Item 2 is our second oral evidence session on the bill. We will hear from three panels of witnesses, the first of which is from the Law Society of Scotland. I welcome Hilary Patrick, the vice-convener of the mental health and disability sub-committee, and Katie Hay, who is a law reform officer. I thank the witnesses for their written submission.
I will concentrate on mental health. I am not quite sure whether the Law Society is in favour of the bill, given that it has expressed various reservations. There is a paragraph on mental health in the Law Society’s submission, but the best submission on mental health is from the Scottish Association for Mental Health. It says that mental health is
Obviously, the bill’s general principles about treatment being patient focused would apply to patients with mental health issues, but the treatment time guarantee does not appear to apply at all to such patients. I think that the Government is now saying that the treatment time guarantee could apply for child and adolescent services, but I do not really understand why. Some treatments might be available to adults on a planned basis, such as treatment for a long-standing eating disorder or an obsessive compulsive disorder.
If someone is going to be told that although they need treatment they are not going to get it, so that the health board can comply with the legislation, that sounds like a bit more than a technical problem.
Why would the health board not do that? That is what I would advise.
I am not disagreeing; I am just saying that it is more than a technical problem.
If I were a health board legal officer, I would say, “Please don’t agree the treatment until you know that it can be delivered within the 12 weeks.” I would advise the board to make noises that the treatment would be a good thing and to say that it will get back to the patient. Unless I am missing something, that seems to me to be an easy way of avoiding the impact of the legislation.
The committee did an inquiry into child and adolescent mental health and wellbeing. The treatment time guarantee is to be introduced for children under the age of 16 but, as far as I am aware—there are other experts here—there is no treatment time guarantee and no waiting time target for patients who have mental health issues.
Yes. I suppose that the question is why that group of patients is being discriminated against.
The point is that the Patient Rights (Scotland) Bill brings no more rights to mental health patients. From what you have said, and from what the convener has picked up, am I right in saying that because a mental health patient could get antidepressants or cognitive behavioural therapy by telephone from NHS 24, inappropriate treatments could be given so that targets can be met?
Cognitive behavioural therapy is a good example. Everyone might agree that I need it and that it could help with my depression, but there is no urgency about it. Why could a planned intervention like that not fall within the treatment time guarantee? Is it because it is not being given to an in-patient, and if not, why not? Why is that not discriminatory? Why are adults with mental health issues not being given those rights? It appears to be slightly discriminatory.
I was coming to that point. If the Patient Rights (Scotland) Bill is for all patients, but it excludes mental health patients, is it discriminating against that patient group in law?
I think that I would have to come back to you on the question whether the Government was discriminating. I would have to look again at the Equality Act 2010, but the provision clearly appears to be discriminatory under the normal meaning of the word.
Most patients will have rights but certain patient groups—such as those with fertility problems, for which there are no waiting time targets, and those with mental health issues—will be excluded. Is it fair to say that, according to the bill, some patients will have rights and others will have none?
Yes.
Concerns have been raised about the requirement for mental health patients to have a dual diagnosis for drug and alcohol treatment. Given the health improvement, efficiency, access and treatment—or HEAT—target for drug addiction services, how can they achieve the HEAT target treatment time guarantee while being excluded from the mental health one? Do you understand what I am saying? Those patients need two types of treatment, but only one comes under the guarantee.
I wonder whether it would be fair to suggest that part of the problem is putting such a guarantee in legislation and therefore fixing it in stone. It could be argued that it would be more sensible for the NHS and the Government to deal with treatment time guarantees, waiting time targets, HEAT targets and so on as priorities change.
Reading the British Medical Association submission last night, I noted its comment that waiting time targets distort clinical priorities. Is it fair to say that to make the bill non-discriminatory and to ensure that patients have equal rights every treatment would require to be underpinned by a treatment time guarantee?
I do not know whether I would go quite as far as that, but I think that it is invidious not to include mental health patients in the treatment time guarantee. That said, I question the value of that particular guarantee anyway.
That was very clear.
I want to pursue the introductory comments in your submission about the bill’s general principles and, in particular, enforceability. The committee is dealing with two quite separate issues. You think that the bill would be improved if its provisions were enforceable. I can understand that approach—having a lawyer at every bedside is bound to be good for the Law Society—but surely it is not the most logical way of addressing the problem.
First, Katie Hay will make a few brief comments about where our committee is coming from on this matter.
I would like to set our appearance this morning in some sort of context. As you know, the Law Society is a statutory body with the dual function of promoting the profession’s interests as well as promoting the interests of the public in relation to the profession. Our role with regard to law reform is very much part of the latter function. Our law reform department has a number of committees—Hilary Patrick, for example, is vice-convener of our mental health and disability sub-committee—and those who sit on them give their time voluntarily with the sole purpose of suggesting how law can be improved to clients’ benefit.
The point is that, on this occasion, we are not trying to drum up business for the legal profession.
I think that Mr Finnie was making a light comment. You must not feel wounded by it.
Maybe you should also have a sub-committee for understanding humour. That might be more appropriate.
I think—
Yes or no would do.
Under the bill, someone can still go to court and get what is known as a declarator, or statement from the court, that a health board is breaching the legislation and therefore acting illegally. That will be a charter for lawyers. If a health board—
Is that good law?
