- The Deputy Presiding Officer (Trish Godman):
The next item of business is a debate on motion S3M-7400, in the name of Nicola Sturgeon, on the Patient Rights (Scotland) Bill.
- The Deputy First Minister and Cabinet Secretary for Health and Wellbeing (Nicola Sturgeon):
I am pleased to speak in favour of the Patient Rights (Scotland) Bill, which is extremely important. It gives life and meaning to a principle that I hold very dear: the principle of a patient-focused, mutual national health service. It is deliberately about raising the status and focus of patients’ rights, and clarifying those rights and the duties of health boards with regard to the manner in which patients are treated. In short, it seeks to change the culture of the health service and the dynamics of the relationship between the patient and the health service in a way that levels the playing field. I believe that that is why it has strong support in a range of groups that represent the users of the NHS.
The Health and Sport Committee said in its report on the bill:
“there is overwhelming support for the rights and principles which the Bill sets out to enshrine. There is a general acceptance of the need to ensure that the rights of patients are respected and clearly understood”.
The committee acknowledged that the current framework for the promotion and communication of patients’ rights is not effective and that changes need to be made.
The committee’s main criticism of the bill seemed to be that legislation is not necessary to improve patient rights. It recommended that, instead of primary legislation, the measures in the bill, along with all the other rights that patients have in reserved legislation and common law, should be put into a patient charter and issued using my powers under the National Health Service (Scotland) Act 1978.
With the greatest respect to the committee’s report, which is, as usual, a thorough piece of work, I do not agree with that approach. I believe that primary legislation is the right and best way to secure and enhance the rights of Scotland’s patients. Primary legislation raises the importance and meaning of patient rights as a matter of fact and law, and sends a strong and powerful message to the health service, professionals, patients and carers. It will give priority and prominence to the rights of patients, and will help to focus the actions of health boards. I do not believe that a charter would be an effective way to make real and lasting change in the NHS. We should not forget that that approach was tried before, by the Conservative Government back in 1991, and that it did not work. It did not lead to the changes that people wanted. A patient charter would not have the same authority or status that the bill will have, and it could more easily be ignored or sidelined by future Governments.
If members vote for the Patient Rights (Scotland) Bill, we will be taking a bold step in setting out the foundation for a statutory framework of patient rights that will last way beyond this parliamentary session and even the next. The Parliament would leave a significant legacy if it was the first in the United Kingdom to legislate for patient rights and create an NHS that truly and meaningfully put patients at its heart.
I want to talk about some other points that the committee raised in its report. There has been criticism that the bill contains no new rights and no mechanisms for redress, but that is not the case. The bill will create, for the first time, the legal right to complain and will establish the treatment time guarantee. It is true, of course, that a variety of other rights already exists, but they come from disparate sources, are not always clearly understood, and often relate to very specific matters such as access to records rather than to the very essence of the relationship between the NHS and patients.
On the issue of redress, the only thing that the bill does not do is create a new, additional right to go to court. That does not add up to there being no right of redress. The bill clearly sets out the duties on health boards to respond to and learn from complaints and the steps that they need to take to deliver the treatment time guarantee.
It is also the case that the bill does not remove any existing rights of redress, whether through the courts or to the ombudsman. More fundamentally, the debate about redress is in danger of missing the point of the bill, which is not about adding to existing rights of redress for patients when things go wrong, although as I have said, it strengthens them. After all, as members have pointed out before, most patients do not want to pursue litigation claims against the NHS; no one wants a lawyer by every bedside.
What the bill is about, as I have said, is changing the culture of the health service and the dynamics of the relationship between NHS and patient in order to raise patient satisfaction levels and minimise the chances of things going wrong. However, there was one recommendation in the committee report about redress that I think merits further work. It recommended that the Government consider introducing a method of alternative dispute resolution. I welcome the suggestion and have asked my officials to explore it further.
I turn to the treatment time guarantee. Some committee members thought that the guarantee could distort clinical priorities. If that were the case, it would be a legitimate source of concern, but I assure members that that is not the case. The provision at section 18(1)(a) provides that
“Nothing in this Act prejudices ... the exercise of clinical judgement”.
That means that boards must still take account of clinical priority. Section 8(3)(a) also makes that clear in relation to the treatment time guarantee. However, when I appeared at the committee, I said that I would consider an amendment to the bill to include a similar provision in an earlier section on the treatment time guarantee. I confirm that the Government will lodge that amendment at stage 2, and that clinical priority must also operate within the treatment time guarantee.
The committee was also concerned about the small number of exclusions from the treatment time guarantee; I stress that the list of exclusions is short and that it mainly includes services that, for obvious reasons, it is not possible to deliver within 12 weeks, such as obstetrics and organ donation.
- Mary Scanlon (Highlands and Islands) (Con):
I remind the minister that although the list is short, there are thousands of mental health patients who are not covered by the treatment time guarantee.
- Nicola Sturgeon:
Mary Scanlon makes a timely intervention—I was coming on to that very point about mental health. With the greatest of respect, the area has caused some confusion. Where a treatment or service meets the eligibility criteria of planned or elective care delivered on an in-patient or day-case basis, it is covered. That is as true for mental health services as it is for all services.
I know that many in this chamber, including me, are concerned about waiting times for mental health services that will not come within the treatment time guarantee because they are not delivered on a day-case or in-patient basis, such as access to psychological therapies. I have made it clear before, as has the Minister for Public Health and Sport, that we are determined to take action in that respect and are currently working on the development of a health, efficiency, access and treatment target for access to psychological therapy, to be introduced in 2011-12. Mary Scanlon raised an important point, but I hope that I have cleared up the confusion about what is covered in the bill. The rights and principles in the bill apply to all patients; it is not discriminatory.
The committee suggested that the bill should be amended so that compliance with the 18-week referral-to-treatment target is reported in the annual report of general practitioners. The Government is happy to consider that recommendation.
I move to the final section of the bill, which introduces a legal right to complain and a patient advice and support service. The committee’s report asked what practical difference the complaints procedure in the bill would have. At the moment, no right to complain is set out in primary legislation. Research shows that patients can be reluctant to make complaints. In some cases, that is because of the fear of repercussions—hopefully always unfounded—or of the effect that the complaint might have on patients’ relationship with the NHS and their future treatment. The statutory right that is included in the bill is intended to give patients the confidence that it is okay to exercise that right.
The patient advice and support service will enhance and replace the existing independent advice and support service. It will be staffed by patient rights officers who will provide support and advice to patients about their health and the health service. In particular, they will help patients to give feedback or make a complaint. The committee agreed in its report that there is a need to improve the existing service. It recognised “the current variation” and welcomed
“the commitment of the Scottish Government to address these issues.”
The committee suggested that that should be done by developing the existing structure through a national contract. I agree that a national contract is necessary, but the arrangement would benefit by being underpinned in legislation, to ensure a consistent and enduring value-for-money service.
- Ross Finnie (West of Scotland) (LD):
I would be grateful for clarification. If no right to complain exists, why are powers being taken to repeal the current legislation on the complaints procedure?
- Nicola Sturgeon:
I am happy to get the specific answer to that question so that I can give it, but no statutory right to complain exists. The bill introduces the right to complain. If Ross Finnie wants me to address his point when I sum up, I will be happy to do so.
The bill is of course about patients. It introduces measures that patients want on how they are treated, on being involved in decisions about their care and on the support that they get to use health services. However, the bill does more than that. It legislates for support to patients, it establishes the legal right to make a complaint, to raise concerns and to give feedback and it puts in legislation a guarantee on treatment times.
I said to the committee, and I repeat, that my passion for the bill stems directly from my experience in the past three and a half years. I know that everyone in the chamber shares my commitment to and belief in the health service, even if we sometimes disagree on the detail of policy. Ironically, the passion that everybody has for the health service makes me think that the bill is needed.
I am often struck by the fact that patients’ loyalty to and regard for the NHS sometimes make them accept things that should not be accepted. I often speak to patients who feel that making a complaint is somehow disloyal to the health service, that it might affect their care or that it will not make a difference. Some feel that, because they receive world-class clinical care, they should not speak out about issues such as not being properly communicated with, the standard of food in hospitals or the dignity with which they are treated. The bill says clearly that speaking about all such issues is not just okay but is in fact the right of patients.
Yes—the bill is about immediate legal rights, and we are keen to work with members to strengthen the bill further in that regard at stage 2. However, the bill is also about changing the culture and the dynamics—it is about levelling the playing field between the patient and the big organisation that is the health service. For those reasons, I urge members to vote for the bill’s general principles.
That the Parliament agrees to the general principles of the Patient Rights (Scotland) Bill.
- The Deputy Presiding Officer:
I call Christine Grahame to speak on the Health and Sport Committee’s behalf.
