Public Audit Committee

Meeting date: Wednesday, January 29, 2014

Official Report 608KB pdf

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Section 23 Reports

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“NHS Financial Performance 2012/13”

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“Management of patients on NHS waiting lists—audit update”

I reconvene the meeting and welcome Paul Gray, director general for health and social care at the Scottish Government and chief executive of NHS Scotland, and his colleagues. I believe, Mr Gray, that this is your first appearance at a committee of the Scottish Parliament since your new appointment. I congratulate you on your appointment. An immense challenge is ahead of you, given some of the issues involved. The job and its responsibility are of significance to every individual in Scotland and I know that you will be excited at the prospect. I believe that you wish to make an opening contribution.

Thank you, convener. I appreciate your words of congratulation. It is a privilege, a challenge and a real responsibility.

I am grateful for the opportunity to discuss the two Audit Scotland reports “NHS Financial Performance 2012/13” and “Management of patients on NHS waiting lists—audit update”. As you said, this is my first appearance before the committee in my new role. I am very pleased to have the support of John Matheson, who leads on finance; John Connaghan, who leads on performance, delivery and workforce; and Dr Aileen Keel, who is our deputy chief medical officer. I assure the committee that we take these sessions very seriously indeed, and I will feed back the key issues raised today to the chairs and chief executives of NHS Scotland boards.

The report “NHS Financial Performance 2012/13” helpfully acknowledges that the NHS managed its overall finances well in the short run and that, for the fifth year running, all boards achieved their financial targets. I also welcome the short key messages document, which I found very helpful. It includes a number of important recommendations that set out areas for further improvement.

However, I want to assure the committee that I am not by any stretch complacent. At a previous meeting, the committee referred to exhibit 15 in the report, which shows areas of significant progress but also a number of areas where we must continue to improve. Should the committee wish, we can say more about what we and the boards are doing to secure that continued improvement.

The public sector faces pressures—demographic trends alone make that clear. Our significant commitment in the NHS to improvement and service redesign forms part of our response to those, as does our approach to the integration of health and social care, which of course is the subject of legislation in the Parliament.

Overall, the NHS has delivered a strong financial performance that reflects effective financial planning and close partnership working between the Scottish Government and the boards. However, we always want to do better and we will work closely with Audit Scotland to address the recommendations in the report, which we are happy to discuss further if the committee would find that helpful.

I also welcome the report “Management of patients on NHS waiting lists—audit update”, which clearly highlights significant improvements in the recording, monitoring and reporting of waiting times since Audit Scotland’s previous report in February 2013. A significant majority of the recommendations covered by the previous report and by reports by this committee and internal auditors have been implemented. There remain a few outstanding actions in a couple of boards that relate to information technology upgrades. For example, NHS Highland will change to the TrakCare patient administration system this year.

As the committee will be aware, our work on waiting times follows one of the most significant audits of public services ever carried out. Millions of records were scrutinised over a two-year period by Audit Scotland and internal auditors. I want to ensure that the people served by NHS Scotland can have confidence in our management and reporting of waiting times. I therefore assure the committee that we will not lose focus on that important issue.

Thank you.

What is the purpose of your targets and what status do they have? For example, what is the point of your HEAT—health improvement, efficiency and governance, access to services and treatment—standards?

I will ask John Connaghan to come in on that in a moment. There are three purposes. The first is to ensure that boards are clear about the performance standards that are expected of them. The second is to stretch—they are not there as an indicator of what is happening; they are stretching. The third, and in some senses most important, is to give the public and the Parliament information with which they can confidently assess the performance of the NHS. It is important that we maintain confidence in the NHS.

In “Management of patients on NHS waiting lists—audit update”, we can see that in September 2013 not one health board in Scotland met the target of no out-patient having to wait more than 12 weeks for their first appointment. Where is the confidence when no single health board meets your target?

The point of having a target is to get health boards to move towards it. I ask John Connaghan to give the latest position on out-patients. It is an important matter.

I reassure the committee that we take targets seriously. They are something for the NHS to aim for and then deliver continuously and sustainably.

The committee should be aware that Scotland has made tremendous strides over the course of the past 10 years. The 12-week out-patient target has been with us for some time—at least 10 years. When we started to look seriously at waiting times, out-patient waits of a year and a half, two years or three years were not uncommon. Over the past few years, we have given the NHS additional targets, one of which is the 18-week referral-to-treatment target. That is an all-encompassing target and it includes an element of out-patient waits. When we introduced it, we gave some thought to whether we needed an additional target for out-patients, but we decided to keep it because it would give us a handle on the entire cohort performance, if I can put it in that way. If I was recommending that target to the committee today, I might want to consider whether we should attach a small tolerance to it.

11:15

However, leaving that aside, I note that Scotland is performing at 95 per cent against that target. Is that good enough? The answer is clearly no. Our ambition is to reach 100 per cent, so that everyone has an offer of an out-patient appointment within the time period. If you want, I can say a little more about what we are doing with boards to redress the situation.

Mr Gray used the word “confidence”. Apparently, targets are set to give the public confidence in the way in which the NHS is performing. There is a target for accident and emergency, yet NHS Tayside is the only major mainland health authority in Scotland that is meeting it. Many areas of Scotland can have no confidence, to use Mr Gray’s term, in relation to the 12-week target. As far as accident and emergency is concerned, if we leave aside Orkney, Shetland and the Western Isles, only people in Tayside can have any confidence in your targets. In the rest of Scotland, that does not apply.

I think that you are referring to the position over the course of winter 2012-13, when Scotland had a relatively tough winter. We recognise the pressures in relation to performance that were brought to Scotland by increased incidence of norovirus and a significant increase in respiratory illness.

What have we done since the statistics were brought to light more than a year ago? We have worked with boards and partners such as the College of Emergency Medicine to produce a much better and more robust plan for this winter. I think that, if we were to look at the situation a year hence and reflect on this winter, we would find that our planning had been much better, that there was much more confidence in the system and that the standard had been maintained. I look forward to seeing what the statistics for the quarter that ended in December show us in relation to that when they are published at the end of February.

Okay. You are suggesting that, when Audit Scotland reports on the subsequent year, we will see a list of health boards that met the target for no out-patient to wait more than 12 weeks for their first appointment, instead of a list of health boards that did not meet that target.

That is certainly the plan, convener. We now have detailed—

Sorry, but I assume that it is always the plan to meet the targets. I am not asking what your plan is; I am asking whether that will happen.

We already know that some of that change is happening. I return to A and E, some statistics on which are already available in the public domain. A survey that was conducted by some of the national press in the past month shows that we have seen a significant increase in performance in the NHS this winter, with a large reduction in the number of patients breaching the target and many more boards now reaching it. We set out our ambition for the figures for accident and emergency to reach 95 per cent by 2014, and I am confident in saying to the committee that the next time you look at the subject, you will see that the statistics have improved significantly.

You mentioned a survey that was done by the national press.

Yes.

Have you done a survey?

We obtain weekly management information reports from boards, and we have them validated. We do not normally provide those reports to the public until they are validated and published as part of the statistical protocols agreed with ISD Scotland. Those statistics are published on a quarterly basis—they will be published next at the end of February.

Mr Gray, legislation is now in place on treatment time guarantees. The Parliament passed that legislation. What is its purpose?

The purpose of the legislation, among other things, is to state clearly the will of Parliament in relation to the matter that it has considered.

