Patient Rights (Scotland) Bill
The next item of business is a debate on motion S3M-7978, in the name of Nicola Sturgeon, on the Patient Rights (Scotland) Bill.
15:50
I thank the Health and Sport Committee and its clerks for all the work that they have done on the bill. As always, the committee was challenging but constructive and was a pleasure to work with. The work at stage 2 and today at stage 3 has undoubtedly strengthened the final article of the bill.
I thank my bill team officials, who have done an excellent job throughout. They have worked incredibly hard and their efforts have also helped us to strengthen the bill as we have gone through the parliamentary process. I genuinely believe that we have a bill that will make a difference to patients in Scotland, which has always been the intention of the Government and, I hope, of everybody else in the Parliament.
The manner in which patients are treated when they receive health care, as well as the quality of the clinical care that they receive, is fundamentally important. That is why we introduced the Patient Rights (Scotland) Bill. Genuinely excellent care already exists in the health service—I would be the first to acknowledge that. However, I would also be the first to acknowledge that that genuinely excellent care needs to happen more reliably and more consistently. It needs to happen for every person, every time they have contact with the health service. When it does not happen, patients must have a clear and unambiguous right to complain and to have their concern addressed. That is what the bill is all about.
Throughout the process, we have all agreed about the importance of patient rights. That has been welcome. We have all agreed that action needs to be taken to strengthen and ensure those rights. However, we have had honest differences of opinion about the best way of doing that. Those differences have led us to work together. The bill that is before members today is strong, practical and effective.
Following discussion at stage 2, we agreed to work closely with Richard Simpson to develop elements of the bill, one of which was the patient charter of rights and responsibilities, which is now a strength of the bill at stage 3. As we discussed a short time ago, the bill establishes a duty to publish a charter that will summarise all the rights and responsibilities of patients, including rights that are not established in the bill, such as data protection and equality rights. I hope that that addresses members’ earlier concerns that the bill would somehow create a hierarchy of rights and that patients would find it difficult to know the full breadth of their rights or might think that the rights in the bill were their only rights. More important, the charter will be drawn up in consultation with those whom it will most affect, so I hope that it will be a relevant, practical and useful document for patients and national health service staff.
The treatment time guarantee is another aspect that has developed throughout the parliamentary process. As I have said, the treatment time guarantee is intended to operate within the overall 18-week patient journey target. In the discussion on amendments, Richard Simpson said that we have the shortest waiting times on record—those were not his exact words, but that is what he meant. We have the shortest waiting times on record and we have made incredible progress. That began under the previous Administration, but it has continued and, I would argue, accelerated under the current Administration. I record my thanks to all the NHS staff who have worked hard to make that possible.
We all know that, for some patients—usually a very small number—their condition means that it will always take longer than normal to diagnose them and determine the treatment that they need. At the moment, if diagnosis takes such patients beyond the waiting time guarantee, they have no waiting time guarantee protection whatever. This treatment time guarantee is intended to provide—in the words that Richard Simpson used earlier—a long stop. It ensures that patients whose conditions take some time to diagnose and whose waiting time therefore exceeds the 18-week target still have certainty that they will receive their elective in-patient or day-case treatment within 12 weeks of agreeing the treatment. That reduces anxiety for both patient and family. I believe that that is sensible; it builds on our success on waiting times in recent years.
The bill introduces a comprehensive, nationally procured patient advice and support service. The current service has a lot of strength and is valued by those who use it, but it is not consistent throughout the country. That will change as a result of the bill. That will be beneficial to patients who need more support in accessing their rights such as those with mental health problems or a learning disability or the elderly. That is why a vote for the bill is a vote to help and support patients in Scotland.
The bill also introduces a legal right to complain. Many members questioned the value and necessity of a legal right to complain, but I passionately believe that introducing it is an important step forward in helping patients to make their voices heard. It is also an important step forward in reassuring patients that their voices count and will be listened to. As I have said, we know that a lot of fantastic work goes on in the health service day after day. Much of the feedback that we get from patients recognises that. The bill is about listening to patients, learning from their experiences and improving the way in which services are delivered. Above all else, the bill is about saying to patients, “It is okay to complain.”