- Christine Grahame (South of Scotland) (SNP):
I remind the Parliament that, as the Presiding Officer was right to say, I speak as the Health and Sport Committee’s convener, so I am—properly—constrained in my remarks.
Here we go—another week, another day and another Health and Sport Committee debate. I tell the team that we should get an award for stamina. I thank the entire Health and Sport Committee team—clerks, the official report and Scottish Parliament information centre staff—for such dedication to duty. I also thank all those who gave written and oral evidence. Enough of gratitude—to business.
The Patient Rights (Scotland) Bill was introduced in the Parliament on 17 March this year. The committee held a seven-week call for written evidence between 25 March and 13 May that resulted in 41 written submissions being received. The committee took oral evidence between 8 September and 6 October.
We heard first from the Scottish Government’s bill team, Citizens Advice Scotland, Consumer Focus Scotland and the Scottish Public Services Ombudsman. On 29 September, we took evidence from Inclusion Scotland, Long Term Conditions Alliance Scotland, the Scottish Association for Mental Health, the Royal National Institute for Deaf People Scotland, the Royal National Institute of Blind People Scotland, the British Medical Association Scotland, the Royal College of Nursing Scotland, the Royal College of General Practitioners Scotland, Unison and the Law Society of Scotland—a motley crew. We are beginning to bond with many of those organisations, so frequent are their visits. We concluded oral evidence when we heard on 6 October from the NHS Forth Valley patient focus and public involvement steering group, NHS Lothian and—last but not least—the cabinet secretary.
The stated aims of the bill as introduced are to set out the rights of patients who receive health care from the NHS, to introduce a guarantee for eligible patients to start to receive medical treatment within 12 weeks of treatment being agreed—I stress the word “agreed”—and to provide for the rights of patients to make complaints about and provide feedback on their treatment by the NHS through the provision of a new patient advice and support service. That service will be provided by the Common Services Agency of NHS Scotland on a contractual basis with a service provider. PASS will include the establishment of patient rights officers in each of NHS Scotland’s 14 territorial health board areas. It is fair to say that it will be more of a conduit for complaint services.
The committee published its stage 1 report on Thursday 4 November. Consideration of the bill was based on the bill’s four principal aspects, to which the cabinet secretary referred: patient rights; the treatment time guarantee; complaints and feedback; and PASS. I will turn to the first, patient rights, and thereafter deal with the others in, I trust, an orderly fashion.
One of the main issues that we considered was what constitutes patient rights and whether primary legislation is the most suitable means of promoting them. Another was the fact that the bill covers some rights but not all rights, which is a point that other members might develop. The committee also considered the need for rights to be enforceable while ensuring that Parliament does not create a charter for lawyers—tedious expression though it is—in relation to the NHS.
The committee welcomed and shared the commitment of the Scottish Government to promote the rights of patients but, notwithstanding the cabinet secretary’s comments, we considered that there is an
“inherent contradiction between, on the one hand, setting out patient rights in primary legislation giving the impression of enforceable rights and, on the other, making express provision in the Bill to limit the legal enforceability of these rights.”
The committee went on to state that the bill
“may raise unrealistic expectations amongst patients regarding their rights due to the limitations on legal enforcement under section 18 of the Bill.”
I heard what the cabinet secretary said and I think that we accept the point, but we are creating a right without a remedy.
Members of the committee differed in their views on the use of primary legislation to promote patient rights. The report states:
“Some Members of the Committee believe the Government’s objective would be more effectively achieved by bringing up to date a revised and comprehensive patient rights charter. This should be in plain English, enshrining the healthcare principles set out in the Schedule to the Bill, all of the rights available to patients (existing rights, new rights provided for in the Bill, including”,
as the cabinet secretary said,
“an alternative dispute resolution mechanism),”—
such as mediation—
“to be published by the Cabinet Secretary using the powers of direction under the NHS (Scotland) Act 1978.”
On the treatment time guarantee, which the cabinet secretary also dealt with, the 12-week treatment time guarantee is for elective/in-patient treatments for patients and there are a number of exclusions—the cabinet secretary referred to some of them. Some that she did not refer to are assisted conception; diagnostic tests; outpatient treatments; and alcohol and drug misuse services, although I think that there may be reasons why it would be difficult in some circumstances to provide those within a treatment time guarantee.
Members of the committee again differed in their views regarding the introduction of the treatment time guarantee and the decision to place it in primary legislation. The report states:
“Some Members consider that the treatment time guarantee will be beneficial to patients by providing reassurance about the maximum time they may have to wait for treatment following diagnosis. Other Members consider that the proposed guarantee would add little to the existing 18 week referral to treatment target and are concerned by evidence that a new target could have unintended consequences including the potential for distortion of clinical priorities. In addition, these Members question the value of a statutory ‘guarantee’ which cannot be enforced.”
The report continues:
“The Committee also noted the concerns raised about the proposed exclusion of a number of services”—
I have mentioned two or three—
“most notably mental health services.”
I again note the cabinet secretary’s remarks. The report goes on:
“While the Committee accepts that it would be illogical to set targets for the treatment of patients accessing mental health services in response to a crisis, it is disappointed that access to services such as cognitive behavioural therapy are deemed to be outside the scope of the 12 week guarantee”.
On complaints and feedback, the committee fully supported the aim of the Government in seeking to develop a more open and accessible system of patient feedback within the NHS. However, we were not clear what practical difference the provisions of the bill would make for patients who want to
“give feedback, raise concerns or complain about the health care they have received. Patients already have a ‘right to complain’”—
notwithstanding that it is not enshrined in statute—
“and the provisions of the Bill will not alter that right in any way.”
On PASS and patient rights officers, the committee considered the proposed structure and the costs for the establishment of a new patient advice and support service and noted the variations that have developed in the level of service delivered by the current independent advice and support service, which is operated by citizens advice bureaux. We accepted that the service is not uniform throughout the country. Many of the issues relate to the current contractual and funding basis for the IASS, which varies from one health board area to another.
The committee believed that the role of PASS and patient rights officers
“are not sufficiently clearly defined in the Bill”.
The committee went on to note that the role of a PRO will be to act as a “signpost” for patients, assisting them with feedback, providing them with advice and supporting them in making complaints. However, PROs will be prevented from carrying out any advocacy role on behalf of patients. That seemed a bit cluttered and, given that, the committee failed to see how PASS and the PROs will be an improvement on the current service provided by the IASS—forgive me for using all these acronyms. In the committee’s view,
“a more effective and efficient approach could be to build on the current IASS structure by developing it through a new national contract. Such an approach would retain the best elements of the present system whilst addressing the concerns regarding the inconsistencies in the level of service and funding between health board areas.”
That would ensure that we do not throw out the baby with the bathwater.
I turn to our overall conclusion. The good news for the cabinet secretary is that we were unanimous in our support for the promotion of patient rights and the Government’s aim of placing patients at the centre of the NHS in Scotland. The bad news is that the committee was divided on whether primary legislation is the most appropriate means of achieving that goal. The report states:
“Some Members feel that the Bill has the potential to offer a renewed focus on patient rights, including a new treatment time guarantee and an enhanced patient advice and support service. These Members consider that the Bill will provide the necessary impetus to help overcome any organisational or cultural obstacles to change which may exist within NHS Scotland.”
However, it continues:
“a majority of the Committee is not persuaded by the evidence which has been advanced to date, that primary legislation is the most appropriate means of promoting patient rights.”
Some members went on to recommend, as an alternative, that the Scottish Government publish a comprehensive patient rights charter, to be enforced in the way that I have described.
The report states:
“Some Members consider that the Bill, as introduced, will not contribute significantly to the goal of achieving a patient-focused health service and, contrary to the Government’s policy intentions, may potentially cause confusion regarding the legal rights of patients.”
“Consequently, the Committee is unable to make a recommendation to the Parliament on the general principles of the Patient Rights (Scotland) Bill.”
We agreed to disagree.
- Jackie Baillie (Dumbarton) (Lab):
I welcome the stage 1 debate on the Patient Rights (Scotland) Bill. I thank the Scottish Government for introducing the bill, the Health and Sport Committee for scrutinising it and all those who contributed to the consultation. Although I am pleased to indicate that Labour supports the general principles of the bill, we acknowledge many of the committee’s concerns and intend to lodge a number of amendments at stage 2 to improve the bill’s provisions.
First, there is the fundamental question of whether legislation is required to achieve the outcome that all of us desire. I am glad that the cabinet secretary addressed that point. I know that the Scottish National Party had a manifesto pledge to give every patient a legally binding waiting time guarantee and I recognise that the bill falls short of that commitment; indeed, many of those who gave evidence to the committee suggested that the lack of sanctions and of a means of enforcement are a potential weakness. I note that section 18 restricts the potential for legal action. I agree with that, because we do not want to foster a compensation culture or to create a bonanza for lawyers. Therefore, one must question why a legislative approach is needed.