I do not think that it is particularly good law. We could have expanded our response to make it clear that either you have something that is enforceable and meaningful or you do not have this legislation at all. To be honest, I feel that if the provisions in the bill are not meaningful—I have suggested as much in relation to the treatment time guarantee—and given that the rest of the bill is made up of principles that are hedged with woolly phrases such as “have regard to”, “aim to” and so on, I find it difficult to see how they could be enforced.
Before you list them all, I wonder whether it might be useful if you just give us a number of examples and then provide us with the list in writing.
I will do so.
Why try to encapsulate all that in a bill and create a law that, apart from providing recourse to judicial review, which you might have in other circumstances anyway, could circumscribe your course of action by including section 18? Most people who were consulted on the matter said that they did not want a right to law, which begs the question why one is trying to introduce a law. However, that is a matter for the Cabinet Secretary for Health and Wellbeing.
Guidance or even a direction could have been issued to the NHS—power exists to give directions to the NHS. I was going to say that the one change under the Patient Rights (Scotland) Bill would be that someone could still go to court to get a declaration that the health board had behaved illegally. However, if ministers issued guidance to the NHS, one could still go to court and judicial review to say that the health board had not acted in accordance with the guidance.
We have an ombudsman system and this Parliament has established a number of ombudsmen to try to improve people’s rights. The Labour-Liberal coalition Government and the SNP Government have endeavoured to improve patient rights in general, and I think that they have improved in the past decade. Would it be better to have a patients charter, as the English have? I do not know whether you have looked at the charter, but it makes a clear declaration of something like 35 rights that are referenced to the legal underpinnings of those rights.
I might have this wrong, but I thought that if health boards did not comply with the ombudsman’s report, he or she could lay a report before the Parliament. Although it is always said that the ombudsman does not have powers, I thought that it was quite a sanction that he or she could lay such a report before Parliament.
The ombudsman makes reference to those issues in its annual report, but I have not been aware of any—
Instead of having a general discussion, we will clarify that matter before the end of the meeting.
My question stands regarding the patients charter. If the National Institute for Health and Clinical Excellence issues guidance to a health board on a question of medication with a particular drug, under the English charter the patient is entitled to that drug and the health board must supply it, if that is clinically appropriate. There are no such rights in Scotland, and there will be no such rights in the bill.
If the patient in such a situation in Scotland came to me, I might well challenge the health board. Judicial review would be available if our equivalent of NICE had recommended the treatment and the health board had disregarded the recommendation. There could be legal challenges, although I do not know whether legal challenges would be the way to go. Personally, I prefer to address complaints through ombudspeople rather than using litigation in the health service.
To return to Ross Finnie’s point, the Government could issue a direction that if a medication is approved by the Scottish Medicines Consortium, it should have to be delivered, if it is clinically appropriate.
No, I do not think that you are.
My main question is about people with disability and, in particular, sensory problems. We have heard today about a further report on the provision of proper information whereby people who are blind are able to use the health service effectively.
I do not see what new rights the bill gives to those people. Are you talking mainly about communication issues?
Yes.
One of the principles in the bill is about the provision of information and support and encouraging the person to participate, but patients have far wider rights under the Equality Act 2010 in respect of reasonable adjustments and non-discrimination. As I said previously, under that act it is not just about requiring people to “have regard to” those principles, because health boards have to make reasonable adjustments and must not discriminate. One of my concerns is that the bill’s principles almost undermine the much tougher law that already exists.
That answers one of my main concerns about the bill. My other concern—
I appreciate what you have said about existing rights and I am not disputing that. However, section 16(e) refers to
Yes, it would, but masses has been done under the Disability Discrimination Act 1995 and more will be done under the Equality Act 2010. I do not have any particular problem with the bill’s provisions on the issue. All I am saying is that, if one asks, “Does it add anything?” the answer is no, because this is already happening and people already have a public equality duty to ensure that people with disabilities are not discriminated against.
Playing devil’s advocate, however, I point out that it is not working at the moment. The people whom Richard Simpson has spoken about do not know their rights and do not get prescriptions in the appropriate manner—mind you, I cannot read a prescription either. They are not getting the medical advice or being told about stuff—they are already in the position of not being communicated with. Would that provision not help to get the information provided in a way that they can understand it?
Part of my problem as a lawyer is the fact that people do not know the law.
We are talking about helping them to know the law.
The provision would not hinder that, necessarily. However, the fact that the wording is that a patient rights officer “may undertake” does not strengthen the position.
The word “may” is the problem. One thing that I have learned in seven years as an MSP is that these small words have a significant effect.
I am sorry to repeat what I said. My concern is that the treatment time guarantee will not help to challenge waiting times because it is an individual relationship between the clinician and the patient. There is no obligation on a clinician to agree a treatment within a certain time limit. If the treatment is not available, it will not be offered and accepted in that sort of contract and the time will run.
That is very helpful. Thank you.
Let us return to the point about the Scottish Public Services Ombudsman. I believe that all the reports are published on the website. I am interested in the fact that you think that that is a sanction. Some parliamentarians read the reports but others do not; therefore, how do you think that it would be a sanction?
I do not think that it is a sanction; I just think that it is an effective remedy.
Why do you think that?