And you implement the will of Parliament.

That would be my duty.

So it is your duty to implement the will of Parliament. If we look at the will of Parliament to give a guarantee to all eligible in-patients that they will be seen within 12 weeks, why is it only in the NHS Greater Glasgow and Clyde, NHS Lanarkshire, NHS Orkney, NHS Shetland and NHS Western Isles areas, along with the Golden Jubilee hospital, that that legal guarantee has been met, while in the rest of Scotland the legal guarantee is not met by the vast majority of boards?

The boards are working towards meeting the guarantee, convener. I entirely accept the point that they are not yet doing so. It is a legal guarantee and the boards are expending considerable effort to ensure that they get there. I revert to my point about targets: they are meant to be stretching. If a target was set that everybody met on the first day, it would scarcely be a challenge. I take seriously the position agreed by Parliament that there ought to be a 12-week treatment time guarantee. That is another issue that we not only discuss with boards as a matter of routine but draw to their attention at both chairs and chief executives meetings. John Connaghan and others responsible for performance management monitor that regularly. It is a target that I judge ought to be met, and we are working towards that.

You rightly say that targets are stretching and challenging. You also say that you are working towards meeting that target and that the legal guarantee is a target towards which you should be working. However, there is a difference between a target and a legal guarantee. A legal guarantee is far more than a target. It is enshrined in law that people have the legal right to be seen within 12 weeks if they are an eligible in-patient. That legal right is not being met, so you are not fulfilling the will of Parliament, the boards are not implementing the will of Parliament, and patients across Scotland are not having their legal entitlement observed, guaranteed or implemented. Is not it a farce that they have a legal right and you can ignore it?

We are not ignoring it, and I absolutely want to assure the committee that we are not ignoring it. We are working towards it. I accept the points that you make, but John Connaghan can tell you more about what we are doing to get ourselves into a better position on that.

The Parliament also made its position clear on how it thought that that legal guarantee ought to be implemented and the redress that was available. We work within that and seek to give the patients of Scotland confidence that we are working towards that. I emphasise that we are also meeting that 12-week target in many cases—it is not that there is a shortfall of tens of percentage points. However, I make no claim at all that we are meeting it altogether at present.

You say that you are working within the redress. What is the redress if the guarantee is not met?

Ultimately, patients could seek judicial review if they wished. Patients also have access to a means of raising their case with the board in question, but John Connaghan will give you more detail on how we are working towards that and on the principles that we are adopting.

Before Mr Connaghan explains how you are working towards that, I would like to pursue that point about redress. If you have deep pockets and the money to go for judicial review, you might just possibly have some success.

However, if you are poor, if you have limited resources and if you do not have the knowledge, the confidence or the financial wherewithal to go for judicial review, the message is, “Tough—there is nothing that you can do.” So the rich, the articulate and the confident will be able to pursue some redress but the rest of the country can just go whistle as far as redress is concerned.

No, convener. I take your point, but I can only work within the legislation as it is presented in Parliament. I do not hold the view that the poor can go whistle. One thing that I have made absolutely clear since I started in this job is that tackling the persistent health inequalities in Scotland is an absolute top priority for me. I believe that it ought to be, and is, a top priority for the NHS, and I believe that it ought to be a top priority for the wider public sector. I accept your point about the fact that we are not meeting the target. I do not accept your point that I believe that the poor can go whistle—I believe quite the opposite.

Okay. If someone is poor and living in fairly distressed circumstances and the guarantee is not met, what redress is there?

They would be able to approach the board and seek confirmation that their case would be handled as quickly as possible. They could seek redress or access via their MSP, or they could go via their local councillor. Those options are available.

No, no. The committee members are all MSPs, and I know that I and each of my colleagues on the committee have taken up cases with health boards. I know the limitations of that. First, you will not give us any information unless the patient confidentiality forms are signed. That is perfectly understandable, but we have to go through that authorisation process, which can take time.

We know that we can ask and inquire; we know that we cannot order you. I cannot write to you or to the chief executive of a health board and say, “Here is the legal guarantee. I want you to implement it.” We do not have that power. In a sense, you are putting another obstacle in the way of patients. Why should they have to come to me to get you to implement their legal right?

They should not have to, Mr Henry. They should not have to.

You say that people can approach the health board. What statistics do you have on the number of people who have complained about their legal right not being met and who have then had that legal right implemented?

Clearly, if people have not had their legal right met, they will already be over the 12-week treatment time guarantee. I do not have the statistics with me. I will find out what statistics are available and I will be happy to present such statistics as we have to the committee. I stress to the committee that my priority is to get everyone treated within 12 weeks. That is my priority.

I understand that. I understand your personal commitment and I know from the many tasks that you have carried out in the Scottish Government where your passions lie. There is the work that you have done in relation to people living in poorer communities, for example—your work on tackling poverty and deprivation. I do not doubt your commitment for a moment. I am asking about what happens if someone’s legal right as regards that 12-week treatment time guarantee is not met. What is being done? It is not a target, it is not an aspiration, it is not a hope and it is not a personal desire—it is a legal right that is not being met. What is being done? If a legal right is not immediately implemented, what is the point of having one when nothing can be done to achieve it?

As I said, we can only operate within the boundaries set by the legislation that is passed by Parliament. I ask John Connaghan to give you some detail on what we are doing to ensure that we meet that guarantee.

The duty on boards is that, if they cannot make an appointment for treatment within 12 weeks, they have to offer the next available appointment. We need to look at the general performance of the NHS in that respect. It has come a long way. The waiting list is now half what it was 10 years ago. We have 50,000 people on the waiting list, but 10 years ago, we had between 110,000 to 112,000 people on the waiting list, so we have come a long way.

The NHS has been set progressively tougher targets by the Parliament. The targets are the toughest in the UK and I do not see anywhere else in Europe that is operating to the same level. We can supply that data to you if you want—it is from a recent study by the Office for National Statistics.

11:30

Where are we currently against the 12-week treatment time guarantee? Scotland is achieving 98.5 per cent of it. To put it in context, we have a 1.5 per cent gap. I take seriously the point that we should achieve 100 per cent. Currently, we are working with two boards that have a gap that is a bit bigger. One is NHS Lothian, but I think that we have discussed at some length why it is in that position. It currently has a recovery plan in which it is investing over £20 million per annum to achieve much better performance for patients. The other is NHS Grampian, which is investing a similar amount to put in some additional theatre capacity. Those things take a bit of time, but Grampian’s additional theatres should be open shortly.

If the committee looks at the position in a year’s time, it will see a significant change in the overall cohort performance as we move from 98.5 per cent towards eventual delivery of the target of 100 per cent.

I do not doubt for a moment that there has been huge progress in the NHS in Scotland; nor do I doubt the commitment and dedication of the staff. They often perform miracles, given the circumstances in which they work and the challenges that confront them. What is achieved is fantastic and something of which we can all be proud. That is why I think that there is support across all the parties for the NHS in Scotland.

I suppose that, in a sense, I am questioning the wisdom of Parliament in introducing legislation that has been ignored and whose provisions have not been met. We begin to question the sanity of politicians when they bring in laws that can be blithely ignored and are seen largely as targets. We can have targets, or we can have laws and guarantees. If we have a law, it should be implemented. Will the legal treatment time guarantee be met 100 per cent right across Scotland? If so, when?

