivering “some of the lowest waiting times on record.”

She added: “This performance was maintained as we headed into the challenging winter period last year, but we know we must do more to meet some of the rightly demanding targets we have set. Patients would expect nothing less.

“Today’s figures showing that 97.1 per cent of inpatients and day-case patients were seen within 12 weeks.”

THE chairman of the British Medical Association in Scotland says he does not believe political guarantees on patient waiting time should have any place in law. This is sound advice, with which we can agree, but it is like a tradesman painter shouting from a doorway to an apprentice who has trapped himself across a wet floor in the far corner. Fine sentiments but a bit late, perhaps.

We would go further and say that the culture of targets and possibly even waiting time statistics in general is not the intelligent way ahead. The trouble is, like it or not, politically this is where we are and where we will continue to be. There is no going back on this.

We got ourselves in this bind back in the bad old days when Westminster ran an NHS which was theoretically different across our nations but in practice homogeneous in operation. Then the running of the NHS diverged, as was appropriate to the age of devolution and true to the history of the NHS, but the political culture of targets and blame remained the same.

Among the biggest culprits were the SNP and a bright young shadow health minister at the start of the millennium by the name of Nicola Sturgeon, who hounded the Labour-Liberal Democrat Executive relentlessly on waiting times and missed targets. This became the political way, and remains so. The SNP, focused in their targets in Opposition, cannot now get out of this in government, even if we all agree it is not the best way to run our health system.

Alex Neil found that to his cost as Ms Sturgeon’s successor as Health Secretary and now Shona Robison is finding the same. If you live by the sword you can die by it.

To some degree targets are good and necessary, a mechanism to judge performance and to create yardsticks. Turn them into the political Holy Grail as fixed “targets” and you are asking for trouble. Convert these into legislation with guarantees and you are putting a political gun to your own head.

You can argue that Labour, should they harbour the ambition to return to government at Holyrood one day, might want to be careful in using this line of attack on the NHS as they will face the consequences one day. But that would be crediting politicians with long-term thinking.

Will Ms Sturgeon’s Government succumb to pressure and scrap its flagship law enshrining the right to prompt treatment in law? The Government made a half-decent fist yesterday of arguing that the latest figures were not that bad over a winter in which the flu jab appears to have been blindsided by the wrong strains striking. Percentages in the case of some targets were off by a fraction of one per cent.

The Government cannot say it but we will: health statistics, waiting times, treatment times, accident and emergency figures, bed blocking evidence – all are properly in the public domain and should be matters of legitimate accountability. But strict targets or, worse, those enshrined in legislation, might actually be a National Health Disservice.