I am often struck by how often I speak to patients who have something to complain about but who feel that the very act of complaining is somehow disloyal to the health service that they value so much. The bill unashamedly and deliberately sends a signal to patients that not only is it okay to complain, exercising that right does a service to the health service and future patients by ensuring that, where things go wrong, we address them and minimise the chance that they will happen again.
The last area that I want to touch on is the separate issue of contaminated blood, which was introduced into the bill today. It was important to use this opportunity to amend the Smoking, Health and Social Care (Scotland) Act 2005 in advance of the decision that we will take on the future support of those affected by hepatitis C as the result of infected blood or blood products. I am very pleased that the amendments on the subject were supported by the Parliament today. They will ensure that, subsequent to our decision on eligibility for support, applications can be dealt with far sooner than they would be if changes were not introduced until later in the year.
I thank colleagues for the constructive way in which they have gone about the passage of the bill. I hope that everybody will vote for it at decision time. In voting for the Patient Rights (Scotland) Bill, I believe that we will take a big and bold step in setting out the foundation of a statutory framework of patient rights that will last way beyond this session of the Parliament and, hopefully, beyond the next session and the one after that. The bill is an important and significant legacy for the Parliament. We are the first in the United Kingdom to legislate for patient rights. In so doing, we are creating an NHS in Scotland that is truly among the best in the world and will continue to be so. I have great pleasure in moving the motion.
I move,
That the Parliament agrees that the Patient Rights (Scotland) Bill be passed.
15:59
I thank colleagues on the Health and Sport Committee and the committee clerks for the help and support that they have given throughout the process. I also thank the cabinet secretary and the Government bill team for the assistance with which they provided me in getting in place some of the language and other aspects of the amendments that we considered today.
I am pleased to open on behalf of my party in support of the bill. That is a sentence that I could not have written when first we were presented with the bill. I remember Ross Finnie taking me to task considerably and at some length for my highly critical stance on the original bill. I believe that the bill, as amended, will make a valuable contribution to the important journey that the Parliament has been on since its inception.
We have come a long way. The whole culture of the NHS in Scotland has changed and will continue to change. Moreover, my party, the Government party and the Scottish Liberal Democrats—I am less sure about our Conservative colleagues—remain wedded to a modernised but still very public service. Central to that is the concept of partnership, to which all of us are wedded—partnership between health professionals and patients and between the institution of the NHS and the public.
We will not embrace the wholesale changes that are now happening in England. However, in the bill, we are aligning ourselves in one respect with the English charter approach of the previous United Kingdom Government. The charter will meet the concerns of the Law Society of Scotland, which at stage 1 identified some 17 rights under statute, common law or NHS practice that were not set out in the bill. As the cabinet secretary said, it will end concerns that there is any form of hierarchy. I am sure that such a hierarchy was not intended in the original bill, but its existence was clearly implied.
The charter will provide a comprehensive guide and will have to be in formats that meet the various needs of all our citizens. Today we have agreed that those should include specified formats for people with a degree of incapacity. That reflects the groundbreaking Adults with Incapacity (Scotland) Act 2000, which was followed by our English colleagues a considerable time later.
The effect of the charter will have to be monitored. However, no matter how comprehensive or how well promoted it is, we have not yet answered the central question that the committee was posed with, as patients will not have any meaningful redress or compensation if their rights are infringed. That may have to wait for another session of Parliament and consideration of the report of the no-fault compensation group. Elements of the bill may need to be reconsidered in light of that. No-fault compensation will be a crucial further step in moving from a defensive, closed approach, according to which mistakes are not recognised openly as opportunities for individuals and systems to learn but are seen as things to be hidden as far as possible.
