Is there any point in giving patients ‘rights’ that the NHS cannot enforce?

PATIENTS in Scotland have a legal right to treatment within 12 weeks of a referral. Duty of candour legislation in place since 2018 was supposed to move Scotland’s NHS closer to the “no blame” culture of the airline industry. And a law promises to make safe staffing a legal duty.

Do these legal “rights” really make any meaningful difference for patients and frontline workers, and how can they even be enforced?

“Guaranteed” treatment within 12 weeks?

In 2012, the Patient Rights (Scotland) Act came into force. The SNP’S flagship legislation created the “treatment time guarantee” (TTG) which meant that no patient referred for a planned operation or day case procedure should wait any longer than 12 weeks for treatment.

For a while it got close – as recently as the end of 2014, compliance was hovering around 97% – but the downward trajectory had set in long before the pandemic. By the beginning of 2020, roughly 70% of patients were been treated on time and by the end of 2023, that had slid to just under 58%.

More than 26,000 people who had a planned procedure on the NHS in October, November, or December of last year had waited longer than 12 weeks. Moreover, by the end of December, there were more than 37,600 people still on waiting lists who had been waiting over a year already.

So where was their legal redress? Back when the legislation was being drawn up, it was made clear that patients would not be given the right to sue for compensation if their treatment fell outside the 12-week window. Nor would failing health boards be fined.

While patients could “expect” to be offered treatment in private hospitals or another health board area instead, there was no legal entitlement.

The only recourse available to patients is to seek judicial review. To date, there is no record of anyone doing so.

Openness and transparency

In April 2018, a new duty of candour law placed an obligation on all care providers – including health boards and care home operators – to publish an annual report disclosing the number and types of adverse events where individuals suffered “unintended or unexpected harm”, such as deaths or serious injuries.

Any such incidents now have to be notified to regulators and a meeting held where the person affected and/or their next of kin is told the fact and invited to ask questions.

Speaking to The Herald at the time, the Scottish Government’s national clinical director Professor Jason Leitch said it should make whistleblowing “less necessary” in the long run because the law would foster a culture more like that of the airline industry where staff feel “able to tell the truth in a safe environment and using it for learning”.

Measuring exactly how candid organisations have become is somewhat difficult, of course: if incidents have occurred which should have been disclosed, but were not, how do you know?

Safe staffing

On Monday, Scotland became the first part of the UK to implement safe staffing legislation across health and care (Wales has had a similar law since 2016, but for nurses only).

It places a legal duty on employers (health boards and social care providers) to ensure that there are “always suitably qualified staff working in the right numbers for safe and effective care”.

Fairly obviously, a law cannot magic away vacancies overnight: the NHS alone is missing around 4,000 nurses, 430 medics, and 770 allied healthcare professionals, while some care homes are already being taken to court by the Care

Inspectorate and forced to close because staffing shortages make them unsafe.

Neil Gray, Scotland’s Health Secretary, conceded that the government “hasn’t prescribed what a safe staffing level will be because it will be different for different settings”.

Once established, it will be up to employers to report “openly and transparently” back to ministers, who will then report to parliament. The data will be used to shape “local and national workforce planning”, said Mr Gray.

Might it be fairer, for example, to detail how many posts are being filled by locums or agency nurses – vacancies historically missing from official statistics?

And if staffing levels do fall short? There would be the “possibility of enforcement action”, said Mr Gray.

Exactly what that is remains vague.