We need to think about the delivery of that guarantee of 100 per cent when we might have some unusual circumstances. Let me give you an example. The 12-week target is pretty tight, but we have set out our stall to achieve it. However, if a consultant is due to treat a patient on a Friday within the 12 weeks but the consultant is sick and no one else can treat the patient, we will automatically trip into a failure.

I can understand that situation in certain respects. To achieve 100 per cent, we probably need to move the threshold back so that we have a bit of leeway. We will certainly want to do that and will work with boards to achieve that over the course of the next couple of years.

Therefore, at this stage I do not think that I would want to venture an absolute answer to you, convener. However, I would probably refer you to the plans that we currently have in place to achieve the target on a sustainable basis, notwithstanding odd events such as sickness.

I actually understand your caution. I also understand your frustration, because you are saying to me that you cannot give a 100 per cent guarantee that the law will be implemented. In a sense, that poses questions about the stupidity of politicians in making laws that cannot be implemented. That is not your problem; that is our problem. We have a law but you are telling me that you cannot give an absolute guarantee that it will be implemented for everyone in Scotland.

Sorry, but I must clarify the distinction that I made. I am cautious about giving you a guarantee today, but I think that in the fullness of time I might be less cautious about giving you a guarantee that the target will be sustained in the future. As of today, I think that I need to be a little cautious about saying exactly when we will deliver the 100 per cent guarantee.

But listen: leaving aside your caution and the issue of the fullness of time, we have a law today. If we have a law today, people should be able to have their legal rights recognised. I suspect from what you are saying that the health service in Scotland is not in a position to fulfil people’s legal rights, which begs the question of what the point was in trying to deliver a legal right that could not be delivered.

I will bring in Mr Gray, and then we will move to other members.

Thank you, convener. I will not be drawn on the wisdom of the Parliament. I will just say two things.

First, I do not wholly accept that we are ignoring the legal guarantee. We are working very hard to meet it, and it has given a useful signal to both the public and the NHS about Parliament’s expectations. Secondly, I do not think that any health service in the world would guarantee that a consultant will not go off sick on a day when they are meant to perform an operation.

I was fortunate enough that my daughter had an operation done by a very distinguished orthopaedic consultant and has had a very successful recovery. To be honest, I would rather have waited for him to do the operation, had it been necessary to do so. I welcome the fact that you have been generous in your comments about our own personal commitment and the commitment of the NHS.

I do not doubt the wisdom of what you say. Any parent would want to wait and ensure that the operation is done properly rather than rush and botch things to meet a commitment. You are right that no health service in the world can guarantee that a consultant does not go off sick. That makes me wonder why the health service in Scotland tells people that they have a legal right when you and Mr Connaghan tell me that you cannot guarantee that someone will not go off sick and the standard will therefore not be met. It is bizarre that the legal guarantee is in place.

I echo the convener’s comments about the national health service. As we speak, my granddaughter is back in Royal Aberdeen children’s hospital. Nobody is more grateful for the work that the NHS does than my family and my party.

I will pick up on the convener’s comments and those of Mr Connaghan, who said that 98 per cent of people received their out-patient appointment within 12 weeks. I refer to the Audit Scotland audit update on the management of waiting lists that was published in December—a month ago. Mr Gray said several times in response to the convener that you are working towards your target, but in fact you are working further away from your target. Paragraph 16 of the December update indicates that in September 2012 5,993 people waited for more than 12 weeks and in September 2013 the figure rose to 11,544. The figure almost doubled from 2.7 per cent to 4.6 per cent.

How can you say that you are working towards your target when the 12-week target has been missed for almost double the number of people? How can Mr Connaghan say that 98 per cent of people received their out-patient appointment within 12 weeks when the figure for those who did not has gone up from 2.7 to 4.6 per cent?

Let me clarify what I said. My reference to 98.5 per cent was in relation to in-patients rather than out-patients. I think that I referred to 95.4 per cent in relation to out-patients. One figure was for in-patients and the other one was for out-patients.

Do you agree that you are further away from your target? Many out-patients become in-patients, so the longer that they have to wait, the more detrimental it is. Do you agree with the figures in paragraph 16 of the Audit Scotland audit update report, which show that the target has been missed for almost twice as many people in September 2013 compared with September 2012?

Yes, I do for out-patients. I recognise that the figure comes from an ISD publication and that it is an accurate representation.

So would you say that “working towards the target” is also an inaccurate representation of where you are at the moment?

I do not agree with that. I know from the plans that boards have laid that they have increased staff and they have total planned investment of more than £67 million to address the issue, albeit that that is across all NHS boards, not just NHS Grampian and NHS Lothian, to which I referred previously.

We are working seriously towards the target; it is part of the performance management regime and I discuss progress on it with boards regularly. However, I recognise the figure that you quote, which I think is in exhibit 1 in the Audit Scotland report of December 2013.

I welcome the plans for the future very much, but our task is to look at the Audit Scotland reports that are presented to this Parliament.

I have another brief comment about activity. I was looking at some of the statistics this morning, which show that the NHS has been doing quite a lot more in the past few years. The figures show that the NHS is seeing about 9 per cent more out-patients now than it saw in 2009. Therefore, “working towards the target” means that we are carrying out more activity. The questions are: how much further do we need to push the envelope, and what more do we need in the way of resources to address the demand?

I want to put the 95.4 per cent figure on out-patients that you quoted in context. We see 4 million out-patients per annum. The rise in the waiting list and the deterioration in performance represent a very tiny proportion of that 4 million—it is about 2 per cent of new out-patients. I just want to put the figures in the context of the entire performance of the NHS, which sees many millions of patients.

Yes, but we are looking at the targets that have been set, which is our duty.

I refer you to page 9 of the December 2013 update report. I am a wee bit confused about this. The footnotes state:

“In January 2012, 18 weeks referral to treatment became a standard rather than a target. ... In April 2011, the 12 weeks wait for a new outpatient appointment became a standard rather than a target.”

What is the difference between a standard and a target?

That is a very good question.

I am looking for a very good answer.

I hope that I can give one.

I understand the confusion between a standard and a target; I will not pretend that the use of that terminology is easy. This year we are embarking on a bit of a review of our entire HEAT standard set-up. I hope that when we next attend we will have something that is simpler to explain to you.

Let me explain how a target becomes a standard. Over the past few years there have generally been anywhere between 20 and 30 HEAT targets for the NHS to pursue on an annual basis. Some of those have a predetermined time limit, whereby we need to achieve X by Y date. Ministers sometimes take the decision to maintain those targets as something that the NHS should always achieve. They distinguish them from new HEAT targets by calling legacy targets “standards”.

I will take one example that is clinically relevant—Dr Keel will recognise it—which is the target that we had on patients being treated within a certain time period for hip fracture. We achieved that target back in 2008-09, but we decided that it was such an important target that we would not let it slip or forget about it, so it became a standard that we expected the NHS always to maintain thereafter.

I know that that is a little confusing, but we are in the process of trying to unclutter the situation. We can write to the committee about it in due course.

Forgive me, Mr Connaghan: I am maybe not the sharpest tool in the box, but I still do not understand the difference between a standard and a target.

I can perhaps respond. Audit Scotland gives the explanation at footnote 5, on page 9 of the report, to which Mrs Scanlon has referred. It says:

“Standards are used for targets that are past the target date, but are maintained to monitor progress or for other purposes such as benchmarking.”