Using the ombudsman is free and does not require much work by the patient, whereas going to lawyers costs a great deal of money. Also, the ombudsman is familiar with and has an understanding of NHS practice. Often, complaints are not about breaches of legal rights but about poor practice, rudeness and delays. As you know, the test that the ombudsman uses relates to maladministration—bad management. That is more common than some dramatic breach of legal rights.
You used the word “sanction” when replying to an earlier question. Given that the general thrust of our discussions has been that there are no enforceable rights under the bill, was your use of that word misplaced?
My understanding is that the ombudsman makes a recommendation to the health board to pay compensation to someone or to apologise. Generally, most health boards or others criticised by the ombudsman comply with his or her recommendations. I understand that, if they do not, the ombudsman can lay a report—not the general report—before the Parliament. I thought that it would be a sanction for Lothian NHS Board, for example, if a report were laid before Parliament describing the awful thing that had happened, setting out the ombudsman’s recommendations and indicating that the board was refusing to act. That is not a legal sanction, but the Parliament would ask questions and the board would have to—
Forgive me, but I want to move on, as we have exhausted the issue. We will get a note on whether an ombudsman’s report can be laid before Parliament. I imagine that the press, too, will pick up reports and use them.
My other question is about evidence that the committee has received. Some people believe that, if the rights for which the bill provides are enshrined in law, patients will come to believe that they are their only rights. What is your view on that issue?
I believe strongly that that is the case. I was making the point that people have much stronger rights. People will take the view that the rights for which the bill provides are their only rights because, under section 15(4), the patient advice and support service, with its new duties, will be able to give patients advice only on their rights under the bill, rather than on all their rights. That is a clear weakness; the service should be able to give advice on patients’ other rights. It is a great concern that patients will get the message that they have no other rights.
I have a brief supplementary on the back of Richard Simpson’s question. The convener pointed to section 16(e), on publicising the patient advice and support service. However, section 1(2) states that health care is to
I was going to say, “You tell me.”
That has answered the question.
The committee has a heavy agenda this morning, so I am racing on to the second panel of witnesses, who represent health care professionals. They sat through the previous evidence session, which was useful for us and for them. The witnesses are Dr Sally Winning, who is deputy chair of the British Medical Association Scotland; Theresa Fyffe, who is director of the Royal College of Nursing Scotland; and Dr Bill Mathewson of the Royal College of General Practitioners Scotland. Thank you for your written evidence. We move straight to questions.
Good morning. You may or may not have heard the evidence that was given in the previous session. In your written evidence, all of you express grave reservations about whether legislation is the right way to articulate and lay out patient rights. I put it to a previous witness from the Law Society of Scotland that, although it is clearly desirable that we have a body of text that sets out patients’ rights, that might be better expressed by publishing those rights and the cabinet secretary issuing them to all relevant health bodies as a direction under the National Health Service (Scotland) Act 1978, given that the bill gives people only a limited right of judicial review and section 18 effectively nullifies all other remedies. Do you share the view that expressing rights in that way would be preferable to creating a piece of legislation that appears not to be enforceable? In my opinion, it is doubtful whether we would want it to be enforceable.
We agree absolutely that there is a need to do something about the principles of rights for patients. We are not against that. The Government is seeking, through the bill, to address a problem. There is a need for better co-ordination and to make it much clearer to patients and others that patients have rights and that, perhaps, they have not been enabled to exercise those rights. However, it is clear to us that the bill will not deliver that. As the previous evidence showed, some rights are included and some are not. That would be confusing for the public, who are already confused about the fact that they have rights but do not necessarily know how to enact them. We should do something about that. There is a need to enshrine patient rights, but we do not believe that legislation is the way forward.
The BMA agrees with that. If we as clinicians and politicians have failed to communicate patient rights effectively, we need to address that and we should do so within the doctor-patient relationship. We could do it by publishing a charter, so that patients feel more empowered to address patient rights issues within the context of an on-going episode of care.
I agree with my colleagues. Many of the patient rights that are mentioned in the bill are included in codes of practice, especially those that are issued by the General Medical Council, which provides good clinical practice guidance.
You say that there is a problem but that the bill may not be the solution. I do not understand why the problem has not been addressed for a long time.
Patient rights are recognised in everyday practice by general practitioners.
They are not, however, recognised by patients and that is the issue. I am not a stupid lady, but I do not know what all my rights are.
We have an NHS booklet and we have other means by which people can find out about their rights, but it is not clear that patients or the public know how to use them, so it is not clear that those rights are being enabled. It is about communication.
The waiting list initiative is perhaps an example of how a patient’s perception of what their rights are has become distorted. Patients now tend to look at quantitative measures of rights, such as that they must be seen within X amount of time, but there are layers and layers of rights beneath that, including rights to do with how they are treated. Patients have made complaints on, for example, being treated with dignity or being dealt with in such a way that they understand the language that is used. Looking at more easily measurable things such as treatment time guarantees and waiting list initiatives can sometimes give patients the wrong impression about what their rights are. We need to shift away from numbers to quality of care. The excellent quality strategy that is currently being implemented will tackle many of those issues.
I am still struggling to understand how the bill will increase patients’ rights. The BMA says on page 3 of its submission:
As far as relationships are concerned, we have worked extremely hard on the concept of mutuality that the Government brought in, and we fully understand the importance of having a partnership that involves patients, staff and all those who seek to provide a service. We are looking for a role between patient and professional that is complementary, not one that increases tension.
That takes us to issues such as mental health.