Rather than have legislation that simply declares or asserts something, we need legislation that sensibly advances patients’ rights within a framework that recognises the mutuality of the NHS and the balance between rights and responsibilities of patients and of staff. The bill as drafted does not reflect that balance; as I understand it, it does not even reflect all of patients’ existing rights.
We favour an approach that enables the cabinet secretary to introduce a comprehensive charter of rights and that begins to get the balance right by reflecting responsibilities, too. However, she is right to say that we need to ensure that provisions are properly implemented. Any action of Government requires monitoring, reporting and assessment of whether it is working. There are many things in the health service that are not conditioned by legislation, but health boards are in no doubt about the importance of those issues.
Secondly, the treatment time guarantee covers only in-patient procedures. I understand why it excludes people who require mental health treatment, for example, but it may have the effect of skewing clinical priorities. I note the cabinet secretary’s comments, but I wonder whether the treatment time guarantee is not too blunt an instrument. Surely it would be better to have a more encompassing patient guarantee—a more sophisticated approach that covers different aspects of the patient journey, but with sufficient flexibility to allow for clinical priorities to be considered. That is not necessarily for legislation; rather, we want to enable ministers to take forward the matter in dialogue with patients and clinicians.
Thirdly, and as Christine Grahame has mentioned, the role of patient rights officers lacks clarity and seems only to signpost, so it is not as wide in scope as the existing provision for the independent advice and support service. Surely it would be more cost effective to work with that model and to develop a national contract. We do not need legislation to secure best value.
We agree with establishing the legal right to complain, which we think is important. We agree that we need to improve the NHS complaints system—and I am sure that many members who have worked with the system will testify to that. Again, one wonders whether that should be set out in legislation, but we are willing to consider that point further.
Most people who come to us to describe an unhelpful experience in the NHS do not really want to complain. In many cases, they want the NHS to apologise, and we should never underestimate the power of just saying sorry. Importantly, they also want the NHS to learn from the mistake, so that no one else goes through their experience.
I have been told about the complaints system at the State Hospitals Board for Scotland, which is described as being based on the four Cs. The first of those is complimenting people. That does not happen often enough. We should be telling people that they have got something right—positive endorsement. Secondly, comments are taken on board. That is often enough to resolve a situation and to stop it escalating further. Thirdly, concerns are addressed. Thereafter, and only when necessary, are complaints considered. That system is very much about early resolution and it is important that we learn from that example.
I agree with the suggestions that have been made about an alternative dispute resolution system. We have discussed no-fault compensation and mediation, and I am hopeful that the cabinet secretary will lodge amendments in that regard.
We welcome the bill for the opportunity that it provides to raise patient rights up the agenda. I share the cabinet secretary’s passion for the NHS, its staff and all the hard work that is done in treating our constituents, our families and our friends. We believe in a mutual NHS that is absolutely patient centred. On that basis, we will support the general principles of the bill.
- Mary Scanlon (Highlands and Islands) (Con):
In scrutinising any piece of proposed legislation, it is right and proper that parliamentarians look for the benefit that it will bring—in this case, to patient rights. At the end of the stage 1 process, I am still looking for those benefits in the Patient Rights (Scotland) Bill.
Section 1 states:
“Health care is to ... be patient focused ... anything done in relation to the patient must take into account the patient’s needs”.
It goes on to say that health care should provide
“optimum benefit to the patient’s health and wellbeing ... and encourage the patient to participate as fully as possible”.
Do we need to legislate for that? Is that not happening? Surely NHS staff do not do things to patients that are not patient focused, that do not provide benefit and that do not involve the participation of the patient. If they do, there are disciplinary procedures to address such unacceptable behaviour.
Sections 6 to 10 cover the treatment time guarantee. What happens if it is breached?
“The Health Board must ... make such arrangements as are necessary to ensure that the agreed treatment starts at the next available opportunity ... provide an explanation ... give the patient details of ... advice and support”
and tell them
“how to complain.”
Is that not happening at present? As the Health and Sport Committee confirms in its report,
“there is an inherent contradiction between ... setting out patient rights in primary legislation”
and having no legal enforceability for those rights.
The treatment time guarantee does not apply to the majority of patients with mental health problems—they will still have to wait months, and sometimes years, to see a psychiatrist or psychologist or to get cognitive behavioural therapy; neither does the guarantee apply to patients who are waiting for physiotherapy. It does not apply to treatments that are undertaken in hospital out-patient departments, and it does not apply to diagnostic tests. It is a fact that someone can get a hip replacement or heart bypass in 18 weeks—or, in future, in 12 weeks—but people can wait months or years to talk to someone about their depression.
I agree with the Scottish Association for Mental Health that this bill perpetuates the division between mental health and other NHS services. I asked the Law Society of Scotland whether that was considered discrimination against mental health patients and its response was:
“the provision clearly appears to be discriminatory under the normal meaning of the word.”—[Official Report, Health and Sport Committee, 29 September 2010; c 3430.]
The fact is that in mental health there is absolutely no doubt that early diagnosis and early intervention can save NHS spend on treating severe, chronic and enduring mental health problems in the long term, allow people to enjoy a quality of life and allow many to remain in work.
The cabinet secretary spoke of the support for the bill. I attended every minute of every evidence session and I can tell her that the support was minuscule. The Law Society, the British Medical Association, the General Medical Council and many others highlighted the point that nothing in the bill is enforceable by legal action.
The Scottish Public Services Ombudsman, who I think knows something about NHS complaints, stated:
“the Bill does not appear to provide any significant extension to existing rights and expectations in relation to the quality of NHS services provided in Scotland. Instead, it confirms and makes explicit rights and expectations that currently exist.“
He went on to say that the bill
“carries the risk of an unwelcome increase in legalism and litigation in disputes between members of the public and the NHS.”
As Jackie Baillie said, there is no provision for patients who wish to give feedback, raise concerns or complain. They will all be channelled to patient rights officers.
I commend the convener of the Health and Sport Committee, who managed to get us all to agree on a final conclusion, which was:
“the Committee is unable to make a recommendation to the Parliament on the general principles of the Patient Rights (Scotland) Bill.”
For all those reasons—and because of the Scottish Conservatives’ commitment to patient rights and responsibilities—I ask the cabinet secretary to examine and produce a revised patient rights charter under the power available to her under the National Health Service (Scotland) Act 1978. The Conservatives produced the first patient charter in Scotland in 1990. It was revised—and rightly so—and enhanced by the Liberal-Labour Scottish Executive in 2000. A further 10 years on, it is appropriate and justified for the Scottish Government to review it. In doing so, it would have our full support.
- Ross Finnie (West of Scotland) (LD):
For a moment there we saw Jackie Baillie sitting next to the cabinet secretary. Given her change of stance, we can see why.
Patient rights derive from a variety of sources, as the cabinet secretary pointed out—from legislation, case law and common law and convention. Patient rights are undoubtedly not easy to find. Indeed, sometimes it is difficult for the patient to ascertain precisely what their rights are. So, there is no real difficulty; in fact, there is unanimous agreement that if we are fostering a patient-focused, mutual health service, we need to make patient rights more capable of being easily understood and promote them. The disagreement is about how best that can be achieved.
The Liberal Democrats are clear that if we are to have resort to statute, it ought to have a legal purpose and effect. We are not satisfied that it should just be a status symbol or something that gives people a sense of importance. Across the range of Government policy—I mean not necessarily the SNP Government but Governments of any colour—the danger is that very serious policy statements will be diminished because the public will begin to believe that unless something is in a piece of primary legislation, it is not worth the paper that it is printed on. That would be a dangerous precedent.
Despite the fact that the Government’s consultation told it that people did not want a lawyers’ charter, it still proceeded with the bill, which is a legal instrument by definition. However, realising that that could be difficult, it drafted section 18(2), which effectively emasculated its own bill by stating:
“Nothing in this Act gives rise to—
(a) any liability to pay damages,
(b) any right of action for specific implement,
(c) any right of action for interdict,
(d) any right of action for suspension”.
That left a general right to seek a declaratory judicial review, all of which left one asking oneself why on earth we were creating an act of Parliament if it was to have such little force and effect.
Perhaps members were left with the view that the bill would bring all the patient rights together in one place. Then, we would know clearly and understand what it was about. However, if members read the bill, they will find that at least 17 existing rights are not referred to. The right of access to medical records, the issuing of medical reports for insurance purposes, the right to advocacy services for mental health service users, the right to appoint a welfare attorney, the right to life—for instance, in connection with treatment rationing—the right to a GP and the right to a second opinion are not referred to, and so it goes on.
The bill does not cover all our existing rights and creates only two new rights. One is the treatment time guarantee, which does not necessarily need to have a statutory backing. The other relates to complaints. The bill repeals the Hospital Complaints Procedure Act 1985 and, in section 11, reinstates in effect what that act says.
