Subordinate Legislation
Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2014 [Draft]
Good morning and welcome to the ninth meeting in 2014 of the Health and Sport Committee. As usual, I ask everyone in the room to switch off mobile phones, BlackBerrys and other wireless devices, as they interfere with the sound system, but I should point out that some members and officials are using tablet devices instead of hard copies of their papers.
Agenda item 1 is consideration of two affirmative instruments, the first of which is the draft Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2014. As is usual with affirmative instruments, we will first have an evidence-taking session with the Cabinet Secretary for Health and Wellbeing and his official. When all our questions have been answered, we will move to a formal debate on the motion.
I welcome the cabinet secretary, Alex Neil, and his official, Gillian Barclay, who is head of unit in the integration and reshaping care division of the Scottish Government, and I invite the cabinet secretary to make a brief opening statement.
Thank you very much, convener. I will be brief.
These draft amendment regulations reflect the Scottish Government’s commitment to increasing free personal and nursing care payments in line with inflation. If approved, they will benefit vulnerable older people.
Last year, we increased personal and nursing care payments to residents in care homes in line with inflation, and the regulations will further increase weekly personal care payments in line with inflation by £3 to £169 per week and additional nursing care payments by £2 to £77 per week. In line with our partnership arrangements with local government, councils will meet the costs of the inflationary increases, which total around £2.45 million in 2014-15. An additional annual amount of £1.5 million was added to the funding for local authorities in October 2012 to cover the additional costs in the current spending review period up to 2014-15.
The free personal and nursing care policy continues to command strong support, and I hope that the draft regulations will receive the committee’s support. I am happy to take members’ questions.
Thank you very much, cabinet secretary. Do committee members have any questions for the cabinet secretary or his official?
I would like to ask a couple of questions. [Interruption.] I am sorry—I am shuffling through my papers. My machine is a bit slow this morning.
With regard to financial implications, the cabinet secretary said that £1.5 million of the additional costs have been budgeted for, but that the cost of the increase is £2.45 million. Who will make up the difference?
Under the agreement that goes way back to the introduction of free personal care, the local authorities will make up the difference.
So the local authorities will have to find that money.
Yes.
As there are no more questions, we move to agenda item 2, which is a formal debate on the affirmative Scottish statutory instrument on which we have just taken evidence. I remind committee members that they should not put questions directly to the cabinet secretary during this session, as it is a formal debate, and that the official may not speak at this point in the proceedings.
Motion moved,
That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2014 [draft] be approved.—[Alex Neil.]
Motion agreed to.
Patient Rights (Treatment Time Guarantee) (Scotland) Amendment Regulations 2014 [Draft]
Agenda item 3 is consideration of a second draft affirmative instrument. There has been a rather slick change of Scottish Government personnel—I am very impressed.
For this item, I welcome back the Cabinet Secretary for Health and Wellbeing, who is accompanied by two Scottish Government officials: Margaret Duncan, head of branch, access support; and Ailsa Garland, principal legal officer. I invite the cabinet secretary to make a brief opening statement.
The draft Patient Rights (Treatment Time Guarantee) (Scotland) Amendment Regulations 2014 will amend earlier regulations from 2012. The main amendments, which will insert new regulation 4A, make provision for periods of time that will not count towards the waiting time calculation where a patient has specifically requested to have their treatment carried out by a specific consultant or to be treated locally.
That has been done at the request of the chief executives of national health service boards, who have indicated that, for a very few patients, it would be appropriate to meet such a request. We do not expect the numbers of such patients to be high, and those cases should be exceptional as NHS Scotland policy is to have patients booked in with a clinical team rather than with individual consultants. We are conscious of the need to ensure that requests for treatment locally do not impact negatively on boards’ planning for service delivery. The amendments make it clear that, as part of the process by which a board will accommodate specific requests for consultants or local treatment, patients will be made aware that their choice will have an impact on the calculation of the waiting time for treatment, and that they must accept that there will possibly be a delay.
We also intend to amend the treatment time guarantee directions to require boards to write to a patient to inform them of the impact of their request on the waiting time calculation, and to include in their patient administration systems details of why it was reasonable and clinically appropriate to meet such a request. That will enable the local audits to review the use of such periods of unavailability and ensure that they are not being applied to deal with local capacity issues.
The draft regulations will make some other amendments to the 2012 regulations. In 2012, we gave a commitment to review the exceptions to the treatment time guarantee, and I am pleased to say that the draft regulations make amendments to remove certain exceptions. The exception for treatment of injuries, deformities or disease of the spine by an injection or surgical intervention will be removed from 1 April 2014, and the exception for designated national specialist services for surgical intervention on spinal scoliosis will be removed from 1 October 2014. That means that more treatments and services will be subject to the treatment time guarantee.