In other words, a target is something that we are broadly aspiring to meet and working towards; a standard is something that we want to maintain. That is about as simple as I can make it.

11:45

So when you do not meet the target, it becomes a standard.

No.

The footnote says:

“Standards are used for targets that are past the target date”.

In other words, if a target has been met, we could say, “We have met that target so we’ll just drop it”; on the other hand, we could say, as Mr Connaghan has said, that the target is of sufficient importance that, although we have met it, we want to continue to meet it. It therefore becomes a standard.

It says:

“Standards are used for targets that are past the target date, but are maintained to monitor progress”.

Yes. Once the target date—

Once you have not met the target date—once it is past the target date—you call it a standard.

No. Let us suppose in the abstract that we had said that, by June 2012, we would achieve a certain target. Having achieved that target, we say that it is an important target for the health service in Scotland so, instead of saying that the target is gone, we say that we will maintain it as a standard. Having achieved it, we will maintain it: that is the principle.

Okay.

I refer to the point that the convener made about sanctions and the legal right. Nowhere in this argument have I heard about the legal right that people in Scotland, being part of a member state of the European Union, have to go to any other country in Europe, should the targets or standards for in-patient surgery and so on not be met. Are patients in Scotland offered the cross-border healthcare that they are entitled to when targets or standards are not met?

Yes, they are. I met my opposite numbers from England, Wales and Northern Ireland on Thursday and Friday last week, and that was one of the issues that we discussed. We are seeking to simplify arrangements for cross-border charging. I am sure that John Matheson and John Connaghan can give you more detail on that, but the simple answer to your question is yes, cross-border healthcare is offered—and it is indeed taken up.

I turn to another point in the report. Vacancy rates have increased; NHS boards are temporarily not filling posts in order to make savings or to redesign services; there are difficulties attracting staff; and more is being spent on agency bank nurses and the private sector.

In its update report, Audit Scotland said that performance against the standard for outpatients “has been deteriorating,” as we have been saying. The report indicated difficulties within the health service that would make it very difficult, both now and in the future, to meet the targets. Do you acknowledge that those difficulties are there, as Audit Scotland highlighted, and that the targets will be more difficult to achieve in future?

John Connaghan will say more about the workforce issues in a second. I would say, as a broad outline, that staffing numbers in the NHS have risen slightly, but not substantially, whereas the demographic trends that we face in Scotland, as is the case in the rest of the world, mean that there is additional pressure. John Connaghan has already alluded to the increase in out-patient presentations over time.

I do not think that the situation in staffing makes it impossible to meet the targets that we have set ourselves. We are working closely with the boards, in accordance with their workforce planning, to ensure that we have the right resources in the right place at the right time. However, I am not going to say that there is never a case in which it is difficult to recruit—it would be wrong of me to say that.

If it is taking longer to fill vacancies and money is being saved through vacancy management, that could counter the small increase in staffing.

That would be the case if there was not proper workforce management, but I believe that, generally speaking, the boards have good and robust workforce management processes and strategies in place.

John Connaghan can give more detail on where we have come to.

Mary Scanlon has made a valid point about the length of time that vacancies are advertised for. We scrutinise boards in that respect: we look at vacancies that have been advertised for less than three months and those that have been advertised for more than three months. I do not have the statistics on them at hand, but I am happy to supply them to the committee.

I do have at hand the general staffing statistics, particularly those for medical staff. Since 2006, the number of medical consultants has increased by nearly 1,000. That is a 28 per cent increase in staffing. When you look at the number of vacancies that are advertised, I therefore ask you to do so against a background of increased staffing over that period. New posts have been created.

On vacancies as a percentage of establishments in the same time period, in September 2006 7 per cent of consultant vacancies were unfilled, and as at September 2013 4.4 per cent were unfilled. Therefore, I would not necessarily agree that there has been an increase in vacancies. It depends on what time period we look at and when boards advertised newly created posts.

There was also a significant increase in agency staff and a fivefold increase in the use of the private sector.

I know that the convener is looking at me, so I will briefly ask about paragraph 52 of the report and the gaps in the in-patient information that is currently submitted to ISD Scotland. Obviously, the committee is always looking for accurate information. The gaps include those in

“patient level data ... data broken down by specialty”

and

”the number of patients removed from the waiting list and the reasons”

and so on. I do not want to read out all the categories, but there are five separate ones in which, as Audit Scotland’s report says, there are “gaps in inpatient information”. When do you expect to be able to provide that information to ISD Scotland in order to get the accuracy that the committee looks for?

I can answer that question.

The information set is the result of an extensive audit. Many millions of patient records were scrutinised in the past year and a half by internal audit and by Audit Scotland. A series of recommendations on how we could improve accuracy was put to the NHS over a year ago, and the NHS has worked hard to ensure that all the IT and data collection systems are up to speed.

I am happy to say to the committee that, in this quarter, we are starting to gather all that information as the first cut of information. In the next quarter—from 1 April to June—we should have a complete data set in the new format for the whole of Scotland. I think that it will take one or two quarters thereafter to ensure that we have ironed out all the bumps in respect of that data collection. However, if we look at the information in a year’s time, we should be able to report that we have fulfilled that requirement 100 per cent.

So in April this year we will be able to get more accurate information about waiting times and waiting lists.

From April this year, you will be able to get much more accurate information. It should be borne in mind that the data for April to June will be published around eight weeks, I think, after that period end.

I will go back briefly to the legal guarantees, if you do not mind. I do not think that there is any law that we can guarantee 100 per cent that we can implement 100 per cent of the time, so it would be unrealistic for us to think that we should be doing that in this context. However, even if—as the convener said—people cannot get a legal guarantee, have there been spin-off benefits? For example, the responsibility to give the patient the first available appointment after the 12 weeks has been talked about.

That is a good point. Boards are now absolutely focused on ensuring that performance for that cohort of patients is as tight as we can make it. An example of a spin-off benefit is the significant drop in the median wait. The median wait for a hip replacement was 122 days in 2006-07, compared with 67 days in 2012-13, which is the best in the UK. That is much tighter.

Another spin-off benefit is that the legal guarantee forces boards seriously to reconsider capacity and demand. We can see that reflected in the additional resources of £67 million that are going in to support delivery 100 per cent.

I was cautious about giving the committee a date because the approach involves recruiting, building and expanding capacity, and we need to fling that against the increase in demand that I have discussed with the committee previously. Enormous spin-off benefits accrue, as I think some recent statistics demonstrate.

In evidence to the Health and Sport Committee in October 2013, the Cabinet Secretary for Health and Wellbeing said that the Scottish Government is looking at ways to increase flexibility in the current system. What action has the Scottish Government taken in response to the Auditor General’s recommendation that it should consider moving away from the current system of annual financial targets? What options have been identified for introducing increased flexibility, and how would the arrangements work in practice?

We already engage in five-year forward financial planning with boards, but I recognise the point that Audit Scotland made about the annuality of expenditure. Of course, we are working within Treasury rules in some respects. John Matheson will be able to give you detail on the precise steps that we are taking to provide greater flexibility to boards, which we think is increasingly important. He and I were discussing the matter last night.