We did not think that the way in which the treatment time guarantee was originally written, which applied it solely to in-patient treatments, was helpful. There will now be a series of undertakings to patients on what they can reasonably expect and a long-stop guarantee that they will not be passed by so that another patient can be placed within the tolerances of a target. Patients are rarely unreasonable. As one constituent said to me the other week:
“when I arrived at the hospital for my scheduled hip operation in the worst of the bad weather it was like a war zone. So when they apologised telling me they had to postpone my operation I fully understood I was then offered a choice of going to the Golden Jubilee or waiting for my chosen surgeon to have a free slot it was my choice and I felt everyone was doing their best.”
A charter targets and guarantees to underpin the mutuality of partnership, open discussion, clear information that makes sense and choices wherever possible, but it is not a platform for litigation.
In the new complaints section of the bill, Labour has sought to further the same principles of partnership and mutuality. Now there is not just a legalised complaints system but an NHS complaints system that invites patients and their families and carers to be part of a constant cycle of improvement. The four Cs approach that was supported by the Scottish Human Rights Commission’s team and proved so successful in the challenging surroundings of our state hospital is now to be part of the NHS. I hope that the Government will invite the commission and the Scottish Public Services Ombudsman to support the introduction of that new approach.
As the cabinet secretary indicated, most patients do not want to complain; sometimes they are fearful of complaining. Frankly, in the past boards have had a tendency often to respond with reports of process, instead of welcoming input as an important means of improvement and then telling the patient what they have done to make changes for the future. I always encouraged my patients to send in compliments or positive feedback if they had had a good experience. Staff respond to that. More important, managers can then see whether positive lessons can be learned that can be applied to other areas. Individually, comments may not amount to much, but when collated they may point to patterns and help to identify problems before they become the third C, that of concerns. A cobweb, a wheelchair left in a corridor or a notice partially hidden—none of those is hugely important but, if on day two, three or four the cobweb is still untouched or the chair still blocks egress, they can become concerns.
There are concerns about the 10 per cent of staff who, despite the substantial improvements that have been made, still do not wash their hands before touching a patient or moving a bedpan followed by a food tray—a comment I heard from a constituent the other day. We need to encourage patients to express concerns without having to go through a formal complaints system.
There are complaints, though. In the state hospital, those declined as the rest of the system developed and staff and patient satisfaction improved. The feedback loops that we are building in are critical to the success of the system as a means of improving care. All the feedback loops—to the patient, the family member, the carer, the patient advice and support staff, the board, the health department and health improvement Scotland—will be crucial.
Finally, there is the patient advice and support system. We now have an independent system capable of an holistic approach. I urge the Scottish Government to ensure that all existing contracts are extended immediately until the act is commenced and new contracts are established. The uncertainty created by the proposal to create a new and expensive raft of patient rights officers has already caused some damage that the Scottish Government must move quickly to repair.
I commend the bill, as amended, to Parliament.
16:07
The health secretary commented on patients’ loyalty to the NHS. That is a good point, but a small minority have a bad experience and often want to provide feedback to ensure that others do not have a similar experience. That should be seen as loyalty rather than complaining.
Scottish Conservatives voted against the bill at stage 1, and rightly so. The bill at stage 3 is substantially different and builds on the first patients charter, introduced by the Conservatives in 1990, which was reviewed and updated by the Labour-Lib Dem Scottish Executive 10 years later, in 2000. Now, another decade later, we have a bill at stage 3 that brings patient rights and, indeed, responsibilities into the modern age.
It is appropriate to outline our reasons for voting against the bill at stage 1 and to acknowledge the recognition by the Scottish Government that the first bill was not fit for purpose. The bill, as introduced, did not seek to enshrine all rights available to patients and the new rights could not be legally enforced. At stage 2, that changed to a patient rights charter, along the lines of the Conservative charter in 1990.
The bill as introduced talked about a duty on NHS bodies
“to have regard to certain rights and principles”.
I lodged an amendment at stage 2 to change that to a duty to uphold health care principles. It was agreed to unanimously.
As Richard Simpson said, there was a focus on complaints as the only means of feedback and communication. Many patients and families do not want to go down the road of complaining. That has changed to a more positive approach focusing on feedback, comments, concerns and, if necessary, complaints. There is undoubtedly a need to have a more open and accessible system of patient feedback and to handle patient concerns in a sensitive and supportive manner.