Finally, we have also amended the regulations to clarify the definition of “ophthalmic medical practitioner” to address a comment made by the Subordinate Legislation Committee in March 2012 during the passage of the 2012 regulations.
I am happy to answer questions.
Thank you, cabinet secretary. Do members have any questions?
First, I welcome the reduction in the number of exceptions for spinal problems. It is appropriate that certain divisions of service delivery are not exempted, because they are, after all, national services.
I also welcome the other change that has been made. The cabinet secretary will remember that Audit Scotland’s report, “Management of patients on NHS waiting lists”, which looked at the situation in NHS Lothian, also strongly featured NHS Forth Valley. That board had a significant number of patients who were being designated as socially unavailable, but that was happening because patients were choosing to stay with their local consultant rather than travel.
It seems that the amendment tackles that problem, but I question slightly the cabinet secretary’s comment that he does not expect a significant number of patients to make such choices. The 12-week treatment time guarantee has yet to be met by the majority of health boards, and they are experiencing increasing difficulties from the pressures that they are under.
That said, offering patients choice seems very appropriate. If I do not want to travel to the Golden Jubilee hospital in Clydebank or to a private hospital outwith my area because I wish to stay with my local consultant, that is a perfectly reasonable choice to make.
Dr Simpson, I remind you that this is an opportunity to ask questions. I am happy for you to continue, but there will be an opportunity to debate the regulations after questions have been asked. I must ask you to come to a question.
I am just about to do so.
Will the specifics of our very complex coding system allow a patient to make such a choice and allow a board to offer it, provided that there is no long-term loss? That had previously been the problem with the very simple abeyance system that was being gamed. Will the patient be offered that choice if the board is unable to meet the request for capacity reasons or because of holidays, a consultant being sick or an important member of the team being off?
We should make a distinction between the provider not being able to meet a particular deadline—for example, because a consultant is ill—and the situation that we are describing, in which the patient makes a proactive and conscious decision to request that they be treated locally rather than go to, say, the Golden Jubilee. In the latter case, the patient obviously has the right to do that, and we agree that that is absolutely appropriate.
However, it is important that two things are done. First, the choice should be recorded, and we are making it a requirement that, in such situations, the board writes to the patient to explain the impact of the patient’s decision to exercise that option. Secondly, the records need to show exactly what has happened.
Looking back at the Auditor General for Scotland’s report on what happened in NHS Lothian and NHS Forth Valley, I think that it is clear that the suspicion, particularly in Lothian, was that unavailability—which was called social unavailability at that time; we have now redefined the terms—was being abused by the board. We are deliberately building in systems to try to ensure that there is no abuse by either the patient or the board.
Just to be clear, you have said that the patient has to make a proactive choice, but at what point are they required to make that choice?
Normally, the patient would be offered an appointment for their treatment. For example, a board would write to a patient and offer them an appointment for a cataract operation at the Golden Jubilee on Friday 10 October. The patient would then get in touch with the board and say, “I really don’t want to go to the Golden Jubilee; I would much prefer to be treated locally”, or they might even want to be treated by a named consultant in the Golden Jubilee.
In that case, the board would withdraw the original offer and make a new offer at the earliest possible opportunity either for the local hospital, if that was the patient’s choice, or for treatment by the named consultant at the Golden Jubilee, if that was requested. The board would then write to the patient—I expect that it would advise the patient verbally first of all, but it must also write to the patient in black and white—and make it clear that it was their choice, and that they would have to wait a bit longer for the procedure because they wanted it done locally or, indeed, by a named consultant. As the systems, too, will reflect that, it is hoped that there will be no opportunity for a repeat of the NHS Lothian situation.
Richard Lyle has a supplementary. However, Rhoda Grant caught my eye first.
My question is on the same point.
So is Rhoda’s.
I am not so delighted with the change. In the area that I cover, it is not always a choice for patients to travel that far from home. People are travelling huge distances to access health services. They are being offered out-of-board appointments, and if they do not take them, their waiting time guarantee is halted.
That is a difficulty, especially for elderly people who might want to bring a carer with them and who might not be able to take the appointment unless the health board pays for that carer. It is also difficult for people who have young families and associated caring responsibilities to be removed from their families for that period of time.
We are talking about huge distances. If we give someone from Wick an appointment at the Golden Jubilee, we are almost asking them to go to a different country, and my concern is that a patient’s waiting time guarantee stops when they are offered an out-of-board appointment. What steps will you take to monitor the length of time people are waiting? People are used to being treated in their board area and dealing with the distances that they already travel.
First, in the Highlands and Islands—and particularly in the islands—much of the treatment, especially more complex operations, is already performed and many appointments already happen out of board. The Western Isles normally orientate towards Glasgow hospitals, and the northern islands towards Aberdeen.