We are left with a difficult situation and begin to ask why we need a bill. Others have supported us in that. I will quote one or two examples:
“I want to return to the question of exclusions. We are being asked to consider a bill that entrenches discriminatory rights in law. That is one of our main concerns.”—[Official Report, Health and Sport Committee, 29 September 2010; c 3436.]
Those are the words of Dr Richard Simpson at committee.
“Human rights legislation is not mentioned in the bill, which just says that it is necessary to ‘have regard to’ the need to treat a patient with dignity and respect”.
Again, those are the words of Dr Richard Simpson in committee.
“My concern is not only that the bill does not help, but that it does not encompass all the rights that patients have.”
Those, too, are the words of Dr Richard Simpson.
“the fact is that substantial numbers of rights are not referred to in the bill. The implication is therefore that the rights in the bill are greater than other rights.”—[Official Report, Health and Sport Committee, 6 October 2010; c 3563.]
Those, too, are the words of Dr Richard Simpson but, despite his trenchant opposition to the bill, he now supports it whole-heartedly. Apparently, he is going to amend it. Perhaps he is going to introduce even more legal powers, although I doubt it. Perhaps he is going to try to bring all the rights, with their different legal remedies, into a single act. What an appalling mess that would be.
As the Health and Sport Committee report makes clear, there is a better alternative, which has been adopted in Australia and south of the border in England: we can achieve the same aims through a patient rights charter. It would not be for the selected few rights that are in the bill, but would embrace all the rights that we have. We believe—just as the cabinet secretary does—that it is vital to promote our rights, but it is equally important that we do so in a way that shows what all our rights are. The cabinet secretary should publish those rights using the power that she has under the 1978 act.
We concede that one of the best things in the bill is the bit to which the cabinet secretary should have regard: schedule 1, which is not concerned with rights but sets out principles with which we are in total agreement.
I leave members with these words:
“In no way do I doubt your good intentions”—
I presume that that was directed at the cabinet secretary—
“in introducing the bill but I feel that it will not help patients in the way you expect it to. A constitution or charter for patients that has the force of direction from your office, and the energy behind it to make sure that patient rights are properly promoted, will achieve what you are seeking to achieve.”—[Official Report, Health and Sport Committee, 6 October 2010; c 3576-3577.]
Once again, those are the words of Dr Richard Simpson.
- The Deputy Presiding Officer:
We move to the debate. Speeches will have to be a tight six minutes.
- Michael Matheson (Falkirk West) (SNP):
I have no intention of quoting Richard Simpson in the course of my speech, even if Ross Finnie chose to do that this afternoon.
The tenor of this health debate is a little healthier than was last Wednesday’s, but yet again we are not unanimous in our position on the bill that is before us. From the debate thus far, there is clear agreement on the importance of patient rights and the need for those rights to be upheld. Our NHS should always ensure that it acts in the best interests of patients wherever possible. Unfortunately, that is not always the case. As we clearly demonstrate in our stage 1 report, the committee was unable to come to an agreed position on whether legislation is the best option to improve patient rights in our health service in Scotland. I am mindful of the sharp divide between those who support and those who oppose the bill. Broadly, those who represent patient interest groups and other interest groups in the NHS favour legislation, and those in the professional bodies that represent those who work in the NHS appear to be strongly opposed to it. That may, in itself, suggest that we have the balance somewhat correct.
I recognise that some members believe that setting out a list of rights in a bill that has limited legal enforceability is not the appropriate way to go. As Christine Grahame said, some committee members see the contradiction in that. Over the course of the evidence that we received at committee, I was not persuaded that, if greater legal enforceability were introduced into the bill, there would be a desire out there to rush to the courts to enforce the legal provisions. The suggestion that including greater legal enforceability in the bill would somehow create a charter for lawyers is well off the mark and somewhat unfounded, on the basis of the evidence that we received as a committee. The cabinet secretary has indicated that she is prepared to look at how the provisions of the bill could be improved at stage 2 to give greater enforceability. I welcome that.
I often deal with complaints from constituents about our health service, but no one has ever come into one of my surgeries and said, “I am here because I want to take our health service to court.” Even if the bill were to provide greater legal enforceability, I suspect that no more of my constituents would rush into my office to say, “I want to take the NHS to court.” In most instances where the NHS has got it wrong, it holds up its hands and says so. Unfortunately, at times there are cases where the NHS is not prepared to do so, which is to be regretted. I believe that that is influenced in part by the fact that at times there is a culture of fear in our NHS; a culture that says that admitting to mistakes leaves the NHS open to potential legal challenge. One of the benefits from the bill could be that we start to address that unhealthy culture, which can exist in some parts of our NHS.
In preparing for the debate, I thought about our experience in the lead-up to the coming into force of the Freedom of Information (Scotland) Act 2002. I remember when the Information Commissioner of Canada came to the Parliament to share his experience of the introduction of freedom of information in his country. He was clear that the issue and challenge was not the coming into force of the legislation but changing the cultural mindset of the public agencies affected by it.
I have no doubt that since the Freedom of Information (Scotland) Act 2002 came into force, many of our public bodies have changed their mindset and their attitude to making information available, and that there has been a significant cultural shift in the way in which they do that. I believe that one of the bill’s potential benefits is that it could help to make the cultural shift that is necessary in the NHS, thereby ensuring that patients’ rights are much more central to the decision making of clinicians and management and the way in which they plan and manage their services.
Jim Elder-Woodward summed up the bill’s importance fairly well when he gave evidence to our committee. In talking about the need to ensure that we have an NHS that is truly mutual, he said:
“If we are to work on the basis of mutuality, each person around the table needs to bring a resource with them. For patients, the resource will be the Patient Rights (Scotland) Bill”.—[Official Report, Health and Sport Committee, 29 September 2010; c 3456.]
That can be provided by passing the bill.
- Rhoda Grant (Highlands and Islands) (Lab):
The only honest way to describe the bill is as a disappointment. It does not do what it says on the tin.
I am certain that everyone in the Parliament is signed up to the concept of improving patients’ rights, so this bill, of all bills, should have been given a fair wind. It is a sign of how short it falls of that aim that the committee could not recommend to the Parliament that its general principles be agreed to at stage 1.
I am deeply disappointed that the cabinet secretary appears not to have taken seriously the committee’s concerns. The real dilemma is whether the bill can be amended so radically at stage 2 that it will improve the situation of patients. I for one am willing to try. If we cannot do that, the bill will need to be voted down at stage 3, because in its present form it would be detrimental to patients. As others have said, the bill as it stands enshrines some current rights but leaves out others. We fear that it would create a hierarchy of rights. Are the ones that are identified in the bill more important than those that are the subject of ministerial directions?
The bill would not provide a remedy for patients whose rights have not been met. No one wants American-style litigation in our health service, but if people are to be provided with a right they must have a remedy in the event that they cannot access it. In its report, the committee suggested something along the lines of mediation, but I am not so sure. If a patient’s waiting time guarantee has been breached, they need action, not discussion.
There are other issues that the bill does not cover. Some of the hardest cases that I have to deal with involve people whose health has suffered or who have lost loved ones because of the actions of clinicians. The current complaints procedure is wholly inadequate in dealing with such cases, because boards and professionals tend to close ranks for fear of litigation or of a doctor being struck off. They do not deal with the issues or respond satisfactorily. The Scottish Public Services Ombudsman cannot help, because it looks just at the process rather than the substance of the complaint.
The only option that patients are left with is to go to law. They are not experts, so they need to find a professional who is willing to review the case, which comes at a cost. They have limited resources to take on the full force of a health board and its insurer in the court system. Needless to say, people are reluctant to do that, not just because of the cost but because they do not know where to start. Such people often come to MSPs to ask them to right the wrong, in the belief that if the state has let them down, it is for the state to right that wrong, but we have no tools to use on their behalf other than mediation, which, frankly, does not work in such cases. I am hugely frustrated by that. It is wrong when all that we can do is offer sympathy. The Stafford hospital inquiry is a pretty sobering example of what happens when complaints are not dealt with properly.
I do not have all the answers, but we need to examine the issue further. One option might be to consider setting up a body along the lines of the Independent Police Complaints Commission, which provides independent scrutiny. That would obviously have a cost, but it might be a better use of the money that has been put aside for a new complaints service.
On the proposed patient advice and support service, the evidence was strong that the current independent advice and support service works well when health boards pay for that service for their patients. The current service is provided by citizens advice bureaux, and it works well by ensuring that patients receive advice on health care and any other issues that might concern them, such as benefits. There is real concern that a new service would stop that joined-up approach and cause patients to have to deal with myriad people when they are possibly not best placed to do so. It is clear that all patients need to be able to access the service, regardless of their health board. Perhaps that should be done on a national basis, with the Government top-slicing the funding rather than leaving the decision to the health boards. When money is tight, health boards obviously will look for savings, and that kind of service becomes vulnerable if it is not protected.
