heathcare update - issue 12
The rights approach
The NHS Constitution, has been updated to include new substantive
"legal rights" to treatment within deadlines, though it is not
clear how this will work in practice, or whether a rights based
approach is the best way forward.
With effect from 1 April 2010, the NHS Constitution has been
revised to introduce a legal right to be treated within 18 weeks
(or two weeks for cancer referrals). The 'right' is backed up by
directions to all PCTs and SHAs, requiring them to tell patients
about this right and to take all reasonable steps to meet the
deadlines. They should "consider" meeting travel and accommodation
costs to facilitate treatment at an alternative provider if they
can’t meet the deadlines. However, if there is no reasonable
alternative, there is no provision for any remedy other than an
apology.
The DH recognises the concern that more rights will give rise to
more litigation, but says that this has not really been seen yet.
However, the constitution has only been in place since January
2009, and we'd expect that the more the DH uses the language of
"patient rights", the more complaints and claims there will be,
especially when the only remedy actually offered is an apology, and
tightening budgets make it harder to keep the promises being
made.
Our trust clients expressed concern about the implications of
the new constitution when it was published. Although as yet it has
not had any significant impact upon claims, that is not surprising
as despite considerable efforts by the NHS, the media coverage of
the NHS Constitution, and the level of public awareness, has been
minimal. In our view the moment has yet to come.
This is just one aspect of the wider policy trend to the
consumerisation of public services – the DH guidance on the
reformed and merged NHS and social complaints systems is called 'a
guide to better customer care' and the personalisation agenda can
only accelerate this.
At the same time, there is exquisite political sensitivity to
the issues of allocation of limited resources, and Government is in
no hurry to take inevitably unpopular decisions itself. Even when
reconfiguration of acute services to focus specialists in one
centre may be perfectly valid to manage risk, it is seen as a
costs-saving closure of local services and likely to lead to a
‘save the local hospital’ campaign.
Open debate is not encouraged by a society where asking serious
questions about long term funding of adult social care is met with
a clamour about a 'death tax'!
Patient 'rights' may have some role to play, but we should be
careful of it becoming part of the problem rather than the
solution. Our experience is that patients are most likely to sue
the NHS when their expectations have not been met, however
unrealistic those expectations might have been. Expectations are
continually being inflated, while the arctic financial climate will
inevitably further limit budgets. Managing expectations, and an
open discussion about what the NHS can and cannot provide, is
essential to avoid ever increasing conflict and litigation.
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The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.