That is correct, but people in the islands are often allowed to take a carer with them and pay reduced fares. That is not the case for Highland patients.
10:00
This is where the word “reasonable” comes in. Clearly, the offer has to be reasonable. If somebody were unable to travel to another board area because they needed to take a carer with them and, for whatever reason, that could not happen or it was not offered, that would not be reasonable. A reasonable offer has to take into account such extenuating circumstances, within reason.
At the end of the day, we are trying to ensure that the time from referral to treatment is a maximum of 12 weeks, and the whole thrust is to work with patients to ensure that that happens. On occasion, a patient will, for whatever reason, decide that they do not want to go to Edinburgh to have a procedure done within 12 weeks and will rather wait for another two or three weeks to get it done at Raigmore hospital.
As I think I mentioned at my previous appearance before the committee in another context, the analysis shows that 99 per cent of those who are not dealt with within 12 weeks are dealt with within 15 weeks. People will make that choice. At the end of the day, we are a national health service and, right from day 1, we have made it absolutely clear that, when there is pressure in one board area, the treatment time guarantee will apply to the use of facilities elsewhere in the national health service in Scotland. I think that that is a reasonable proposition in return for the 12-week guarantee.
Will you monitor how often that happens? I am concerned that, if the measure is in legislation, those people will not appear in the statistics as having had their 12-week guarantee breached, because their time will have been stopped. I understand that it is good to get people treated quickly, but I have a concern that the provision might be a back-door option to let people wait a long time.
No. If a patient does not get a reasonable offer for treatment within the 12 weeks anywhere in Scotland, that is a breach. However, if we say to a patient that they can have their cataract operation done at the Golden Jubilee hospital but that it cannot be done within the 12-week period at, say, Raigmore, and the patient refuses that, that is not a breach, because as far as the legislation is concerned we have offered the treatment within the 12-week period.
So you will not be monitoring that.
We already monitor it. That is why I can tell you that 99 per cent of those who are not treated within 12 weeks are treated within 15 weeks.
Yes, but as that will not be considered a breach, you will not monitor the number of people who feel unable to go away from home and who want a local appointment.
No. We monitor it all and have statistics for every eventuality. The way in which we collect the statistics means that the data can be cut in many different ways, including that one.
Okay. I feel a raft of parliamentary questions coming on about that.
Just write and ask me what you want to know. That will save you going through the parliamentary question process.
Although Rhoda Grant has made absolutely reasonable points, I feel that we are morphing into the debate instead of having focused questions.
Richard Lyle has a supplementary.
I want to clarify Dr Simpson’s comment about the boards deciding all this. I take it that the patient will make the choice and that the regulations will actually give the patient more choice and control. The patient will decide where they want to have their operation and who they want to do it. Furthermore, contrary to what was suggested a few moments ago, everything will still be counted.
I do not want to go down the road suggested by Mrs Thatcher when she said that she would have an operation when she wanted it, where she wanted it and done by whom she wanted to do it. Frankly, if every patient took that attitude, we probably could not meet a 30-week guarantee, never mind a 12-week guarantee. If a patient makes a reasonable request for reasonable reasons to have a procedure done locally or by a named consultant, we should try to accommodate that. The quid pro quo is that we cannot always do that within 12 weeks. If we can meet the request within 12 weeks, we will of course do so, but the patient loses the 12-week guarantee if they make that decision.
But at the end of the day, it is the patient—
It is the patient’s choice.
Yes. The amendment makes it the patient’s choice, not the board’s choice.
Absolutely. In this case, it is the patient’s choice.
Thank you.
This is not—
Hang on a second, Richard. If you have a focused question for the cabinet secretary, I will take it, but there will be an opportunity to make any points that you wish to make in the debate that is to follow. Is it a question for the cabinet secretary?
It is just a question to get further clarification. The policy note that we have received states:
“Before agreeing to requests for specific practitioner or specific location, the Board must take account of the patient’s health and wellbeing and whether it is reasonable and clinically appropriate to offer an alternative appointment. This is to ensure that Boards’ policy and planning for the delivery of services are not negatively impacted.”
The patient does not have an absolute choice; the board still has to decide whether it is appropriate.
Are you asking a question?
Is what I have suggested correct, cabinet secretary?
Yes. The caveat is that there must be no major impact on service provision, because we have to think of all patients, not just the one who makes the request. However, I think that such cases will be few and far between.
Thank you. That clarifies the position.
My question is technical, convener; it is not one for the debate.
What will happen if a person who is made an offer does not accept it because they feel that there will be a better outcome? The board will write to them and say, “Here’s the offer and here are the consequences”—in other words, it will state that the time period will be extended to, maybe, 15 weeks. When that letter comes in, must the individual confirm that they accept that condition or is it a done deal given that the health board has written to them, pointing out the consequences?