There are three or four points to be made in that regard. First, I agree with Audit Scotland that an annual approach to financial planning is not the best approach. There is something artificial about trying to land at a particular financial situation at 31 March each year. An overfocus on doing that creates a propensity for short-termism in financial planning. That is why we take exactly the opposite approach.

As Mr Gray said, we have to recognise that we have by statute a requirement under HM Treasury to deliver a particular financial position at the end of the financial year. However, having taken that as a given, we seek to work with boards to develop financial plans that have a much broader horizon. The norm for boards is a three-year to five-year spectrum. Where boards have significant capital investment, we look for a 10-year profile.

We try to assist boards to use brokerage and banking around the financial year end. For example, in the current financial year we have had money returned to us from NHS Dumfries and Galloway, and from NHS Greater Glasgow and Clyde, because the boards are preparing for the double-running costs that they will face in relation to, respectively, the development of the new Dumfries and Galloway royal infirmary in two to three years and the opening of the south Glasgow hospital—the site will have had capital investment of £842 million—in just over a year. Those are good examples of boards taking a long-term perspective and taking account of double-running costs going forward.

The Scottish Government has access to the budget exchange mechanism. We are in discussion with colleagues in the Scottish Government about whether an element of that could be applicable to the health budget, to give us additional flexibility. I could make other points but I am conscious of time, convener, so I will stop there.

You said that HM Treasury places some restrictions on you. Am I right that boards have a responsibility to do annual accounts?

Yes.

However, you are trying to find other ways to finance things, so that boards can look forward with a three-year or a five-year plan.

Yes—absolutely. We recognise and acknowledge the absolute statutory requirement to live within our financial resources in any financial year; however, we are trying to use legitimate approaches to maximise flexibility.

Thank you.

12:00

The use of social unavailability codes increased dramatically between 2008 and 2011 and then fell from 36 to 18 per cent over the next two years. Do you know why?

I can pick that up.

Before John Connaghan does that, I will give Mr Macintosh a brief answer. I think that it shows the benefit of this and other committees paying close attention to things.

Can you expand on that?

Transparency in the NHS makes sense. Public scrutiny is an important function of any Parliament and the availability of that scrutiny—uncomfortable though it might be for people like me at times—means that we get better. That is my broad answer to your question; John Connaghan is well placed to give you the specifics.

Just before we hear from Mr Connaghan, Mr Gray, does what you have just said mean that, had such scrutiny not been applied to NHS Lothian, it would still have been manipulating the figures?

No it does not, because the chief executive of the NHS at the time—Derek Feeley—put in place procedures to consider what was going on in NHS Lothian based on information that he had. I know that, because I was part of the team that went in to provide support. I am simply acknowledging the benefit of a committee such as this one conducting public scrutiny, because it brings into public view the circumstances of the NHS in general and other parts of the public sector.

The issue that Mr Macintosh has raised has been the subject of much debate in previous committee meetings. Indeed, I remember looking at Audit Scotland’s February 2013 reports.

I think that there are two main reasons why unavailability fell. It peaked in late September 2010, when we saw an unusually big spike for in-patients, day cases and, indeed, outpatients, much of which was occasioned by the bad winter of 2010. Early in 2011, I agreed with most NHS boards an investment package, some of which was short term and non-recurring, to address the spike in unavailability. If patients could not get to their appointments through no fault of their own or if staff could not get into hospital because they could not make their travel arrangements, we had a responsibility to try to redress things.

A year or so before NHS Lothian came to the committee’s attention, unavailability began to fall. From what I recall, that evidence was submitted not just by Mr Feeley but by a number of chief executives who sat around this table.

Are you suggesting that the whistleblowing about NHS Lothian had nothing to do with what happened?

I can remember exactly what happened with NHS Lothian because I was the whistleblower. It was my letter of 6 January 2012 to NHS Lothian that indicated dissatisfaction with its first report to its board. I did not think that it was extensive enough and I asked NHS Lothian to ask its independent internal auditors to take a closer look at the matter. That report was made public in, I think, March 2012. As I said, I was the whistleblower.

That is an interesting take on events. Last week, the Auditor General made it clear to us that the committee played a key role in this because of the whistleblowing, and that she had not been able to use audit to reveal why the use of unavailability codes was going up. She said that there was a direct correlation between the whistleblowing in NHS Lothian and the decline in the use of unavailability codes. It was not because the audit was able to identify that.

I merely point you to exhibit 6 on page 20 of the Auditor General’s February 2013 report and ask you to take a look at the timescales. I can clearly see that in-patient and day-case unavailability peaked at about 40 per cent and that, a year later, in 2012—at the time when the NHS Lothian issue surfaced—the figure was 25 per cent.

Are you saying that the reduction was nothing to do with the whistleblowing in NHS Lothian?

I think that there was much greater focus thereafter. The unavailability percentage dropped from about 25 per cent to about 20 per cent in the following year. So, as Mr Gray said, the focus on unavailability during that period undoubtedly had an impact, but can I—

Quite—but my point is that it is clear that the NHS got into an absolute panic over misuse of unavailability codes. The trouble is that one board was found out, not through public audit but through a whistleblower. It was not through scrutiny. Scrutiny then turned on the issues that the whistleblower had raised, and all the other NHS boards got in a panic. You have since put in resources, but surely you must admit that it was the whistleblower who raised the issue in the first place?

No. I can clearly remember the events of that autumn and late 2011 and of early 2012. It was the investigation that we asked NHS Lothian to carry out at that stage that—

At that point, the whistleblowing had already happened, though.

I cannot recall any whistleblower asking about use of social unavailability codes. However, I can recall a case that appeared in late 2011 in which somebody had refused to go to England for treatment and complained about that. That is what surfaced. The issue that you are referring to about the use of social unavailability codes was uncovered only through the detailed audit that we requested NHS Lothian to undertake as part of the programme from the early part of 2011 onwards.

The way that you put it is interesting. I think that that happened after public anxiety had already been expressed. When the committee discussed the issue previously, I said to Caroline Gardner:

“You highlight the fact that it”—

“it” being use of unavailability codes—

“began to fall at the same time as you identified NHS Lothian as abusing the system.”

She replied:

“There is definitely a correlation. It is worth being clear about the fact that we”—

that, is the Auditor General—

“did not identify that in Lothian; it was identified, as the committee highlighted at the time, as a result of whistleblowing within Lothian. The same trend was apparent in the use of unavailability codes across other health boards, but despite extensive audit work on our part the audit trail simply was not strong enough to explain why that happened elsewhere.”—[Official Report, Public Audit Committee, 18 December 2013; c 1908.]

What do you make of that remark?

I recognise the remark to the extent that, from April onwards, the detailed patient information to which Ms Scanlon referred will be available, but at that time we had what was called an aggregate return on all patients, so it was impossible for Audit Scotland or even an NHS board to drill down into the application of social availability for each individual patient. To go back to remarks that Mr Gray made, we now have a system in which the scrutiny and focus of this committee mean that if a period of unavailability is to be applied, the patient must agree to it and it must be explained in writing to them. So, scrutiny has helped, and it came in in 2012.

I make it clear that I am pleased that you are concerned about misuse of the codes to disguise the length of time for which people wait for operations and urgent care in the NHS. However, I am slightly concerned that the audit trail was not available to Parliament, which meant that we did not come across the issue through audit. I am concerned about the use of gagging and confidentiality clauses. Between 2007 and 2013, there were 697 compromise agreements in the NHS. Do you know how many of them included confidentiality or gagging clauses?