Mental health is a major concern. Again, I agree with my colleague Dr Winning. It can be said that things are easy when there are quantitative measures. However, I have spent a lot of time working with patient groups, and have said to them, “You want to have your target, but what about the experience? Did you feel that you got what you needed? Did the experience match what you wanted and leave you feeling that you had left the care experience in the best way?” That is important. Outcomes are about what happens afterwards, not the treatment.
I will illustrate that with fairly extreme examples. If I were an orthopaedic surgeon who wanted to replace an elderly lady’s hip and I absolutely had to meet a target, she might have to go on to someone else’s theatre list. That happens in order to achieve waiting list targets. Surgeons have unknown patients to operate on appearing on their lists. I would want to have a good relationship with my patient, and perhaps I would wait a little bit longer so that she could reduce her body mass index to make the operation safer and I could ensure that she fully understood the procedure, or perhaps I would bring forward the operation or delay it a little until her daughter could arrive from England to be with her during the recuperation phase. A target-driven culture might be to the detriment of good-quality patient care.
That is helpful. Thank you.
I am finding it difficult to hear Dr Winning, as there is a big buzz from the sound system. I wonder whether there is a problem with her microphone.
Shall I try another seat?
Would that be possible? I have a slight hearing problem, and am finding it difficult to hear you.
I think that the answer to that question is nothing.
I agree.
So do I.
There we are. Those were short answers to a long question. That is not bad.
It is clear from your submissions that all the professional bodies that you represent are in favour of patients’ rights, that patients already have certain rights, and that you have codes of practice and so on that help to inform professionals in their practice about patients’ rights. Theresa Fyffe commented that she believes that patients’ rights should be enshrined, but not necessarily in legislation. I am not clear how they could be enshrined by any other means. Given that you are in favour of patients’ rights, what do you believe we should be doing, other than in legislation, to ensure that patients can exercise their rights more effectively?
There are a number of solutions. I believe that we should look at the constitution that has been developed in England. There are elements within it that would perhaps need consideration for Scotland, although I would rather not go into that today because I have not brought it with me. However, as a process, it has brought rights together in one place and made them much more accessible. That is what I meant by enshrining patients’ rights. The NHS constitution has made the rights clear to people.
Do any of the other professional bodies want to comment?
Please indicate to the chair if you want to comment. I call Dr Mathewson.
The Royal College of General Practitioners Scotland would agree with Theresa Fyffe. We welcome clarification and amplification of patients’ rights, but not codification—or whatever the appropriate word is—in legislation. There is a need to make patients more aware of their rights. There is also an enormous burden on general medical practitioners to act appropriately—to indulge in mutuality with the patient, to exchange information, to respect the patient, to encourage them to take up services, and to explain things. All of that is already part and parcel of everyday general practice, as it should be. It is expected and, as I have said before, it is in the strong guidance that is given by the General Medical Council. All those rights and privileges are inherent in the codes of practice that already exist, but we welcome the statement of them, the strong support for and amplification of them, and some method of ensuring that patients become more aware of those rights.
And the BMA?
I agree with everything that my colleagues have said. If we are looking for what the solutions might be, I think that the independent advice and support service is exactly that. It is independent and it is holistic as it covers all sorts of issues such as welfare. If patients’ rights were laid out clearly, there are facilities and places where patients can go to get that information in an easily understandable and digestible format.
Do you have another question, Michael?
Yes. I have a couple of points, if you do not mind.
There are two aspects to that. One is that legally enforceable rights would inevitably alter in some way the atmosphere or the doctor-patient relationship in the consultation, despite people’s best intentions, because there would be awareness that the consultation was on a legal footing.
Have we exhausted that issue?
I am keen to hear whether the Royal College of General Practitioners Scotland is opposed in principle to the idea of enshrining rights in law.
RCGP Scotland is opposed in principle to that.
The RCN Scotland is also opposed in principle to that. As an organisation we are working very hard around the no-fault compensation scheme; I think that recommendations are coming out in late October. It is becoming clear that there is work to be done around the complaints system to redress the balance. That is why we have been committed to that work. For us, the consequences, which Mr Finnie addressed earlier, of having legal redress would not be in the best interests of patients or others.
The BMA supports the principle of patient rights, but we defer to the views of our legal colleagues, who do not think that the bill will add anything to the rights that already exist.
The bill will not add or take away; it is neutral.
Yes.
I get a sense from this morning’s discussions and from other discussions that we have had in the committee that everyone wants change that will enhance patients’ rights. The question is, how do we do that? We politicians can give you chapter and verse about cases of injustice about which we get enraged on behalf of our constituents. Some of those cases result in death. How can you ever bring back a loved one for someone who has been bereaved in that way?
That is the challenge that we now face. The Government has opened up a good debate about why patients rights are as they are and how patients feel.
In a sense, we are all saying with hindsight that that should be the way forward. However, has it ever been done before? Did the Government call you to meetings to get your views and those of patients and everyone else in the medical profession before it went to the drawing board to prepare its consultation document? Was there an attempt to get a consensus on the appropriate way forward before the Government came to the Parliament? If that had happened, we could have had a more rounded debate.
That has been happening around various areas of work, such as the work that has been done on no-fault compensation. We have been at the table in relation to some issues and have been very committed to that work. We have had extensive discussions with the Government on the dignity work and our views have been listened to and well received. That is the way it has been happening, rather than—
So, it has been a fragmented and piecemeal approach, rather than there being a round-table discussion with all the parties involved.