As I said, not all rights are enshrined in the bill. It is clear that legislating for some rights and setting them in stone would be problematic. For example, the waiting time guarantee might change. Services that have no guarantee will not be included. Also, of course, legislation cannot be amended day and daily when patients’ rights change.
Some members are keen on a patient charter, which has merit. An accessible statement of rights and responsibilities for patients would be helpful, but that does not need legislation. Indeed, to make it accessible, we should really avoid enshrining it in legal mumbo-jumbo. The bill could place a duty on the Government to produce a charter that gives patients a clear statement of their rights and responsibilities and the remedies when they are denied.
The only part of the bill that got unanimous support was the health care principles in the schedule. They provide a statement of intent about how patients should be treated when they engage with the health service, and they should be the basis of a new ethos for health care.
We need more than warm words. For the bill to work, it must do something, and if it is to progress into law, it will have to be changed radically. I hope that those changes can be made.
- Nanette Milne (North East Scotland) (Con):
The NHS with which I grew up was a paternalistic organisation in which patients were the passive recipients of treatment that was meted out to them by those who thought that they knew best what was good for them. In hospital, they were talked over by a retinue of people in white coats who assumed that the patient would have no understanding of their medical condition. That approach is clearly unacceptable in the 21st century, and thankfully things have moved on, with patients having rights, including that of being fully involved with the management of their health issues. However, the system is not perfect and patients can feel let down by it. The Scottish Government’s intention to create a fully patient-centred and genuinely mutual NHS is laudable and has widespread support.
The point at issue is whether legislation, as outlined in the bill, is necessary to achieve that goal. From the evidence that was given to the Health and Sport Committee, it is clear that many witnesses believe that it is not. Consumer Focus Scotland noted that patients have rights already, but they are not mentioned in the bill, and as we have heard, the SPSO pointed out that the bill does not extend significantly patient rights in relation to the quality of NHS services that are provided for them in Scotland, and fears that to enshrine them in primary legislation could lead to
“an unwelcome increase in legalism and litigation in disputes between members of the public and the NHS.”
The Law Society articulates a common concern of witnesses, that the bill lacks teeth because it does not include the provisions that are necessary to enforce the principles and guarantees that it contains. The RCN is
“unconvinced that legislation is more useful than a review of how rights and responsibilities are promoted and implemented”
and the GMC is not clear about how those rights that are included in the bill would be implemented, measured and enforced.
It is unusual to have such a weighty body of opinion questioning the need for a bill and doubting the effectiveness of the proposals within it. Mary Scanlon has pointed out that the treatment time guarantee that is set out in the bill is not legally enforceable, and that many people who have conditions that are not included in that guarantee, such as mental health problems and deafness, stand to lose out under the proposed legislation. The list of conditions might be small, but that is no comfort to the patients who are affected. The BMA has serious concerns, which I share, that to place treatment time guarantees into statute will skew clinical priorities, and although I do not always agree with the BMA, I certainly agree that targets should always be based on clinical evidence and not on political imperative.
Finally, there is doubt about the accuracy of the projected costs that are associated with the bill. A number of concerns have been raised about that by organisations, including NHS boards and Citizens Advice Scotland. I worry about added bureaucracy developing around an unspecified number of patient rights officers.
I am not a member of the Health and Sport Committee but, from what I have read about the bill, I cannot see that it is necessary, or even that it would produce the cultural change that the cabinet secretary seeks. Of course, I believe in a patient-centred health service and that patients should have the right to quality treatment whenever they need it within an NHS that has their best interests as its foremost consideration. I also believe that patients should be supported and helped if and when they feel let down by the service.
We need a more open and accessible system of patient feedback in the NHS. Many patients would like to give constructive feedback following a health care experience, but they do not want to do that through a formal complaint. There should be a mechanism to cope with that. However, to set in new legislation what the NHS has been striving to do throughout its existence—namely, to ensure that anything done in relation to a patient takes into account the patient’s needs and that regard is given to the importance of providing optimum benefit to the patient’s health and wellbeing—does not seem necessary to me or to many of the people and organisations that have taken an interest in the bill.
Surely a much better option would be to look again at the patient charter, which was devised by John Major’s Government in 1990 and revised 10 years later by Labour. A strengthened patient charter would be every bit as effective as the bill in improving the promotion and implementation of existing rights and responsibilities for those who use and work in the NHS. Its efficacy across Scotland could readily be judged by Government ministers during their annual review of health boards’ performance. We all want the best deal possible for patients but, along with many others, my party feels that the bill is not the best way in which to achieve that. However, as Mary Scanlon said, we are willing to co-operate fully with the cabinet secretary should she be willing to go down the road of producing a more effective patient charter.
- Jamie Stone (Caithness, Sutherland and Easter Ross) (LD):
To me, the question is, “What are patient rights?” My constituents are patients, I am a patient and the cabinet secretary is a patient—we are all patients, if not now, then sooner or later. So in talking about a truly national health service, with patients requiring diagnosis, receiving treatment and, we hope, being made well, I take a first-principles approach. Accordingly, we should consider what my constituents—the people who live the length and breadth of my vast and remote constituency—approach me about in relation to the health service.
Let me look back over my time as a member of the Scottish Parliament. My first example is maternity services in the far north. I and other Highland MSPs witnessed what was probably the biggest demonstration that Caithness has ever seen when there was a proposal to downgrade the consultant-led maternity service based in Caithness general hospital in Wick. When faced with an increase in the number of mothers having to travel a 200-mile round-trip to Inverness to have their babies, the people of the far north were not having it, and they told us so loud and clear.
A second example is dental services in my constituency. How many times have I raised that in the Parliament? More times than I and, I dare say, the cabinet secretary would care to remember. Sadly, the lack of available NHS dental services for my constituents has been a huge issue for years, and it continues to be one. Going private and paying for a dental insurance scheme is simply not an option for those who are unemployed, the elderly or those on lower incomes. What do they do if no NHS dental service is available? Do they go private or do they go without? Alas, we know the answer. If people do not get treatment, far worse dental problems and associated health problems are stored up for a much more frightening future day.
A third issue that my constituents have contacted me and other members about and asked us to raise in the Parliament is the Scottish Ambulance Service. There are issues such as single manning; ambulances having to be parked up so that two single crew members can double up; and even doctors having to leave their practice area to accompany a patient in an ambulance, sometimes for more than 100 miles to hospital in Inverness.
A fourth example is the patient transport service. There is a lack of availability of the service. Also, as I have argued for long enough, the remuneration system and the associated tax regime—which is not the cabinet secretary’s problem, although in a way it is and very directly so—lead to drivers in remote and far-flung locations pulling out. Those are real problems for patients.
Those are four examples of things that are important to my constituents: access to a maternity service; access to an NHS dental service that will not have X thousands on the waiting list; access to a speedy, properly manned ambulance service when one is needed; and a patient transport service that is not only a one-way service and that does not lead to patients sometimes missing appointments, which is no good for their health and recovery and wastes the time and precious resources of our health professionals.
I am sure that other members could give many more examples of what patient rights are about. They are about a right to diagnosis, a right to treatment, a right to recovery, a right to genuinely local NHS services and a right not to be disadvantaged because of where one lives. I make no apology for the fact that, for more than 11 years, that has been the central theme of all that I have said in this chamber on health matters. In focusing on such issues, I believe, like members from all parties, that I am genuinely reflecting constituents’ rights.
Do constituents come to me and say, “I want my legal rights”? No, they do not. What they very often say—too often—is that they want help and treatment for them, for their loved one or for their neighbour, or they say, “I know that doctors, nurses and health professionals already do their best; I just want to be able to access their services.” As other members have said, if someone has a complaint about the treatment that they are receiving or the lack of it—we all get the occasional complaint—they, I and other MSPs know that we have recourse to the ombudsman, to our local NHS board, to the chair of that board and, indeed, to the cabinet secretary herself. I put on record the helpful and constructive attitude that ministers have taken. By and large, the present complaints procedure works. Yes, as others have said, more advice and a charter could help, but that would be a very different beast from the bill.
I have described the very real expectations of my constituents, which are all about local service delivery and availability, and about not being disadvantaged for reasons of geography and distance. Alas, however well intentioned the bill might seem at first, at this stage it misses the mark and addresses precious little to my constituents.
- The Deputy Presiding Officer (Alasdair Morgan):
I can give the next two members only four minutes each.
- Irene Oldfather (Cunninghame South) (Lab):
My comments concern issues around people who lack capacity, some of which were discussed at the recent meeting of the cross-party group on Alzheimer’s. I associate myself with Mary Scanlon’s comments on the importance of early diagnosis and treatment for those with mental health problems, and I raise the possibility of further, unintended consequences, particularly in relation to those who lack capacity.