I do not; my understanding is that information on that is held at board level. To put it simply, I do not know the answer to your question.

From a letter to the committee, my understanding is that every one of those agreements in NHS Lothian included a gagging clause, which was inserted by the central legal office. Do you think that most or all of the others had gagging clauses?

On the basis that I do not know, I think that it is safer to say that I do not know.

What is your policy on the use of confidentiality agreements from now on in the NHS?

The policy on the use of confidentiality agreements is a matter about which I and other officials are currently in discussion with the cabinet secretary. I am sure that, once the cabinet secretary has reached a view, we will be happy to let the committee know about it. I would not like to pre-empt the cabinet secretary’s decision on the matter.

Do you support whistleblowing or not?

I support ministers, Mr Macintosh. I support whistleblowing as a principle, but my advice to ministers is, clearly, a matter that I keep private.

You support whistleblowing as a principle, but you do not mind the fact that NHS Lothian has a gagging clause in every single one of its compromise agreements.

I think that you would be drawing me too far were I to say what I mind and I do not mind. What I mind and do not mind personally is not a basis on which policy is made.

Okay. You are in charge of the NHS in Scotland. Do you think that there should be gagging clauses in all those compromise agreements?

That is a matter that I am discussing with the cabinet secretary. I would prefer to wait until he has reached his view on that policy before I describe to the committee what the position is.

Do you think that it is cause for concern that whistleblowing is the only reason why use of unavailability codes in the NHS has declined, and yet we are inserting gagging clauses in all our compromise agreements?

I do not think that the only reason why use of social unavailability codes has declined is as you describe. Mr Connaghan gave a good account, for which I can vouch, of work that he undertook before the NHS Lothian matter came to the surface. I have acknowledged, however, the benefit of public scrutiny. I am not sure about the link that you are making. I am not saying that just to deflect the question; I am genuinely not quite sure about the link that you are making between gagging clauses and social unavailability codes.

I will just add to that. We have a national confidential alert line, which was set up to receive calls from concerned members of staff who wish to highlight issues and which is in a pilot phase that has been running for about nine months. We will evaluate it between now and the end of the financial year in order that we can determine its future. However, I think that it provides another arm that shows that we take whistleblowing seriously.

If I may, I will just summarise. It is of great concern that one of the biggest scandals in the NHS in the past few years—use of unavailability codes to disguise waiting lists in the NHS in Scotland—was revealed not through audit trails but through whistleblowing. It is therefore of great concern to me—if to no one else—that we are, through overuse and misuse of gagging clauses in the NHS, actually promoting a culture of secrecy rather than one of transparency. If every single compromise settlement with staff in the NHS includes a gagging clause, that is not a culture of transparency. However, you are saying, Mr Gray, that you support a culture of transparency.

I am grateful for the opportunity, Mr McIntosh, to reiterate that I support a culture of transparency. I am simply and properly not at this stage in a position to say what my advice to the cabinet secretary would be or what his response to that advice would be. However, I am willing to commit to ensuring that the committee is made aware as quickly as possible of the position on confidentiality agreements, once the cabinet secretary has reached a view.

Before we move on, can I just have it clarified that, in respect of whistleblowing and NHS Lothian, you said on at least two occasions, Mr Connaghan, that you were that whistleblower?

Yes. I am referring to the events that took place in the early part of 2012. The committee might remember that we had asked NHS Lothian to look into why there had been retrospective adjustments to waiting list information in one department in NHS Lothian. That report was furnished to the NHS Lothian board and was, I think, discussed at the December 2012 board meeting. I reflected on that and thought that more needed to be done. We could easily have accepted the report and said that it was fine, but over that Christmas and new year period I took a decision—with my director of performance hat on—that I needed to look at the matter in a bit more detail. It was only after that that the stuff on unavailability came out.

I appreciate that. I just wanted to make sure that it was put on the record that, when there was discussion about unavailability codes and whistleblowing in Lothian, any reference to whistleblowing should show that it was you who started the process.

I am happy to supply my letter of 6 January 2012 to the committee.

We can reflect on whether that is needed. Thanks very much.

12:15

Statistics are fine, but it is what you do with them that counts. One of the most important aspects of statistics coming forward is that they enable planning and reaction to pressure as it arises at any place in the system. That can happen at any time, through some winter bug or whatever affecting one or more hospitals. How do you monitor and react to that? What support do you give to individual elements of the NHS as and when they need it? How long is the delay before it hits your desk?

John Connaghan will give you the detail of our performance management arrangements to the extent that the committee requires it. Although for any public statements we are bound by the official publication of statistics—we respect that—we do not wait until the official publication before we take any action that may be required. John Connaghan and his team of performance managers receive regular updates from boards, which are monitored on a monthly basis. We meet the board chairs and chief executives monthly and put before them the latest information that we have both in a collective setting and in an individual setting. There is regular performance management.

I would not like to leave the committee with the impression that we wait until the official statistics come out before we decide what to do. Our approach is more proactive than that. John Connaghan may be able to give you more information on that.

I have very little to add to that, convener. I draw the committee’s attention to the annual report from our quality and efficiency support team, which is called QuEST. In that report, there are more than 30 case studies, covering each territorial and special board, outlining the interventions that have been made to improve things across the NHS. Mr Gray has outlined the process that we follow; we also report on that in public.

If there is pressure at a certain point, what do you do? Do you provide resources or advice? How do you work with that particular area?

It is tailored support, as not all issues require additional resources. In recent years, our ambition has been—as John Matheson might describe it if asked to do so—to maximise the amount that the Scottish Government gives at the start of each financial year, so that the boards know what they are getting and can plan. If a particular issue arises through a board experiencing service pressure, we look at how we can supply expert help. It is all about spreading good practice. For example, if a board is running into difficulty because of a particular issue relating to cancer or if it has an issue with recruitment, we look to see what else has worked in Scotland and we promote innovation and the spread of good practice. We have excellent and frequent communication with boards to ensure that that happens.

How quickly are you advised of those pressure points?

Each year, we conduct a risk assessment of board annual plans, which we call local delivery plans, in which each board gives us an idea of how it is setting out its stall for the coming year—you would call it a business plan. That gives us an idea of where some of the greatest risks are. I referred earlier to the fact that we gather management statistics, and for some key indicators—for example, accident and emergency statistics—I gather those weekly. That means that I and boards can track weekly how they are doing on those key indicators. If a board is in trouble, we gather those statistics on a daily basis. That is not as bureaucratic as you might think, and it gives us an immediate hint as to why there is a pressure.

If you were to ask, let us say, a clinical director and a local manager of one of our big hospitals how often they look at pressures in the system and how they react to them, the answer would be that they do so daily. I would suggest that the committee visit NHS Fife, for example. I was at one of its hospitals last week looking at its discharge hub and I attended the daily meeting to look at the pressures in the hospital and how it was balancing staff versus activity. It is pretty immediate.

I have two or three points from a financial perspective. How do we try to assist boards? It links back to Mr Dornan’s comments about long-term planning. We try to give boards indicative budgets. As well as for 2014-15, we are giving boards indicative budgets for 2015-16, which assists them in their long-term financial planning, and we work with them to accommodate planning assumptions about future pay awards and other pressures.

We try to give boards the majority of their allocations as early as possible in the financial year. By the end of July, boards will have received 96 per cent of their allocations for the year.

