Subordinate Legislation
Patient Rights (Treatment Time Guarantee) (Scotland) Regulations 2012 [Draft]
Agenda item 2 is evidence from the Cabinet Secretary for Health, Wellbeing and Cities Strategy on a Scottish statutory instrument that is subject to affirmative procedure. Members have received a cover note on the purpose of the draft regulations, which have been drawn to the Parliament’s attention by the Subordinate Legislation Committee on the grounds that certain matters could have been expressed more clearly, and that there has been a failure to follow normal drafting practice. Members will recall that, at last week’s meeting, the committee considered the Patient Rights (Complaints Procedure and Consequential Provisions) (Scotland) Regulations 2012, which the Subordinate Legislation Committee drew to the Parliament’s attention on similar reporting grounds. I have already written to the cabinet secretary to raise those concerns.
I welcome to the meeting the cabinet secretary, Nicola Sturgeon. She is accompanied by Margaret Duncan, who is head of branch, ministerial support and national waiting times centre sponsorship, and by Francesca Rennie, who is a solicitor with the Scottish Government. I invite the cabinet secretary to make a brief opening statement and remind her not to move the motion, at this point.
Thank you, convener. First of all, I confirm that I have received your letter about the regulations that you considered last week. We are looking at the issues that you have raised and I will respond to the committee as soon as possible.
I thank the committee for the chance to say a few words about the treatment time regulations. As members know, sections 9(1) and 9(2) of the Patient Rights (Scotland) Act 2011 provide that regulations must be made in relation to the eligibility for and the calculation of the treatment time guarantee. The draft regulations make it clear that patients who are eligible for the guarantee will be those who are due to receive planned treatment on a day-case or in-patient basis, and they set out the treatments or services that are to be excepted from the guarantee. They also cover calculation of the treatment time guarantee and specifically set out when the guarantee starts, the periods that will not count, when the patient’s waiting time clock can be reset and when the treatment time guarantee ceases to apply. Those aspects are all modelled on the new ways guidance and, by placing them in the draft regulations, we have made the calculation of the treatment time guarantee very clear.
On the Subordinate Legislation Committee’s comments in paragraphs 9 and 14 of its report, I welcome this opportunity to make the Scottish Government’s position clear. The draft regulations do not make provision for the calculation of waiting times once the maximum waiting time has been breached because section 10 of the 2011 act sets out the actions that boards must take if they make such a breach. As a result, the provisions in the draft regulations with regard to calculation of the waiting time and resetting of the waiting time clock to zero are effectively irrelevant once the treatment time guarantee has been breached. If a health board attempted at that point to reset the waiting time clock to zero, it would have no effect. The Scottish Government considers that that is clear by virtue of the enabling powers, which set out what the regulations must and may do, and also considers that the enabling powers do not permit the draft regulations to set down how the waiting time is to be calculated after the guarantee has been breached.
I also take this opportunity to confirm to the committee my intention, following the Subordinate Legislation Committee’s comments, to amend the definition of “ophthalmic medical practitioner” at the next appropriate opportunity. As that committee agreed, a court would very likely arrive at the intended interpretation of the definition, but I accept that the meaning could be clearer, so I assure the committee that the definition will be corrected sooner rather than later. As I have said, we will do so at the next appropriate opportunity; I am happy to keep the committee apprised of when and what that opportunity might be.
I am happy to answer members’ questions.
Thank you. Do members have any questions?
I was holding back to see whether anyone else wanted to come in, convener.
In regard to draft regulation 4(2)(d), in which
“the patient has decided, rather than to attend an appointment for the agreed treatment outwith the commissioning Health Board area, to wait until the next scheduled visiting practitioner service”,
does that opportunity have to be offered to the patient? If the waiting time is going to be breached, must the patient be offered the opportunity of waiting for the
“next scheduled visiting practitioner service”?
10:15
Yes—the patient would have to be given that option.
Secondly, the word “reasonable” does not appear in relation to the mention of an offer, but I presume that that is understood. There was a problem with Lothian NHS Board—in which I know the cabinet secretary has taken a personal interest—in that the offers that were made were questionable. I will not go further than that, because we have not seen the final report, but an offer of an appointment in Cumbria or Northumbria for a minor procedure might be deemed to be not reasonable. Is there a mechanism for determining what would constitute a reasonable offer? Do patients have recourse if they think that offers are not reasonable?
We intend to make the definition of reasonableness clear in guidance to health boards. The situation with NHS Lothian—as Richard Simpson will be aware—in many cases involved offers not only of appointments in England at short notice, but of only one appointment date. The intention is that two appointment dates be offered.
I am clear that the question of reasonableness is understood implicitly in what we are putting forward, but we must make that clear in guidance so that health boards are clear in general terms about what would and would not constitute a reasonable offer. The fundamental principle is that health boards cannot offer appointments that patients could not reasonably—by any normal standards—comply with, in order that the board can get round legal waiting time guarantees.
That is helpful.
I have one supplementary question. Draft regulation 8 states:
“Where a Health Board is unable to meet the treatment time guarantee within its own area, it must take all reasonably practicable steps to arrange for the provision of the agreed treatment by—”
the provisions in subparagraphs (a), (b), (c) and (d).
I have a problem with that. NHS Lothian previously had a contract for minor procedures with a local private provider, but it moved the contract to an NHS provider in England. That may have been perfectly reasonable from the board’s point of view, but it was quite unreasonable from patients’ point of view. I hope that there will be something on such practice in the guidance, as it is not in the regulations.