Like others, Conservatives did not want a charter for lawyers that set out new rights that were not legally enforceable. The patients charter will address all those issues in a more modern and effective manner. The committee—or should I say Dr Richard Simpson—ensured that patient responsibilities as well as rights were included in the charter. That is only right.
We were, and remain, concerned that the treatment time guarantee will skew clinical priorities, but I accept the health secretary’s amendment to ensure that the clinical needs of all patients are taken into account and hope that it will address the issue. The committee was unanimous in supporting that measure.
However, despite the new health improvement, efficiency, access and treatment target for psychological therapies for 2014, I remain concerned that mental health services will remain the Cinderella of the NHS, given that resources will continue to be focused on meeting the treatment time guarantee.
In the stage 1 report, the committee concluded that
“a majority of the Committee is not persuaded by the evidence which has been advanced to date, that primary legislation is the most appropriate means of promoting patient rights.”
The committee was, therefore,
“unable to make a recommendation to the Parliament on the general principles”
of the bill.
As the health secretary said, what we have before us today has been achieved as a result of excellent committee scrutiny and the health secretary responding to all the concerns that were raised at stage 1 to bring forward a bill and a charter that are fit for a modern NHS and which are built on respect and dignity for patients, and better communications and working relationships between patients and the NHS.
I appreciate that we have been on a journey, but I am pleased to say that the Scottish Conservatives will support this much improved bill.
16:11
The Scottish Liberal Democrats voted against the bill at stage 1. We did so because of a number of quite important principles to do with the purpose of legislation, which have been widely debated and rehearsed, particularly by me and the cabinet secretary. That was a not unhelpful discourse. We will support this much-amended bill this evening; I will explain why in a moment.
However, I am bound to say that that does not change the Liberal Democrats’ view that legislation is a matter of law and should have a purpose and effect in law. Although I agree with much of what the cabinet secretary said, the passing of a bill cannot be regarded as groundbreaking or something for which the whole world will applaud us, as the first country to have a law on patient rights, if that law, even in its amended form, still will have no real legal effect.
Given that I was so critical of Dr Richard Simpson—who was so eloquent in his criticism of the bill that I misunderstood his position; for that I apologise—it would be churlish of me not to acknowledge the enormous amount of work that he has done in developing amendments that, together, have created the prospect of a charter. We will support the bill because we think that the charter is important, but with this caveat: I still do not believe that a Parliament that is worthy of the name needs to have a bill in order to create a charter. We ought to pause and reflect on that.
However, we must move forward; life is too short. We hope that the charter will set out clearly and concisely what patient rights are and what patients can expect. It will also make it clear that, as the Law Society pointed out to us, there are some 17 legal rights in addition to those that were originally set out in the bill, to which patients can have recourse if they genuinely need to. Bringing all that together will be enormously helpful.
From the evidence, it was clear that the temptation to follow the need for a patient rights bill was driven by confusion about exactly what patient rights were and the range of those rights. There was also confusion because there was effectively no single document that brought them together in an easily understandable form. There was, of course, a degree of disappointment in discovering that the Patient Rights (Scotland) Bill, as it was introduced, gave not one legal right whatever, but that has now been amended.
There are other enormously helpful elements in the bill as amended. Patient advice has been substantially changed in a way that is very much in the interests of the patient and eliminates the need to invent a more bureaucratic system to implement it. We now have a system that will be helpful to the patient.
I am sure that it is important that we have the right to complain. Perhaps I am unusual but, in my almost 12 years as a member of Parliament, not one constituent has written to me to tell me that their complaint was sent back to them with a short letter explaining that they have no right to complain. However, I have found that complaints have been dealt with in a profoundly unsatisfactory way. As Richard Simpson said, certainly in the west of Scotland, the health boards still tend to narrate complaints at all stages, thus indicating how perfectly they were dealt with, leaving us to ask why the complaint was written in the first place. The fundamental differences in how the system operates that the bill introduces and the fact that someone can simply make a comment give encouragement to do something different and take a more positive role.