There is insufficient recognition that there is a difference between normal best practice in relation to the rights of competent patients and best practice in relation to the rights of patients who lack capacity or who are unable to consent to medical treatment or health care due to a mental disorder, of whom people with dementia are the largest group. I understand the rationale behind rights being enshrined in the Adults with Incapacity (Scotland) Act 2000, but I am concerned that there is a perception that the bill contains some but not all of patients’ existing rights. There is a danger that patients’ rights could become piecemeal and that—particularly for patients who have communication difficulties or who lack capacity—the situation could be difficult to explain. Patients may, rightly, believe that the bill is all encompassing, whereas, in its present form, it is not.
In addition, particularly for that vulnerable group, where there is a significant crossover between health and social care it must be recognised that rights do not stop when someone leaves the general practitioner’s surgery or the acute ward. A one-door approach is essential if we are to avoid confusion among carers and patients about where to go with which part of their complaint. To that end, I ask that, in reshaping the proposals, we consider the inclusion of the charter of rights for people with dementia that the Government has already endorsed.
Connected to that, Alzheimer Scotland has expressed concern that, in limiting the duties of patient rights officers to raising awareness and understanding of the rights of patients only in relation to the rights that patients have under the bill, there is an implication that they will be under no obligation to have knowledge of or to promote and support the rights of patients under the Adults with Incapacity (Scotland) Act 2000 or the Mental Health (Care and Treatment) (Scotland) Act 2003. That could be extremely confusing for carers of people with dementia or other disorders who need to know where to take their complaints about general acute medical care and treatment.
If the patient lacks capacity to make decisions based on information, treatment must be lawfully authorised by a relevant enactment or rule of law. Evidence from the Mental Welfare Commission for Scotland reports that that is not happening, and on-going work continues to lack properly documented procedures.
Rights are meaningful only if one knows what they are and how to claim them. It is essential for those who lack capacity that we ensure fairness and equity in the system. A great deal of work remains to be done to show that the bill can address those priorities, but I feel that incorporating the charter of rights for people with dementia within it would go some way towards assisting matters.
- Elaine Smith (Coatbridge and Chryston) (Lab):
The main problem with the bill seems to be whether it is required at all. However, there can be little doubt that the underlying ethos should be supported and encouraged, and the Scottish Government has rightly recognised the need for the provision of better information for patients, as well as a guaranteed standard of care and reasonable treatment throughout the NHS in Scotland. Making patients aware of not only their responsibilities, which we are often reminded of, but their rights is a positive step forward that ought to be welcomed across the chamber.
It is vital that health care professionals listen to the patients’ cares and concerns, with patients being treated as partners, whose knowledge of their own body and symptoms is respected, rather than as subjects who are just dictated to. I will focus on the example of thyroid disorders in order to highlight the importance of patient advocacy and a need for a change of ethos, as outlined by the cabinet secretary earlier.
Thyroid disorders are a gender issue, as women are five times more likely to suffer from them than men are, and 17 per cent of women over 60 will suffer from some form of hypothyroidism. In its submission to the Health and Sport Committee, Breast Cancer Care suggested that health care should be based on clinical and patient-specific need that excludes all strands of discrimination. Any discussion of rights should, therefore, not ignore the gender imbalance that exists in many areas of health care, such as thyroid disorders. Many very ill people with thyroid dysfunction are not being diagnosed by general practitioners, are on the wrong levels of thyroxine or are on thyroxine but not converting from T4 to T3, and they need advocacy.
Dr Anthony Toft, a world-renowned and highly respected Scottish endocrinologist, believes that it is of prime importance that GPs consider how patients present, rather than simply accepting the results of blood tests. He suggests that doctors should take a whole-picture approach that takes into consideration all the patient’s symptoms and does not rely totally on tests. That is important in the case of a lack of T3. In such a circumstance, the tests show that the T4 is fine, and the GP will insist that there is nothing wrong with the patient’s thyroid function when, in fact, they are gravely ill and getting progressively worse.
Another issue that the proposed patient advice and support service could assist with is generic prescribing. Obviously, we are looking to save money in the health service, but a drug such as thyroxine can vary in strength and quality, depending on the source, and that variation can have a detrimental impact on the health of thryoid patients. Dr Toft therefore also recommends that the same make of thyroxine should be dispensed to a patient, but GPs and pharmacists do not seem to be aware of that. Advocacy is needed in that regard.
The health of many thryoid patients could be much improved if GPs and others listened to them rather than simply depending on tests. That is an area that requires more attention, research and advocacy for patients in Scotland.
Whether or not the bill progresses to the end of stage 3, a patients rights officer could promote the interests of the patient in cases in which they are not being listened to or are too ill to advocate on their own behalf. With or without the bill, we need to start viewing patients as equal partners in our system of health care. As well as ensuring that their views are respected, that could prevent more serious conditions from arising or stop there being lengthy periods of misdiagnosis, which would save the NHS money in the long run.
As others have said, the area of complaints needs to be updated and modernised. Patients not only need clear procedures in order to make complaints; they need evidence that their complaints are dealt with and that effective changes are made and systems modified as necessary. It is vital that feedback be given. As the constituency member for Coatbridge and Chryston, I have heard numerous instances over the years of constituents who are dissatisfied with NHS services but worried that, if they complain, they may receive less favourable treatment.
Overall, our NHS is an excellent service that operates on the principle that people are treated on the basis of health need and not their ability to pay. Any change must be an improvement and in no way detrimental to that ethos, and it must work better for the patients of Scotland.
- Iain Smith (North East Fife) (LD):
I make it clear from the outset that the Liberal Democrats believe that the rights of patients are of utmost importance. They should be clearly set out, and NHS boards must be held responsible for upholding them. However, the issue before us today is whether primary legislation is the right way to go about that.
It is important that the Parliament remembers that primary legislation is not about sending messages but about changing the law of Scotland. It involves establishing legal rights and responsibilities for the people of Scotland and the legal duties and responsibilities of those bodies that serve them. The problem with the bill is that it does not do anything new. It does not extend or improve the rights and responsibilities of the people of Scotland, or the duties and responsibilities of the bodies that serve them.
When we consider primary legislation, we must ask the following questions. First, is there a problem that needs to be addressed? There are certainly issues in relation to improving patient rights and the existing complaints procedures. Is primary legislation the best way to deal with those issues, or can alternative methods be used? Is the existing legislation properly implemented and enforced, or does it need to be amended?
The case has not been made for new primary legislation in this area. Other options are available to the Government and to the Parliament to address those matters.
Let us take the complaints system, for example. The cabinet secretary made much in her opening remarks of the fact that the bill introduces a new legal right of complaint. However, as Ross Finnie pointed out, that right already exists.
- Nicola Sturgeon:
Will the member give way?
- Iain Smith:
I will finish the point, but I will let the minister in if I have time.
Complaints about the NHS are dealt with by the service at two levels. Level 1 is an informal stage, at which local resolution is sought, and level 2 is a formal complaint that involves an NHS internal review. There is then the option of referral to the SPSO. That is covered by key legislation in the Hospital Complaints Procedure Act 1985, which—most significantly—is complemented by directions and procedural guidance from the Scottish Executive that were last updated in 2005. The Government has the power to change the complaints procedure through direction and guidance if it feels the need to do so, which is an important point.
- Nicola Sturgeon:
I want to clarify the point that Ross Finnie made earlier. Will Iain Smith and Ross Finnie accept that the 1985 act does not give patients a legal right to complain? It makes provision for the complaints procedure arrangements that must be in place, but it does not give the legal right to complain that the bill would give.
- Iain Smith:
Well, 11,000 people make complaints every year under the Crown system and, of those complaints, 27 per cent are completely upheld and 33 per cent are partially upheld. There are a lot of people out there who are quite able to use the existing complaints procedure. Some people do not use it, but that is not because they think that there is no legal right to complain; that is myth. It is because they are concerned about the process, they are frightened that it might affect their future relationship with their health professionals or they have other reasons for not doing so.
I will address a couple of other issues that came up in the debate. On the treatment time guarantee, we should remember a bit of the history. The 2007 Scottish National Party manifesto stated:
“Individuals sometimes need to be treated more quickly than the national waiting time guarantees. To ensure this happens we will introduce a Patients Rights Bill to give every patient a legally binding waiting time guarantee appropriate for their condition.”
That was slightly watered down by September 2007, when the SNP introduced its programme for government, which stated:
“We will consult on our proposals for a Patients’ Rights Bill which will bring greater accountability to our health service, give patients more rights and give legal effect to waiting time guarantees”.
The bill before us today states that if a health board does not meet the treatment time guarantee, it must
“make such arrangements as are necessary to ensure that the agreed treatment starts at the next available opportunity”
—in other words, the patient will be put on a waiting list. The board must also
“provide an explanation to the patient as to why the treatment did not start within the maximum waiting time”
—it was because there were too many people ahead of them on the waiting list. The bill does not really extend the existing rights of patients under the current waiting time provisions.