We try to reduce the level of micromanagement by giving boards budgets for individual policy areas and bundling allocations around common themes such as health promotion and healthy intervention. There are a number of themes within that. The bundles amount to about £250 million per annum. It goes back to targets. We leave the boards with an outcome and output-focused target to achieve, without micromanaging how they deliver those targets.

My final point is that we also have a review process with boards. We have the formal annual review with the cabinet secretary or the minister, but we also have mid-year reviews with boards, which John Connaghan and I carry out, where we can look at boards’ in-year performance, not just from a financial perspective but against clinical performance targets and activity performance targets. We also look at their efficiency plans for future years.

In response to Mr Dornan’s comments, I referred to the brokerage that we have given to a number of boards. Brokerage is not given lightly. It is given only where we have reassurance that boards need support with a short-term issue and that they have a sustainable long-term plan.

I hear you talk about planning and risk assessment and so on, but the very nature of the health service is that there can be a crisis at one or other hospital at any time because of some local issue or whatever, for example flu or some sort of bug. How promptly do you put support in, how do you put that support in and what are your contingency plans?

I think that I referred to the fact that in most major hospitals there is a daily morning meeting to assess what the pressures are in the system, for example whether the hospital is experiencing rather more accident and emergency referrals and whether someone is off sick. All boards have very good contingency arrangements that swing into place if they have a particular service pressure in a particular department. Boards rebalance the resources to ensure that the service is maintained. I refer you again to the annual report from the quality and efficiency support team. There are some excellent examples that might illustrate in detail the answer to Mr Beattie’s point.

I apologise, because I need to leave at about half past 12.

I have only two questions for the witnesses, one on each aspect of the reports that we are considering. The first question is on the financial performance report from Audit Scotland. In the Auditor General’s key messages, she highlighted the success of NHS boards throughout Scotland in meeting their financial targets and the savings that they were making. She also referred to the improved outcomes in Scotland in survival rates for heart disease, strokes and cancer.

My colleague James Dornan asked about the annual financial planning arrangement, and Mr Matheson answered that, but I have an additional question. Is there any scope for us to make further improvements in relation to, for example, NHS capital assets such as property and savings from drugs coming off patent? An issue that is not covered in the Auditor General’s report is things such as medical negligence pay-outs, for which substantial funds are always set aside. I know that, unfortunately, such pay-outs are required, but annually substantial sums of money in that category are not deployed. Is there further scope there for assisting our NHS boards to make the five or 10-year long-term plans to which the Auditor General referred?

Thank you for the question. You raise a number of points, all of which I will try to cover, but if I miss anything, please do not hesitate to come back to me.

The capital infrastructure is essential, but it is there to deliver the strategic direction of NHS Scotland, so it is important that the buildings are identified, located and so on to ensure that they support delivery of the quality strategy, which is the overarching strategy within NHS Scotland.

We have a highly significant capital programme. I mentioned the south Glasgow development, in which £842 million has been invested. We have a number of specific projects that are following the non-profit-distributing route, such as the new sick children’s hospital in Edinburgh, the replacement of Dumfries and Galloway royal infirmary, Ayrshire and Arran community hospital, Balfour hospital up in Kirkwall and the Scottish National Blood Transfusion Service project. A significant reinvestment programme is under way.

We are also conscious of the primary care dynamic and have a specific capital funding mechanism that will take forward some highly innovative community projects. The Aberdeen health village has just been completed and handed over. Developments are taking place in Tain in Highland and Forres and Woodside in Grampian, so a lot is happening. The aim of the hub is to look at how we can use our capital investment not just in the health element of the public sector but across health, local government and, indeed, police and fire.

Backlog maintenance is an issue that this committee and the Health and Sport Committee have raised previously. We recognise that significant backlog maintenance has been identified. We are very focused on prioritising the high-risk elements of backlog maintenance, and that has reduced by 60 per cent over the past few years. Some of the residual backlog maintenance will be removed as we move out of existing premises such as the sick children’s hospital in Edinburgh and the existing Dumfries and Galloway royal infirmary. That is on the capital side.

Our performance on clinical negligence from the point of view of cost compares extremely favourably with that in England. Currently, expenditure on that for 2013-14 will be around £34 million, so it is still—even to a finance director—a significant sum of money. I have been working with legal colleagues to deal with clinical negligence claims in relation to which our liability is accepted—in other words, in cases in which we have accepted that we have done something wrong and have harmed a patient. It is a question of recognising that, and the cost of that, in as fair a way as possible. Previously, the mechanism for doing that was to make a one-off payment of a lump sum. The disadvantage of that—this is where we get into tragic circumstances—was that if the life expectancy of the person concerned turned out to be longer than was anticipated at the time of settlement, the funding stream was inadequate; and if, sadly, the reverse was the case, there was financial gain, which was the last thing that anyone wanted.

I have got agreement from the lawyers that we will move to making a reduced lump-sum payment to deal with things such as housing adaptations and transport, which will be followed by an annual payment for the duration of the individual’s life. That has been welcomed by legal colleagues and is now taking place. It is called a PPO—that is the acronym for periodical payment order.

There are significant areas of pressure. I will give an example on the capital side. We need to look at capital assets not just in individual health board areas but on more of a regional basis. For example, the new laboratory infrastructure that is in place and is being used in the south Glasgow development, which operates on a racetrack system, has the potential to serve areas beyond greater Glasgow and Clyde. We must ensure that our assets are not only located appropriately but used effectively.

12:30

Finally—and I realise that this will be difficult in a less than buoyant housing market—we need to ensure that our surplus assets are disposed of not only cost effectively, so that we get value for money, but as timeously as possible.

Going back to the £34 million that you mentioned, I understand that NHS Scotland’s set-asides for, say, medical negligence are far in excess of that. Can you comment on that?

Certainly. The previous NHS Scotland budget for medical negligence claims going back three or four years was £50 million, which means that the current level of settlements has fallen over the period. I get directly involved in some of the high-value claims and the details of the negotiations, and the PPO approach has helped to reduce the figure.

With regard to waiting times, Mr Connaghan mentioned a number of figures, including 95.4 per cent and 98.5 per cent. I cannot remember which was which, but were they in relation to the 12-week treatment time guarantee?

I can clarify this in writing if you want, but the figures for the 12-week treatment time guarantee are 98.5 per cent for in-patients and 95.4 per cent for out-patients.

If we take that in the round, it is clear that we are meeting the target for 98 per cent of people, although I acknowledge that the figure is not 100 per cent. When do those for whom the 12-week treatment time guarantee is not met get their treatment? Is there any data that shows that they get it in, say, week 13 or whatever? After all, that is clearly important to patients.

That data is available and can be requested.

Would they get their treatment close to the 12 weeks?

I do not have that data with me, but I can tell you that we regularly scrutinise the matter. There is a duty on NHS boards to slot patients into the next available appointment that is suitable for them, but the situation is complicated a bit by the fact that someone who gets to, say, 12 weeks will not have been classified as an urgent case. Most urgent cases are seen and never get on a waiting list at all; in fact, most patients in Scotland are seen within the first two, three or four weeks. The situation with routine cases might be complicated by the person in question being slotted in in week 13 or 14 and their saying, “I’m unavailable for that. Can I have a little bit more notice?” We monitor this issue. As I have said, I do not have the statistics with me, but there is a duty on NHS boards to slot these patients into the next available appointment.