As I have indicated, I share Richard Simpson’s view that the complaints loop will not be complete until we act on the report on no-fault compensation that the cabinet secretary published recently. That is the missing link in addressing the complaints situation.
The cabinet secretary’s amendments concerning patients and sufferers of hepatitis C are a welcome addition. I hope that having those powers conferred upon her, the cabinet secretary will be able to respond positively, although she did point out that there are some difficulties with the way in which the fund has been implemented down south. Nevertheless, we agree with the general principles.
The Liberal Democrats are satisfied that the patient charter will benefit all those who use the health service. I pay tribute to the cabinet secretary; as always, she has responded positively to matters that have been raised with her. We have not always agreed with each other, but the critical point is her willingness to make progress, to respond constructively and to place before the committee and Parliament amendments that induce a proper debate. Many of the subjects that were a part of the original bill have been improved as a consequence of the process of debate and her genuine attention.
The bill spans the charter, the treatment time guarantee—which, as Mary Scanlon said, has been amended to change the sense that it might dominate the process of clinical judgment and care—patient advice, the right to complain, the complaints process and payments for patients with hepatitis C, making the bill one that I can support, despite my real and genuine reservations. If I am fortunate enough to be returned to Parliament, I will continue to oppose any bill that does not confer any legal rights. I certainly hope that in future we will be able to make charters without going through the whole legislative process.
16:19
One of the criticisms that is sometimes made of the national health service is that, as a monopoly, it runs the risk of ignoring the genuine needs and concerns of patients. If we are being honest, we know that that has sometimes been the case.
Other countries have attempted to put the patient in the driving seat by introducing competition and privatisation into health services, but that brings other problems—too numerous to list now—and Scotland has, rightly in my opinion, avoided going down that route.
How do we avoid the trap that many monopolies fall into of becoming an organisation for producers rather than consumers? The answer is by constant vigilance, and the Patient Rights (Scotland) Bill is an important tool that can help. It is perhaps significant that much of the opposition to the bill has come from producers, whereas patient organisations—the consumers—largely support it.
At stage 1, I found very persuasive the argument that the bill could be confusing, even misleading: although it is entitled “Patient Rights”, it does not list all patient rights. Although I recognise the argument by the minister and others that existing rights that are not enshrined in the bill are not weakened by that omission, it seems sensible to include in the bill the establishment of a charter, so that the average patient on the Morningside omnibus knows his or her entitlements. Therefore, I welcome the adoption of a charter at stage 2 and its continuing presence at stage 3.
The star attraction in the bill is the treatment time guarantee. Lawyers and others might quibble that a legal guarantee without legal redress is worthless, but most of us agree that neither patient nor NHS will benefit if the health service in Scotland becomes a rich feeding trough for lawyers, as is now the case in some other countries.
The attraction to patients and patient organisations of specifying a treatment time guarantee in the bill is that it gives waiting times much more importance in the minds of those who provide health care and so makes it much more likely that such a guarantee will be observed.
Another worry of mine when the Health and Sport Committee was taking evidence on the bill was whether strict attention to fulfilling the guarantee for patients nearing the end of the guarantee period might delay an operation or procedure for a person whose health could be seriously put at risk by such a delay. For instance, it would obviously be wrong for an operating list to be full of relatively minor operations that needed to be performed urgently simply to meet the terms of the guarantee, if that entailed putting off an operation or operations that were clinically urgent but which had been on the waiting list for a much shorter time.
I am pleased to say that the bill makes it clear that clinical needs must always be given priority in such situations—and, if such a situation exists, that is an acceptable ground for breaking the treatment time guarantee. That is a commonsense stipulation.
I praise the establishment of robust mechanisms for collecting patient feedback and providing patient advice and support. For too long we have encouraged an environment in which complaints have been the main form of feedback. Although it is important that complaints are received and acted upon, there are many pieces of advice or observations from patients that are far removed from being complaints that could help in the running of the health service. It is right that we pay attention to those. Being in hospital or on the end of health care delivery, from whatever source, can be a bewildering experience, so a robust, independent patient support service is very welcome.