Patient rights are important, but there is always a danger that we will start to pass bills because of what they say on the cover rather than what they say inside. The Patient Rights (Scotland) Bill would be a good thing if it extended patient rights but, as has already been hinted at, there are some serious questions about whether it in fact diminishes those rights. For example, there are existing common-law rights to consent to or refuse treatment; to have adequate information about treatment, side effects and risks, or informed consent; and to appoint a welfare attorney. However, the bill states only that health care is to
“allow and encourage the patient to participate as fully as possible”
and to “have regard to” the need to provide information, and it contains no right to appoint a welfare attorney.
There is a legal right to confidentiality under the common law and the data protection legislation, but the bill states only that health professionals must “have regard to” confidentiality. On human rights, there is an absolute right to freedom from degrading treatment and an absolute right to privacy, but the bill states only that health professionals must “have regard to” the need to provide patients with dignity and respect and the need to respect privacy and confidentiality. It strikes me that, in those areas, the bill diminishes the existing rights rather than improving them. For that reason, we cannot support the bill.
I cannot understand the Labour Party’s position on the bill. In every single speech that Labour members have made, they have argued against the use of primary legislation, yet they are going to vote for it at stage 1. That does not make sense. I hope that they will see sense between now and decision time.
- Murdo Fraser (Mid Scotland and Fife) (Con):
This afternoon’s debate has been helpful in setting out the different positions that people take on the Patient Rights (Scotland) Bill. The position that is taken by the cabinet secretary and her colleagues on the SNP benches is clearly that the bill is appropriate and necessary. The position that has been set out by my Conservative colleagues and the Liberal Democrats is that the bill is inappropriate and unnecessary. The Labour Party’s position is drowning in a sea of fudge.
There is a philosophical question at the heart of the debate: when is legislation necessary? The view that my party and I take is that we should legislate only when necessary and as a last resort. We should not legislate as a gesture or, as Iain Smith said, to send a message. That is what the cabinet secretary said earlier that the bill would do. Ross Finnie made the point very fairly in his opening speech. I find myself increasingly in agreement with Mr Finnie in health debates. Some have observed that, indeed, I am increasingly coming to resemble Mr Finnie. However, I reassure him that that is only a temporary arrangement on my part. I will be as delighted as he will be when St Andrew’s day comes along and I can get the razor out.
It seems to me that legislation should be put through only when it is necessary, when it is required as a last resort, and when we have exhausted all the other possibilities. I do not believe that the bill meets those tests, because what is required by the bill should be happening already in the NHS. The bill will make no difference.
What is singular about the reaction to the bill and the evidence on it from the health bodies is that, as Michael Matheson said, it has been extremely negative. The Royal College of Nursing said:
“There is a need to enshrine patient rights, but we do not believe that legislation is the way forward.”
BMA Scotland said:
“We could do it by publishing a charter, so that patients feel more empowered to address patient rights issues within the context of an on-going episode of care.”
Dr Bill Mathewson from the Royal College of General Practitioners Scotland said:
“I agree with my colleagues.”—[Official Report, Health and Sport Committee, 29 September 2010; c 3439, 3440.]
Others to whom Mary Scanlon referred took the same view. Does the cabinet secretary see the irony that, just a week after we were lectured to on minimum unit pricing of alcohol and told that we should listen to the medical establishment when it comes to health issues, she is now disregarding its opinions on the important issue of patient rights? The Government is taking a pick-and-choose approach.
There has been a lot of discussion about the treatment time guarantee. We have always been nervous about enshrining time limits and targets in legislation. On this occasion, we agree with the BMA, which has expressed concern that the measure would have unintended consequences, distort clinical care and harm patients. Nanette Milne, speaking from medical experience, agreed with the BMA and confirmed what it had to say. We need to be cautious. We are not convinced that there is a need to enshrine the guarantee in legislation. In any event, there is no sanction. What is the point of having a legal right in the bill if the recipient cannot enforce it?
The provision will, of course, come at a cost, as we will need an army of patient rights officers—potentially between 65 and 80 full-time equivalents throughout Scotland—who will take money out of the health budget. We believe that that money could be better spent on front-line services.
There are other flaws in the bill. Mary Scanlon quite properly referred to the lack of mention of those with mental health issues who face extremely long waiting times to be seen. They will not be helped at all by the bill. Other patients, such as those who are waiting for physiotherapy, are in the same boat. Therefore, we have deep concerns about the approach that the cabinet secretary has proposed.
What should be done instead?
- Elaine Smith:
Are patients’ rights not such an important issue that the cabinet secretary should be given the opportunity to amend the bill at stage 2? If it is not amendable, members of Murdo Fraser’s party could then decide not to support it.
- Murdo Fraser:
I hear that point but, to be honest, I have difficulty seeing how the bill could be amended in a way that would make it acceptable to us. It seems to us that there is a better way to approach the matter, through enhancing the patients charter. Mary Scanlon set out that approach. Notwithstanding the cabinet secretary’s rather dismissive words, the patients charter was an improvement in the NHS. It improved the way in which patients were dealt with and their rights to complain. There was a culture change in the NHS at that time, and it was improved by the previous Administration. We think that that is the right way forward.
There is an issue with NHS complaints more generally. Jamie Stone drew attention to that in a fine speech. Last week, I met the Scottish Public Services Ombudsman, Jim Martin, to discuss some issues. The problem in the NHS is that, if people feel that they or a member of their family has had bad treatment, they will want some redress. Those people will not be looking for money or compensation; they will probably be looking for an apology. They will want somebody to say, “We’re sorry. We got this wrong and lessons have been learned.” However, the current system does not allow that to happen and, in frustration, many people end up going to lawyers and seeking redress through the courts. That is extremely expensive, stressful and time consuming, and they are not looking for that. They want a proper complaints system. That is what we should get, but the bill will not give us that, which is why we will not support it.
I am sorry that poor Richard Simpson, who is a robust opponent in committee, has now been exposed as Jackie Baillie’s poodle, and that he will meekly vote for the bill. We and Rhoda Grant say that it does not do what it says on the tin. There is a better way, so members should reject the bill.
- Dr Richard Simpson (Mid Scotland and Fife) (Lab):
I am flattered by Ross Finnie’s repeated quotes from my attempts to ask questions about the bill in the committee.
I think that we all agree that the bill has good intentions, and that we need to improve patients’ rights and how they are managed. Most of the witnesses who gave evidence to the committee thought that drawing together patients’ rights would be valuable. I do not often agree with Michael Matheson, but I agree with him that there was a clear divide between the approach of the health professionals, whom Murdo Fraser quoted at length, and the approach of the patient groups. Those groups clearly indicated a desire to legislate. We should take account of that.
Almost all the witnesses indicated that there are serious problems with the bill as drafted.
- Ross Finnie:
Does the member agree that it is more accurate to say that there was a clear desire to have expressions as set out in the schedule? There was little evidence of anybody wanting a law to go to court with.
- Dr Simpson:
I will come back to that.
A number of members have referred to the Law Society, which pointed out that there are 17 other rights that patients already have that are not set out in the bill. Ten of those are listed in paragraph 43 of the committee’s report. Some of those rights are fundamental and some of them are very complex. Irene Oldfather was eloquent, as usual, when she said that impaired capacity is an important issue that needs to be addressed. Other members have referred to the GMC’s concern that a patient’s right to refuse treatment was not made clear. The Scottish health council and Consumer Focus have expressed doubts about the bill, and we have considerable doubts about it. That is not surprising in view of what Ross Finnie quoted.
The committee clearly enunciated the central paradox of the bill. We want patients to have clearly laid out rights, but section 18 effectively precludes any significant legal action. However, once again, we all agree on that because we do not want lawyers at the foot of the bed.
The lawyers describe those provisions in the bill as not being meaningful. When is a right not a right? If it is enforceable, it is a right; if it is not enforceable, perhaps it is not a right.
Jackie Baillie and others have made clear our preference for powers to be developed and published in a charter of rights. However, perhaps that should be dealt with in a bill that has the enabling powers to produce it. It should also contain provisions on patients’ rights and responsibilities as well as those of staff.
Later sections of the bill deal with the treatment time guarantee. We have considerable difficulties with the guarantee and will seek to amend it. Sections 6 to 10, which introduce the guarantee, present another conundrum. In committee, Ian McKee questioned witnesses repeatedly about the trade-off between clinical priorities and guarantees. When we first debated the subject, I was attacked by the cabinet secretary because I said that clinical priorities must always come first. Her reply was that if a guarantee is not binding, it is not a guarantee, and if it is not binding, will patients not find it meaningless? There is therefore a second conundrum in the bill that we need to address. I say to my Liberal Democrat and Tory colleagues that, although we might not be successful, we will seek to address the conundrum by taking a much more flexible approach to patient guarantees, rather than giving the precise guarantees that the cabinet secretary seeks to embody in primary legislation, which might change.