Given the previous discussion about specific targets, percentages and time slots and the calamity thereafter if these things are not met, I am keen to find out about the patient’s experience in and around that target and how soon they are seen beyond the target.

I think that we should write to the committee on this subject. It would help to clarify the matter.

Thank you.

Before I let in Colin Keir, I wonder, Mr Matheson, whether you can tell us whether you take out insurance against medical negligence or whether you, in effect, self-insure.

We self-insure through the health boards’ budget provision.

I am trying to fathom the issue that has been raised of the rather significant rise in the number of consultants over the past couple of years. Have any particular areas of concern been identified in which we have been unable to recruit consultants? If so, is the inability to recruit that particular group of people unique to our area or is it a UK or Europe-wide issue?

I can give you two examples of areas in which we have increased the number of consultants but still find it difficult to recruit. However, first of all, I should say that that is down to the nature of the job. For example, recruiting to an emergency medicine post that is part of the rota in an accident and emergency department is more difficult than recruiting to an orthopaedic surgeon post, because of the 24/7 working that is required to staff the accident and emergency department continuously.

The situation will very much depend on the consultant vacancy. We are not unique in that sense—the phenomenon applies throughout the UK. That is perhaps the best example that I can give of where such issues arise. We try to make jobs as attractive as we can. We link jobs between teaching boards and non-teaching boards, so that clinicians can undertake research, which is attractive to them.

Dr Keel might be better placed than me to comment on how we recruit people.

I am happy to comment. As Mr Connaghan said, some specialties are more difficult to recruit to than others. One of the pressure points is emergency medicine posts; another is cancer specialists, in particular radiotherapy consultants, of which there is a shortage worldwide and not just in the UK. That manifested itself recently in the north of Scotland, where NHS Grampian faced a number of vacancies.

We have worked closely with NHS Grampian to manage the process. Unfortunately, the situation has meant in the short term that patient pathways have had to be altered and that patients have had to go mainly to Glasgow and Edinburgh for treatment. However, I am glad to say that the board recently appointed two consultant radiotherapists, so we hope that we are out of the woods. Nonetheless, we must ensure that the NHS in the north of Scotland—in conjunction with the rest of NHS Scotland—has in place contingency plans so that we can manage such a situation, should it occur again.

As for attracting consultants to jobs in Scotland, NHS Education for Scotland has the strategy for attracting and retaining trainees—START—initiative, which is intended to market NHS Scotland better south of the border and more widely, so that we are better placed to recruit to key positions and avoid shortages. Some shortages are more predictable than others. We usually know when people will retire, but maternity leave is a bit less predictable. Some specialties are more feminised than others—paediatrics is the obvious one. Sickness, which has been mentioned, is a complicating factor.

All boards are conscious of the need to plan as cleverly as they can and to use NHS Education for Scotland to help with recruitment processes.

Are the recruitment problems the same Scotland-wide? Are the same consultants required Scotland-wide or does it vary around the country?

Scotland’s geography means that we have more remote and rural communities, which require not just secondary care but primary care. In some areas of the country, recruiting general practitioners has been difficult. Some specialties, such as emergency medicine, appear to be less attractive to trainees who are coming out. We must take that on board and make those posts as friendly as possible for their work-life balance. NES, which I mentioned, is very conscious of the need to attract people to remote and rural posts.

I want to follow up on the recruitment of consultants. Is there a volume of patients or cases that a consultant needs to see in order to maintain professional standards of expertise?

That is a tricky area. Until fairly recently, there was not a strong evidence base on the relationship between the volume of cases that a consultant deals with and outcomes, but in certain specialties—highly specialised surgical techniques are an obvious example—evidence is beginning to emerge that seems to associate the rate or volume of surgery that is carried out with improved patient outcomes. I am thinking of areas such as oesophageal-gastric surgery for cancer, which is highly specialised.

In respect of the management of major trauma, there is evidence that bigger centres have better outcomes. That has been demonstrated for decades in the United States of America. We are also beginning to move to a more structured system for the management of major trauma in Scotland, so that all A and E departments will not see major trauma cases.

That is interesting. Does it mean that, to ensure that patients have access to top-quality expertise, it is sometimes better to concentrate resources and facilities than it is to spread them evenly across many centres in Scotland?

It might do. We are a bit of a way from being able to say that definitively. We need better data. I am particularly interested in cancer—I chair the Scottish cancer task force—and we are beginning to gather better cancer data through the development of quality performance indicators for individual tumours in the lung, breast and so on. There are perhaps 10 or 12 indicators that clinicians think it is of prime importance to measure if they are to improve patient outcomes. In some—but not all—examples, one indicator is the volume of cases that clinicians should see.

We have been gathering the data over the past year, and this year we will begin to collate it at national level and take a look at it. That kind of data will enable us to make more evidence-based statements about who should be doing what and where the volume of patients should be concentrated.

Do all patients who are admitted to accident and emergency receive the same quality of care, irrespective of the unit to which they are admitted? Are there circumstances in which a medical decision will be taken to take a person straight to a centre where there is identified expertise that could mean a better patient outcome?

Both things are true. In a lot of cases, roadside triage by our paramedic ambulance service is crucial in determining whether it should take a patient to their local A and E or bypass that unit and take them to one of the trauma centres. Equally, if a patient comes into their local A and E and it is clear that they are a major trauma case and would be better transferred to one of the four major trauma centres, that should happen. It is about patient triage.

Consideration will therefore be given at some point to whether current levels of patient service and care can adequately be provided in an A and E service. Consideration will be given to how best to treat the patient and where the expertise lies.

For major trauma patients, that work is under way, but we are not talking about the majority of cases that present to A and E.

Does sustaining current levels of A and E in Scotland put pressure on the rest of the health service?

12:45

Emergency medicine has already been mentioned in the context of its being a pinchpoint, because an increasing number of patients choose to access the NHS via that route. A raft of work is going on around unscheduled care, to try to prevent patients who would be better dealt with by another bit of the NHS from going to A and E, and—this comes back to the four-hour wait issue—to try to ensure that patient flows through the whole hospital system are smoothed out, so that beds become vacant for patients who need to be admitted. There is a lot of work going on on that.

Are the recommendations of the Kerr report now redundant?

That is going back a bit. There were many recommendations in that report. I think that some of them have been implemented.

Yes, but not all of them, and the ones that have not been implemented are, in effect, redundant.

You would have to specify the recommendations that you mean.

We do not have time to get into a debate on the Kerr report, which is unfortunate. I will leave that sticking to the wall.

May I ask for clarification? I thank Mr Gray for his answers earlier but, on information and guidance from the health secretary on the use of confidentiality agreements, I recollect that the health secretary wrote to all boards last February suggesting that they do not use such agreements as a matter of course, and that he followed the matter up at a conference on whistleblowing, I think in the summer, when he said that he approved of whistleblowing.

Will you write to the committee to say what decision you expect from the health secretary? More important, are you able to provide information about whether the 697 compromise agreements that were made between 2007 and 2013 included gagging clauses? Perhaps even more pertinent, will you say whether compromise agreements that have been signed since then include confidentiality clauses?

I will leave that with you, Mr Gray. I thank the witnesses for their time. We have had a full and informative session, which has given us something on which to reflect.

12:47 Meeting continued in private until 13:04.