Perhaps.
I have three questions. First, I gather from everyone’s submissions that you are all concerned about the possible distortions that could arise from the 12-week waiting time guarantee—for example, there is a worry that ensuring that someone gets an operation within 12 weeks might mean that the operation of someone who needs it more urgently is delayed. Is that correct?
I think that that point was made by previous witnesses, but members of this panel might want to comment.
I agree. That is correct.
Section 8(3)(a) deals with the arrangements that apply when a health board has exceeded the 12-week treatment time. It says that the health board
Yes, I think that that would be better. The statement should be given prominent consideration in the bill because, without it, individual clinicians, who might be reviewing patients and changing the clinical position to make appropriate actions, would have no latitude. We in the college have discussed the issue; no doubt you will have spoken to secondary care colleagues, who might also have a view on the matter.
I share Theresa Fyffe’s enthusiasm for a concept of mutuality in the health service, but how would that work in practice? What if the bill were to contain responsibilities for patients? Having worked in primary care, I am very well aware that some of the people in greatest need are those who, at first sight, do not seem to meet their responsibilities. Instead of mutuality being some nice, happy concept, I wonder whether introducing such responsibilities would in practice simply increase health inequalities by coming down heavily on the very people whose health needs might be greatest, even if they were not so good at co-operating with the health service.
That is the conundrum. Once you begin to talk about balancing rights and responsibilities, you get into that very dilemma. As set out in the schedule, the 12th principle is:
I agree. As we all know, there has been enormous movement in the area of rights and responsibilities over the past 10 or 20 years, and the very fact that we are debating it this morning represents another step forward. Those who are less likely to be able to speak for themselves are likely to be more disadvantaged in the mutual aspects of the doctor-patient relationship.
You agree, though, that setting out in a bill the requirement for people to keep their appointments and so on might have an effect contrary to improving the country’s health.
Yes. Setting out minutiae such as that—well, perhaps not “minutiae”; it is an important element—could be counterproductive.
My third—and last—question, convener—
I have been counting. It seems more than three, but I am sure you are right.
It is three.
As it works at the moment. There would be an exchange of information between the patient and doctor; an understanding would be reached of the problem and the options for dealing with it; and information would be disclosed about possible outcomes and follow-up. As you say, that is an increasing part of primary care and the extended primary care team’s activities; indeed, it has become an even greater part, with long-term conditions being looked after by other primary care colleagues.
But the bill places a duty on health boards to monitor each treatment time guarantee and to make the necessary arrangements for the procedure to happen somewhere else if it is not going to happen within 12 weeks. Surely, if that is a health board responsibility, it will involve more bureaucracy than simply leaving the matter to the GP. What if someone says, “I’ve been waiting 15 weeks,” and the health board has not known anything about it?
I am sorry—I think that I might have misunderstood your question. Are we talking about procedures being carried out in primary care or about GPs’ role in monitoring the treatment time guarantee?
I am sorry if I am not making myself clear. I am talking about a treatment such as a minor surgical procedure that is carried out in primary care, which will now be subject to a 12-week waiting time guarantee if the GP and the patient agree to the treatment. As I understand it, that treatment will be treated in exactly the same way as procedures carried out in hospital. Under the bill, the health board has an obligation to monitor the treatment time guarantee and ensure that, if it looks as if it might not be met, it is met elsewhere. Will that not involve more bureaucracy?
Yes. If the bill is enacted, there will have to be a mechanism to allow notification of the procedure to be carried out and its completion. However, in most general practices it is likely that patients will not have to wait anywhere near 12 weeks for a minor surgical procedure, which often can be done, if not immediately, then fairly quickly.
But you are aware of all that.
Yes.
And you have discussed it with the Government.
Not yet.
So far, our discussions have focused on the treatment time guarantee. In its submission, the General Medical Council says:
The short answer to that is yes.
Are you saying that patients will not be allowed to refuse treatment, which is a right that they have at present?
Perhaps I am not in understanding mode. Patients would be disadvantaged by not having the legal right to refuse treatment, or a patient with incapacity would be disadvantaged if the bill were to go through.
Perhaps I might intervene, convener. The matter is probably covered in section 18(1)(c), which refers to
Moreover, according to section 6(1), we are talking about
Committee members seem to be giving evidence now. Once I let them loose, Mary, there is no holding them back. I am getting medical opinions to the right of me now.
There are too many experts. However, as the GMC is not giving evidence, I thought it appropriate to ask the BMA, the RCN and the Royal College of General Practitioners for their views on the issue.
Before we proceed, I want to pick up on capacity, which is surely an issue in all walks of life. One of the main concerns of any professional is whether a patient has the capacity to consent to anything, whether that capacity is of a temporary or a permanent nature. Therefore, I do not think that we need it in primary legislation—it is just there.
It is part and parcel of everyday doctor-patient exchanges.
That is the ex-lawyer speaking to the ex-medical practitioners. Have you finished, Mary?
The RCN and the BMA have not responded, but maybe they do not want to respond.
Well, that is grand.
Can I ask a supplementary question? Mary Scanlon has properly asked these witnesses about the GMC’s evidence, but I would like to ask them what they think section 18(1)(c) means.