It really is a done deal. We are not requiring the patient to write back to confirm anything because, by that point, they will already have indicated their preference to the health board.
Right, but when they understand that there will be a time lapse, will they need to confirm that they accept that, or is it a fait accompli?
Ailsa Garland will give the legal position.
Ailsa Garland (Scottish Government)
It is a staged process. If the patient does not accept the original offer, the board has to decide whether the patient’s health and wellbeing justifies an alternative. Part of that process is that the patient has to accept that there is going to be a period that will not count towards the waiting time because of the change of either consultant or hospital.
That is what I wanted to clarify—I understand it now. Thank you.
As there are no more questions, we move on to the formal debate on the affirmative SSI on which we have just taken evidence.
Motion moved,
That the Health and Sport Committee recommends that the Patient Rights (Treatment Time Guarantee) (Scotland) Amendment Regulations 2014 [draft] be approved.—[Alex Neil].
Does any member wish to contribute to the debate? I have to say that I am somewhat surprised that no one wants to do so, given the earlier thirst to put questions to the cabinet secretary. Let me indulge myself by raising two debating points that I think are interesting.
First, the Parliament has just passed the Public Bodies (Joint Working) (Scotland) Bill, which deals with the integration of health and social care. I thought that my colleague Rhoda Grant pursued a really appropriate line of questioning when she asked what a reasonable offer was and mentioned the need to ensure that carers assessments are carried out and that carers support individual patients in travelling to wherever the offer is made. I hope that the integration of health and social care will mean that that will happen more seamlessly and that it is less likely that inappropriate offers will be made. That might be an example of the Government working in a joined-up fashion.
Secondly, there is quite a differential between urban and rural areas. I know that because the Public Audit Committee examined the issue in detail when we looked at the management of waiting lists, waiting times and guarantees. After identifying that waiting times and pressures in the system were, for a variety of reasons, starting to build up at the Western infirmary, NHS Greater Glasgow and Clyde put surgical capacity into the Southern general hospital to mop that up. Many patients decided to vote with their feet and wait for their named consultant and for their surgical procedure to be done at the Western infirmary, despite the fact that the Southern general was just down the road. Geographically, the choice was far more convenient than the choices that patients in rural areas have to make, and it is important to realise that there is a geographical split in patients’ expectations of what constitutes a reasonable offer.
The big issue for NHS Greater Glasgow and Clyde was not what was happening, but that 13 different computer systems were not recording properly what was happening. I hope that the situation has been resolved. I just wanted to put that on the record for the cabinet secretary as none of my colleagues wanted to use this opportunity to debate the matter.
Have I sparked any other contributions? I see that no other members wish to comment, so I ask the cabinet secretary whether he wishes to sum up.
I do not think that it is necessary. I hope that I have articulately explained the situation.
Motion agreed to,
That the Health and Sport Committee recommends that the Patient Rights (Treatment Time Guarantee) (Scotland) Amendment Regulations 2014 [draft] be approved.
I thank the cabinet secretary and his officials for attending.
10:11
Meeting suspended.
10:11
On resuming—
National Health Service (Superannuation Scheme) (Scotland) Amendment Regulations 2014 (SSI 2014/43)
We move to item 5, which is consideration of five negative instruments.
Although no motion to annul SSI 2014/43 has been lodged, the Delegated Powers and Law Reform Committee has drawn the Parliament’s attention to it. Details of its comments can be found in the papers for today’s meeting.
As members have no comments, does the committee agree to make no recommendations on the regulations?
Members indicated agreement.
Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2014 (SSI 2014/57)
No motion to annul SSI 2014/57 has been lodged, and the Delegated Powers and Law Reform Committee has made no comments. As members have no comments, does the committee agree to make no recommendations on the regulations?
Members indicated agreement.
We are speaking with one voice.
National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2014 (SSI 2014/61)
No motion to annul SSI 2014/61 has been lodged, and the Delegated Powers and Law Reform Committee has made no comments. Are there any comments from members? My briefing tells me that I can move on, assuming that there are no comments, but I have learned with this committee to assume nothing.
As members have no comments, does the committee agree to make no recommendations on the regulations?
Members indicated agreement.
Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 (SSI 2014/65)
No motion to annul SSI 2014/65 has been lodged, and the Delegated Powers and Law Reform Committee has made no comments. As members have no comments, does the committee agree to make no recommendations on the regulations?
Members indicated agreement.
Community Care (Joint Working etc) (Scotland) Amendment Regulations 2014 (SSI 2014/66)
No motion to annul SSI 2014/66 has been lodged, and the Delegated Powers and Law Reform Committee has made no comments. As members have no comments, does the committee agree to make no recommendations on the regulations?
Members indicated agreement.
10:15
Meeting suspended.
10:16
On resuming—