We must not let ourselves be beguiled by the notion of a free health service. The NHS is not free; it is paid for by the taxes of those who use it. It is vital to establish mechanisms to protect the rights of those who not only use the NHS but pay for it, and the bill goes a long way towards doing that.
Like other members, I had concerns on first reading the bill at stage 1. That we can now all agree that the bill should be passed speaks well of the Government, the Health and Sport Committee and the Parliament. I ask the Parliament to support the bill.
16:24
I am pleased to speak in this stage 3 debate on what is a very much improved bill. As other members have said, the Health and Sport Committee could not recommend the bill to the Parliament at stage 1. Basically, the bill as introduced did not improve patient rights and was in danger of creating a hierarchy of rights, by emphasising those in the bill and unintentionally undermining those that were not in the bill. The bill as introduced provided no new rights in relation to the complaints procedure and was in danger of creating different systems in different areas. I am glad that the bill has now been improved sufficiently to allow all parties in the Parliament to pass it today.
There are still patients who feel that the bill does not go far enough, but it is difficult to retain a health service based on mutuality if it is also surrounded by litigation. I hope that the bill will ensure that problems can be dealt with before they reach the stage of litigation and that patients will always be afforded dignity and the involvement that they should have in their care. If that happens, litigation will not be necessary other than in extreme circumstances. It is also clear that there is a fine balance between rights and responsibilities in the health service. We need a health service that is based on mutual respect between all staff and patients. There must also be respect throughout the ranks of the health service, where old-fashioned hierarchies often still exist.
The bill has been amended to instruct the Government to pull together all patient rights into a patient rights charter—a single point of reference that encompasses all rights and responsibilities. Every patient has the right to the same level of respect, treatment and involvement in their care, regardless of their age and circumstances. I was dismayed recently to see that elderly patients do not always appear to receive the same level of care as patients in other areas. Staffing levels appear to be different, as are basic resources such as blankets and pillows. That is unacceptable. Elderly patients have the same rights as everybody else; indeed, because they are more vulnerable, they should probably receive more care.
The bill means that NHS boards will have to uphold the health care principles rather than have regard to them. The first principle is:
“anything done in relation to the patient must take into account the patient’s needs”.
That can only benefit elderly patients.
The bill has also been amended to allow the patient advice and support service to provide holistic advice and support. We received evidence that the citizens advice bureaux currently provide a holistic service in that they advise on patient rights and complaints but can also offer advice to the same patients on much wider issues such as benefits. When people are unwell, an additional burden is placed on them if they have to access a number of agencies to receive the help and advice that they require. The CABx’ one-stop-shop approach is really helpful and means that the adviser has a full picture of the patient’s needs. The one problem with the existing service is that it is not uniform across NHS boards—it is up to individual boards to contract for the service. Some boards take it seriously, funding and advertising it properly, but others do not. That means that there is a postcode lottery regarding service levels. Following amendment, the bill now builds on the best practice of the old service and should ensure that a uniform service is provided throughout all health board areas.
The bill brings something new and meaningful to patients by creating a charter of all rights, and it will make those rights much more transparent and accessible to patients. It will also ensure that patients receive the advice and assistance that they require. However, it will not be the last word on patient rights; it will be for successive Governments to build on the health care principles and ensure that the health service delivers for patients. They will also need to ensure that there is equity of resource, to empower staff to deliver those principles across all disciplines.
16:28
We should see today not as the end, but as the beginning of a process of change in how the NHS handles complaints—especially complaints potentially involving medical negligence. As a constituency MSP, I have found the handling of such complaints the most unsatisfactory aspect of my constituency work. I know that those who get as far as consulting their MSP will represent some of the most difficult cases that we have to deal with, and we all know that many complaints are dealt with perfectly well and that people are generally satisfied with the responses that they receive, but it is clear to me that there is some dissatisfaction with the present arrangements. In passing the bill, the Parliament is signalling its recognition of the need for change.