Others have said that the treatment time guarantee, as it is laid out in the bill, is highly discriminatory. SAMH and others indicated their serious concerns about mental health being almost totally excluded from the bill in relation to treatments such as CBT. However, that is not the only area that faces a problem. Why is the national scoliosis service excluded? Assisted conception, which is a source of considerable delay and problems, is a worry to many patients, so why is it excluded? We need a much more flexible approach in the TTG sections of the bill and we will seek to amend them.
Elaine Smith spoke about issues in primary care. Primary care is not covered by the bill, yet many of the delays in cancer diagnosis relate to the primary care sector, about which there are no guarantees in the bill.
There are many targets in the NHS that are not just for in-patient procedures. NHS Lothian indicated that procedures that are in-patient today might be out-patient procedures tomorrow and therefore subject to a TTG. The situation will be different in different health boards, so there are real problems in not making the TTG provision more flexible.
Turning to the complaints section of the bill, I note that the SNP undertook to introduce no-fault compensation and I know that it is still working on that. That is important in relation to where we are going. It is a pity that it cannot be included in the total package at this point, but I understand the difficulties. We would welcome a much more formal mediation process because, as many speakers have said, patients do not want to enter into a formal complaints procedure; they want something else.
In paragraph 136 of our report, we refer to the example of the complaints system in the Equality and Human Rights Commission’s evidence. It is known as the four Cs and was developed by the state hospital, as my colleague Jackie Baillie explained. That system encompasses and embodies the approach that we all want to see. It includes compliments, which are about positive feedback. It includes comments, which are simply something in passing such as, “The doctor is wearing a wrist watch,” which is against health care-acquired infection regulations; someone in that situation does not want to complain, but they might want to say, “Doctor, you might want to take your wrist watch off,” or to say to the nurse, “You know, the doctor was wearing his wrist watch.” If they see a commode with blood fluids on it—we have lots of HAI reports—they do not want to complain because it might be just about to be cleaned, but they should be able to make a comment. The system also deals with concerns, which are short of a complaint. The four Cs system has changed the culture, which is what we all want to do, and we can try to embody it in legislation, which would give greater formality to the complaints procedure than there is under the 1985 act.
Finally, the bill introduces PASS and PROs. PROs will be expensive and will be a backwards step from the current IASS. However, we heard evidence that the IASS is flawed, is not uniform and has no national contract. That involves many issues that might be worth being embodied in primary legislation. We need to see what we can do on that. I urge the cabinet secretary to suspend the retendering process that is going on, which is damaging the system that is in place. Staff are leaving, and we will lose the volunteers who are associated with the system.
Despite many reservations, Labour will support the bill at stage 1. We offer the Government the opportunity to work together to amend the bill significantly at stage 2. If the bill can be amended to the degree that we want, we hope to support it at stage 3. However, we reserve our position until we see whether the bill can be amended and can meet the serious objections to it in its present form.
We need a charter of rights that apply from the bill and other legislation. We need to consider treatment time guarantees. Huge issues are involved. We are prepared to work with the Government in a serious attempt to make the bill practicable.
- Nicola Sturgeon:
I thank all members for their speeches, the Health and Sport Committee for its work at stage 1 and Christine Grahame for her opening speech. He will not thank me for supporting him, but I thank Richard Simpson for displaying open-mindedness. I remind Ross Finnie, who is normally a stickler for procedure, that part of the job of all Health and Sport Committee members—they do it well—is to scrutinise and ask questions at stage 1. It is rather unfair to quote people’s questions against them in debate.
It is extremely encouraging that everybody has agreed with the principles of strengthening patients’ rights. I think that it is agreed that something needs to be done to improve the current framework. I believe that that should be done through primary legislation. Mary Scanlon said that the bill had no support and she mentioned the BMA, the RCN and the GMC. They are all respected organisations, but they represent providers of health services. She omitted to mention organisations such as Inclusion Scotland, the Rarer Cancers Forum and the RNIB, all of which—as Richard Simpson said—support the bill, as do organisations that represent people who use health services, as Michael Matheson said.
Many members have said that we should achieve the aim by a patients charter. My issue with that—with which Labour agreed to an extent—is that, without legislation, any rights that are in a patients charter can be easily eroded or forgotten. Whether the Tories and their new-found friends in the Liberal Democrats like it or not, that is what happened to the previous patients charter. I remind members that that charter existed when patients routinely waited a year or 18 months for hospital treatment.
- Murdo Fraser:
I am genuinely interested in the cabinet secretary’s argument, but the problem with her proposal is that the bill contains no legal remedies to enforce the rights that she is supposed to be giving. How is what she suggests better than the patients charter?
- Nicola Sturgeon:
I am coming to that point. If Murdo Fraser has patience, he will hear the answer to his question.
I was about to say that it is perhaps not surprising that the Tories—and, to a lesser extent, the Liberals—oppose the bill, because the coalition Government south of the border is removing or at least diluting many guarantees that patients had.
Mary Scanlon said that all that the bill covers should be happening. She is right, but we all know—and, as the Cabinet Secretary for Health and Wellbeing, I am prepared to admit—that although the NHS delivers to those standards in the overwhelming majority of cases, to be frank, it does not do so in some cases. The bill is intended to raise standards for all patients.
The issue has been raised that the bill is not enforceable. We deliberately took on board people’s response to the consultation that they did not want the system of the lawyer by the bedside. I make no apology for that—that is the sign of a listening Government—but it is not true to say that the bill contains no rights of redress. The bill contains the right to complain and to give feedback. There are existing rights to go to the ombudsman, to initiate judicial review and to take action for clinical negligence, if that is appropriate. The bill also legislates for support to help patients complain and to ensure that their rights are met. I think that that is particularly important when it comes to helping more vulnerable patients.
Jackie Baillie made the important point that what patients want when something goes wrong is for the NHS to acknowledge it and to learn lessons. That is why the duty that the bill puts on health boards to respond to and learn from complaints is, in my view, as important as the right to complain itself.
It is absolutely not the case that the bill somehow diminishes rights for patients and removes existing rights. Patients will still have other rights that are set out in other legislation or in common law—the rights in the bill will be additional to those. Some members have mentioned the list of rights identified by the Law Society. Patients will still have all those rights and they will have additional rights. As is always the case, information for patients and staff will include information about all the rights available to patients.
I am not sure whether Irene Oldfather is still in the chamber, but she raised some important issues about patients who lack capacity, which I will certainly reflect on further.
Jackie Baillie said that the treatment time guarantee covers only in-patient and day-case treatment and Richard Simpson made a valid point about procedures moving between the different categories of treatment, but I know that they would both accept that the treatment time guarantee sits within, or would sit within, the overall treatment guarantees that we have in the health service, which, of course, cover all stages of the patient journey.
Rhoda Grant said that people whose treatment time guarantee is not met do not want dispute resolution. She is absolutely right about that, which is why the bill expressly sets out the steps that boards must take in those circumstances.
Elaine Smith raised important equality issues. I tell her that the bill was developed after consultation with and consideration of the impact on equality groups. We will continue to have equality at the forefront of our minds.
- Mary Scanlon:
Can the minister tell me who does not have a right to complain at present? Who will have a new right to complain if the bill is passed?
- Nicola Sturgeon:
The answers to those questions are easy. Right now, nobody has a statutory right to complain and, if the bill is passed, everybody will have a statutory right to complain. That is probably one of the easiest questions that I have been asked in the chamber for some time.
On the treatment time guarantee, I say again that the eligibility criteria of planned or elective care on an in-patient or day-case basis applies to all services, including mental health services, so it is wrong to say that mental health patients will lose out as a result of the bill, but it is right to say that on-going work is required to reduce waiting times for access to mental health services that do not fall within those criteria.
The last area that I will address is the patient advice and support service. I believe that patients need access to support to help them use the health service and to help them complain when things do not go as they expect. The bill builds on the current service but makes some important improvements to the way that that service is run. I believe that it is important to legislate for PASS so that there is no risk of the erosion of such a service. Citizens Advice Scotland said in its evidence to the committee that the bill would make PASS
“statutory, so health boards would have to fund it.”—[Official Report, Health and Sport Committee, 8 September 2010; c 3259.]
Rhoda Grant, Jackie Baillie and others said that PASS could be more restrictive than the current service. I should point out that the current service is funded only to provide health information; it is the fact that citizens advice bureaux provide the service that allows it to provide access to a more holistic service. Of course, potential providers in the future would be able to do the same.
In conclusion, I welcome the debate and I am very open—as I always am—to working with members to bring forward sensible amendments at stage 2 that will strengthen what is currently in the bill. For the purposes of today, however, I ask members to support the Patient Rights (Scotland) Bill and its general principles.