I say, for the people in the public gallery, that the section states:
I presume that that means the Adults with Incapacity (Scotland) Act 2000.
That is what I understand.
And the Mental Health (Care and Treatment) (Scotland) Act 2003.
And the rule of law, which is not necessarily in statute but may be judgments.
It will be on the website as well.
That is separate from parliamentary procedures. In terms of the Parliament’s procedures, what I have said is what is meant by that phrase. I hope that that answers the question that members raised.
That is very helpful. Thank you, convener.
As the next witnesses take their seats, I advise members that, after this evidence session, I will suspend the meeting for five minutes before we move on to the final items on the agenda, the most important of which is the Alcohol etc (Scotland) Bill at stage 2.
I will direct my question to John Gallacher from Unison and, as he has listened to the earlier panel’s evidence, give him the opportunity to comment on any of the issues that were raised. The philosophical point that we were discussing with Bill Mathewson is contained in the third paragraph of Unison’s written submission:
Thank you, convener. I apologise for the delay in my arrival.
That is very helpful. I have a small supplementary question and I might come back to the issue later if we have time.
Yes. Violence and improper behaviour towards staff are huge problems in the health service. A particular case springs to mind from Edinburgh. A patient who is in prison has to attend for dialysis and, every time he attends, he routinely physically and verbally abuses staff. As you say, the withdrawal of treatment is usually done only in extremis. It is unusual for clinicians or general managers to decide that treatment can be withdrawn. We do not believe that patients’ responsibilities are stressed highly enough in the framework that is set up.
Good morning. Unison expressed concern in its written evidence about the advantages of enshrining patient rights in a bill. Inclusion Scotland expressed concerns about the use of the words “have regard to”. Long Term Conditions Alliance Scotland seeks an additional code of practice. The others before us generally appear to support the bill. How will we benefit by enshrining our rights in the bill, when section 18(2) expressly states:
This was picked up on in the previous panel. Many of these rights are already in codes of practice and so on, but it is clear that they are not being implemented sufficiently. If the bill prompts work to embed patient rights throughout the NHS—the Government has talked about increasing advocacy services and introducing a programme of training for NHS staff as a result of the bill—and to embed a culture of rights in the NHS, that would be of major value. Some elements of the bill, such as the expectation that staff will communicate with patients in a certain way, could be strengthened, such as by stating that information will be provided in an accessible way. If the expectation was all there in one bill, that would make a difference.
Do you need the bill to do that? The health secretary could issue a direction under the 1978 act calling for that to happen. Why do we need an act of Parliament that implies that you have some legal right, when section 18(2) removes it?
It is about individuals having rights, but it is also about the expectation on staff working in the NHS not just to tell people about their rights but to do things proactively such as providing information in accessible formats, supporting people’s right to access advocacy, communicating with them and so on. We think that having that in a bill would help.
Good morning. I am rather perturbed by the paternalism of professional bodies in relation to the use of the word “mutuality”. By mutuality, I understand that there is equality between the two groups; otherwise, mutuality cannot exist. When Theresa Fyffe was talking about mutuality this morning, I wondered whether her argument could have been used against equality for women because it would upset mutuality between men and women—although obviously, it does not.
So you are saying that the bill will redress an imbalance.
Yes, it will redress an imbalance. We cannot have mutuality if one actor is less resourced and less empowered than the other.
I guess that the question is really: what might the bill add? I have looked at the history, and our main evidence obviously relates to communication in accessible formats for blind and partially sighted people. There is already legislation, such as the disability discrimination legislation, which should ensure that people who are blind and partially sighted receive information in an accessible format.
I happen to agree with you, but I also think that it is up to you to tell us what is the best way forward. I suppose that we have the ultimate decision and power in that respect but a question has crystallised around the bill that the Government has proposed. You and your organisation have raised very real concerns that the various things that have been implemented are not actually being done. As a parliamentarian taking evidence from all the organisations before me—including, at the moment, the RNIB—I have to wonder whether we need to address the situation through the bill, which expressly removes access to law in so many ways, or whether we take some of the subsidiary work that the Government is very properly carrying out and introduce a range of other documentation that sets out the various rights. My concern is whether we actually need a new bill.
Despite the regulatory and professional conduct standards of the bodies in question, despite the laws that have been introduced and despite the fact that this has been a persistent problem for a long time, nothing has changed. Perhaps the bill is required to change practice.
So what would it do?
It might well focus the minds of those who work with patients. To some extent, I am a one-trick pony; my main interest this morning is about protecting patient confidentiality through communication in accessible formats. There are wider issues, which you have debated with other witnesses, but I guess that I want the focus to be put back on to the chain. Perhaps the doctor thinks that the patient has been communicated with in an accessible format and does not give it much thought once the patient has left the waiting room and the letter has been printed off by the receptionist or passed on by the nurse. We need something that will focus the minds of all the people in the chain on ensuring that none of its links is broken and that we do not have situations in which patients get letters that they cannot read or, as far as the RNID is concerned, in which appointments cannot be made because the people at the other end do not have the right machinery.
I should clarify that although nothing in the bill can be enforced, it does not affect pre-existing provisions. We are not saying that all current rights will be wiped out.