Regulation 8(2) states:
“a Health Board must have regard to the importance of securing the effective and efficient use of the health service organisation and resources.”
I would have liked to see a provision that said that we should also take into account patients’ time and resources.
That is a fair point. It is important to remember that the regulations and the treatment time guarantee sit within the context of the Patient Rights (Scotland) Act 2011, which involves the principles and rights that exist for patients. I am happy to take that point on board and to ensure that it is reflected in the accompanying documents.
As there are no more questions, we will proceed to agenda item 3. I invite the cabinet secretary to move motion S4M-02363.
Motion moved,
That the Health and Sport Committee recommends that the Patient Rights (Treatment Time Guarantee) (Scotland) Regulations 2012 [draft] be approved.—[Nicola Sturgeon.]
Do members wish to debate the motion?
I do not wish to debate it, but I have a comment to make.
No, you are too late. Are members content to agree the motion?
Motion agreed to.
10:18
Meeting suspended.
10:19
On resuming—
Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2012 [Draft]
Item 4 is evidence from the cabinet secretary on another draft affirmative instrument. Members have a cover note that sets out the purpose of the instrument and says that the Subordinate Legislation Committee had no comment to make on it. The cabinet secretary is joined by Gillian Barclay, who is head of the older people’s unit in the Scottish Government. I invite the cabinet secretary to make opening remarks.
I will be very brief on this instrument. The draft affirmative instrument reflects the Scottish Government’s commitment to increasing free personal and nursing care payments in line with inflation. The regulations, if approved, will ensure that vulnerable older people continue to benefit from that policy position.
Last year, we increased the personal and nursing care payments for residents in care homes in line with inflation. The regulations will further increase in line with inflation the weekly payments for personal care, which will go up by £4, to £163 per week, and the additional nursing care payments, which will go up by £2, to £74 per week. In line with our partnership with local government, councils will meet the costs of the inflationary increases—which will total around £3 million across all councils—from within their agreed settlement allocations.
The free personal and nursing care policy continues to command strong support not just in the Parliament but throughout the country. I hope that the draft regulations meet with the committee’s approval and receive its support. I am happy to take questions.
Thank you. I invite questions from committee members.
I calculate that the increase is about 2.7 per cent. Is that right?
We used the gross domestic product deflator, which was 2.5 per cent. We applied the GDP deflator for 2012, which is in line with the Treasury GDP deflator for 2012-13.
Costs for care homes will be going up at a rate that is much closer to the consumer prices index or the retail prices index, which will mean an increase of somewhere between 4 and 5 per cent. Have you had discussions with local authorities about their payments to homes, outwith the personal care allowance? The allowance applies to people who are privately funded—it is a welcome measure, which the whole Parliament supports—but there is a growing gap between the charges that care homes are levying and what they are obtaining from local authorities. Have there been discussions about more appropriate inflation of the payments by local authorities?
I will make a few points. First, the use of the GDP deflator is the normal way to determine such matters; there is nothing out of the ordinary in our having done so.
Secondly, I recognise the pressure that the care home sector, like other sectors, is under in the financial climate that we face. The Government works as hard as it can with local authority partners and other sectors to try to manage such pressures.
Local authorities are in the driving seat in their negotiations with the care home sector. Recent negotiations ended with a 2.75 per cent uplift. That will not remove the pressure that the care home sector is under. We want, and are increasingly trying, to involve the sector in all our discussions about how we reshape care for older people—we will come on to that general issue soon—in order to ensure that we provide care in the right place, at the right time, and to ensure that the key players play their part.
I accept that there are difficulties in the sector. We heard from the Royal College of Nursing about a reduction in the number of qualified nurses in care homes, at a time when the level of dependency in homes is increasing. I am concerned that further cost pressures could lead to a further reduction in nursing staff. I know that the cabinet secretary is involved with Social Care and Social Work Improvement Scotland—the care inspectorate—in ensuring that levels are properly maintained.
I am not trying to make a political point when I say that during the first several years of the free personal and nursing care policy there were no inflationary increases in the payments. This Government has rectified that and has been applying inflationary increases. We must acknowledge the better position that that represents.
I am not denying the existence of the pressures that Dr Simpson has described. We work with local government, the care home sector, the NHS and the voluntary sector on the issue. He rightly referred to the care inspectorate, which is just one means through which I am determined—I know that my determination is shared by everyone on the committee—to ensure that standards of care for older people in care homes are of the quality that we expect, and that older people and their families have a right to expect. Similarly, I have asked for inspections of older people’s services in acute hospitals in order to ensure that—notwithstanding the pressures that all those agencies are under—we are securing and ensuring the essential quality of care for older people. I am happy to give that assurance.
Thank you, cabinet secretary. I very much welcome the Government’s approach.
I, too, welcome the Government’s approach. The Government is applying the correct procedure and the correct inflation mechanism, which has always been used, and it cannot be changed mid-stream. I agree with the cabinet secretary on the issue.
I agree with Richard Lyle in his agreement with me on this issue. [Laughter.]
As there are no other questions, we will move to agenda item 5. I invite the cabinet secretary to move motion S4M-02364.
Motion moved,
That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2012 [draft] be approved.—[Nicola Sturgeon].
Motion agreed to.
10:26
Meeting suspended.
10:27
On resuming—