As we say in our written submission, the important issue is the practical implementation of the bill’s provisions. I am encouraged that we are having this debate, but I have to say that, when I reread our submission, I was struck by the fact that it highlights fairly basic principles of communication in respect of people who are deaf and hard of hearing and talks about a fairly basic lack of access to health in certain fundamental areas. For example, people have to get someone else to make phone calls for them because health departments—even audiology departments—expect people to contact them by phone. I am sure that everyone around the table finds that shocking, but the fact is that we regularly hear such stories.
What has been said highlights the dilemma for me. I do not in any way disagree with the point that there is a need to make some of the existing statements work—Delia Henry said something not too dissimilar, and her written submission also makes that point. What is less clear—although it is not Delia Henry or Allen Thurston who is less clear—is whether setting that out in a bill that does not give any new rights is the appropriate way to ensure that that happens. That is the difficulty. It is about the vehicle. I have no difficulty at all with the purpose that Delia Henry wants to achieve for her members and the purpose that Allen Thurston has identified. That is not my problem. I am clear that we need to do something slightly differently so that their members get a better kick at the ball. However, I am not clear whether the bill is the right way of delivering that. That is the dilemma.
One finding of the survey that was conducted for the RNIB was that people do not complain. Largely, there is no voice from blind and partially sighted people about not receiving information in an accessible format. That is where the bill could provide a benefit. In a way, there is no complaints culture among blind and partially sighted people. Although complaints procedures are in place, people do not use them because they do not have enough energy or they do not want to be troublemakers or cause waves. The mechanism in the bill takes away the onus to complain and puts in place rights. That legal framework might help.
Let me pursue that for one second. You say that the bill will help by putting in place a legal framework. To return to my colleague Michael Matheson’s point, normally if I confer on you a right, I also confer on you a right to have recourse to a court of law. However, that is not how the bill is drafted, and that is the difficulty. I am not sure that you want that, but are you telling me that your members would be better off if they had a right to go to law?
The point is more that, rather than have the onus on them to go to law, there should be an awareness on the professional and clinician side. In a perverse way, it is about emphasising the responsibility on the clinician side, rather than the patient side, if that makes sense.
I would take Ross Finnie’s big step and allow patients to go to law. There is an argument for that. How else can we underpin the power of the patient to be at the table on a mutual basis? The patient needs to have power behind them to equalise the relationship between them and the professional. The bill has big holes in it. One of them is a lack of awareness of how to spend the £500,000 on advocacy. To empower certain patients, they need an independent advocate, and I do not think that £500,000 a year is sufficient for a national advocacy service. If we are to have patient rights officers, we need to equalise that by having independent advocacy in each board area. I am talking about how to empower patients in the professional-patient relationship. I agree that the bill does not go far enough in the empowerment of patients.
My supplementary fits well with Jim Elder-Woodward’s point. If I understand the witnesses correctly, they are saying that the problem lies in the fact that people do not exercise their rights. There are rights in existence. The Disability Discrimination Act 1995 alone gave enormous rights—
Ah!
Wait before you come in. Richard Simpson has stirred a hornet’s nest by mentioning the DDA.
—which are not being enforced. The message that I am getting is that it is not working.
I think that you are giving evidence, Richard.
There was a question: do the witnesses agree?
There was a question only because I prompted you.
What a leading question!
The results of our survey indicated that blind and partially sighted people were aware of their rights—nine out of 10 of them knew that they had a right to receive information in an accessible format, but only one out of 10 actually received it, and the proportion who complained was even smaller. It is about disempowerment—it is more to do with the fact that people are disempowered when it comes to the complaints procedure. People know that they have rights; they know that they are there. The point that Mhairi was making is that a top-down approach is necessary. It is the hospitals and the clinicians that need to change what they are doing. We are not necessarily calling for more things that people can complain or sue about; we are calling for something that addresses systemically the wrongs that are occurring in the NHS at the moment.
I gather that there has been a 20 per cent increase in the number of complaints in England since the new constitution and the patients charter came in, so perhaps something is happening.
I say to the witnesses that they have to be less than subtle if they want to enter the discussion, as my eyes are trying to see everything.
I echo what Allen Thurston said. One of the key things about the present situation is that the onus is on organisations such as ours to highlight issues such as the failings that are happening, which include people not being given information in the way that they need it or communicated with appropriately. I am not a legal expert, but I think that one advantage of the bill would be that it would put an onus on the NHS and the Government to monitor how effectively it was implemented, which would pick up many of the issues that our organisation has put a lot of time and work into picking up. That would be a key benefit of the bill.
Carolyn Roberts has been sitting quietly and patiently, so I—
She will not be doing so for much longer, now that you are targeting her.
Carolyn, I am not sure whether you were here for the discussion earlier in the meeting about patient rights in relation to the treatment time guarantee. I think that you were extremely diplomatic and courteous in your submission, but is it not the case that every mental health patient in Scotland—apart from children—whom you represent will be excluded from what the bill provides? I will obviously ask whether you agree with me and what your concerns—
Excuse me. I do not want such questions to become infectious.
As far as mutuality is concerned, are there any aspects of the bill that would benefit adult mental health patients?
We support the Patient Rights (Scotland) Bill. I have been quiet so far because everyone else was making the points that I would have made.
I thank you for that.
Our main concern is about access to mental health services, which is excluded from the 18-week target, and from the Patient Rights (Scotland) Bill. That has a knock-on effect: because there is not the same guarantee about access to mental health services, less is done to gather waiting time statistics in that area. I am sure that the committee is aware that it is difficult to get information on how long people wait for adult mental health services because there is no requirement to meet any of the current waiting times guarantees. We are concerned that the lack of provision in the bill in that regard could perpetuate the situation.
I made a freedom of information request two years ago regarding psychology services in Easter Ross, in the Highlands. Patients there were waiting for four years and seven months to see a psychologist, and I do not see any benefit for them in the bill.
Could I clarify the point? Patients have rights; what they do not have are rights specifically concerning mental health services. They have rights relating to services being patient focused and providing optimum benefits.
But nothing that relates to the bill—there is no treatment time guarantee.
Indeed—that is specific.
There is a right to be treated with dignity and respect, as we would always assume, but as far as the bill is concerned, adult mental health patients are excluded.
Yes—we accept that as regards treatment time guarantees. I am making it plain to anybody listening that the bill is not called the patient rights (but not including people with mental health issues) bill. It relates to some aspects, but not to guarantees about treatment times—that is the point.
And that is at the core of the bill.
I take all the points that have been made. We had some discussions with the bill team while the bill was being drafted regarding its human rights implications, and we are pleased that there was mention in the policy memorandum of article 12 of the International Covenant on Economic, Social and Cultural Rights with regard to
We are particularly concerned about the remoteness of the PROs, in that there will be only one or two of them per health board, and there will not be any in local hospitals. They will be very remote, and their remit in providing information will be limited. There is nothing in the bill to say that they will facilitate the provision of information from professional to patient. We feel strongly that the PROs will not be able to do their job effectively.
As a consequence of previous Governments’ decisions, we already have an independent advocacy support service in Scotland. I am interested to know the witnesses’ perceptions as to why the service is not working. The service is there as a result of a Government decision and it is funded by health boards, although it was established by Citizens Advice Scotland. What is it about the service that is not working but which you think the bill could change, given that such change is proposed?
I do not think that the service is well enough organised. It is also there to give information and advice; it is not there to advocate and it is not there to facilitate dialogue between professional and patient. If the independent advisory and support service is to be developed, it needs to be beefed up, it needs to be local, it needs to be visible and it needs to be beside the patient, not miles away in some office.
Is that not a matter of monitoring, managing and getting feedback about the existing service? I know from my work as an MSP that the independent advocacy support service does advocacy work in my area. I do not know about the experience of other MSPs on the committee, but it certainly works in that way in my area.
It does not in mine.
Is that not an issue about Government monitoring, evaluating, assessing and putting right the problems that exist in a service that is already enshrined in legislation? We would not be introducing something new; it already exists. The bill would duplicate something that is already in place.
You have made a really good point, but the findings of our survey show that there is an onus on the patient to pursue and activate the service. In the case of our client group, the patient is often quite disempowered and weary from living with a condition that excludes them from society. The thought of pursuing advocacy is sometimes an option that they do not want to take. They do not have the strength or the stamina to pursue that, even though the service may be accessible. We have said that it will be of benefit if the Patient Rights (Scotland) Bill introduces more systemic change, which means implementation by clinicians and a greater emphasis on clinicians tackling the problems that we highlighted in our report.
I am totally in sympathy with your concerns, as, I think, all committee members are. However, we face a challenge, which is why we need answers from you. The DDA and all the different acts are there—I have campaigned for years, for example, to get accessible railway stations for my community; such access is enshrined in legislation. However, the bill has no means of enforcement, so it does not give me or my constituents any power. The question that we are struggling with is whether a piece of legislation that does not give you any way to enforce it is worth the paper that it is written on. That is what you have to persuade me about this morning.
If I may, convener—
It is lovely to have someone who defers to me, as I am so unused to it. You can come back—teach members something.
There is almost an analogy with a nuclear deterrent. If we have it in place, will it make a difference?
The nuclear deterrent clause—or is it mutual deterrence? [Laughter.]
In what way is the bill a deterrent? There is nothing that I can enforce if a clinician does not do something that they should do. Where does that leave us? Where is the bomb?
I do not want us to get frivolous—it has been a long session—but I think that that word might just bring security in here. [Laughter.]
I just want to make the distinction between giving advice and advocating on behalf of someone. There is a difference between independent advice and support services and advocating on behalf of a patient to have his rights secured. If a patient has no rights, there is no need for an advocacy service and we might as well all go home now.
I was going to stop there because I think that that is a powerful argument, but Dr Thurston has indicated that he wants to speak. I am sure that he will make a powerful point, too.
I thought you were going to stop there, convener. I just thought that I would go into extra time.
When you spoke earlier about issues of confidentiality, you said that you are here as a one-trick pony. I sympathise with that, but the issue is that we already have the data protection legislation. What is wrong with that in terms of protecting patient confidentiality?
Perhaps people in the NHS do not see it as applying to them. There are Caldicott guardians in the system who protect patient confidentiality in the transfer of electronic information, but I guess that there is a disconnect between people seeing the disability discrimination legislation and the data protection legislation and their understanding how it applies to them in their job. Perhaps it is the bill’s job to bring those things together and say, “This is how the legislation applies to you in the NHS. You can improve care and outcomes for patients by behaving in this way.”
I think that we will stop there because we have pretty well exhausted all sides of the argument. I thank everyone for giving evidence. I suspend the meeting for five minutes.