The current arrangements appear to discourage complaints. That was confirmed in research that was carried out by the Scottish Health Council in 2009, which found that 53 per cent of those who experienced a problem with NHS treatment took no action. Many people believed that lodging a complaint would make no difference, and some patients were concerned that it could affect their treatment and their relationship with health professionals. In addition, many of those whose problem was with medical care were too busy coping with the consequences to complain.
The statutory right to complain that is included in the bill needs to be widely publicised. Also, through new patient advice and support systems, patients must be encouraged to provide feedback on their care, including positive responses when things go well. When necessary, patients should be supported to submit formal complaints, and there should be a clear expectation that they will be treated seriously and with respect.
In my opening remarks I said that there is a need for a culture change. One of the areas in need of such a change is where the complaint refers to an action that could be defined as medical negligence. Because many patients and staff believe in the NHS as a mutual organisation, such complaints cause particular difficulties. I know that they consume vast amounts of clinicians’ and managers’ time and that, too often, they damage the relationship between the NHS and patients.
In parallel with the bill, the Government is taking advice on a system of no-fault compensation. I know that such a system will not resolve all complaints of medical negligence, but it could focus attention on learning lessons rather than having managers and doctors fighting off inquiries of patients or, indeed, lawyers. I look forward to seeing the final outcome of that work.
As has been said often throughout the debate on the bill, managing complaints within the NHS must strike a balance between the managerial and the clinical. The approach that is adopted by clinicians, especially senior consultants, will be a critical factor. Complaints should be seen not as a threat but as an opportunity for service improvement or as an opportunity to learn, as Richard Simpson said.
I hope that everyone who works in the NHS—clinicians, management and staff—will embrace the bill as a major step forward and a golden opportunity to make Scotland a better place, and I hope that the chamber will fully endorse the bill at decision time.
16:31
I would like to thank the various organisations and individuals who have given feedback on the bill. They have done so assiduously throughout the process and they must know how much we appreciate their advice and guidance and the way in which they have informed our deliberations. The advice and guidance of the clerks to the Health and Sport Committee are also much appreciated, and I echo the tributes that have been paid by Richard Simpson, Ross Finnie and others to the cabinet secretary for her responsiveness to the issues that were raised during the passage of the bill.
One of the things that emerge quite strongly when we speak to people about complaints processes is that many people simply do not like to complain about health professionals in any role. Patients feel vulnerable and worry that, if they complain, they might suffer some reprisals. I hope that the bill will make the complaining process more effective and ensure that people feel less threatened and that the process has been worth their while. My constituent Eddie MacKay of Aberdour never had the apology that he badly needed from the one person whose apology would have made a difference to him: the chairman of NHS Lothian. Occasionally, we underestimate the value of a simple apology from the most appropriate person. Eddie lost his wife and two sons when they were under the care of the NHS and he has no family left.
The Health and Sport Committee was interested to see the initial qualified welcome that was given to the bill by a variety of patients organisations such as the Royal National Institute for Deaf People and the Scottish Association for Mental Health. The Royal College of Nursing said that the reasons why there are times when care does not match the values that we share are complex, which is why it has consistently argued throughout the passage of the bill that primary legislation is not the means by which we should be trying to make a difference to patients’ rights.
The RCN still believes that, although there have been some positive amendments to the bill, legislation is not the best course by which to improve the rights of patients, so the welcome is not universal—and although, as Ian McKee says, the opposition comes from the producers, the Public Services Ombudsman and the Law Society act on behalf of patients and families and they share the RCN’s concerns about sanctions. However, I am pleased that that issue is now being addressed. Those organisations recognised that the bill was controversial and did not enjoy universal support in the Parliament.
With the adoption of a parents charter, which was introduced by my colleague Richard Simpson, the bill is quite different from that which was introduced. The RCN’s preference was for a patient rights charter. It said that a charter that can be reviewed and revised is preferable to a set of rights that are enshrined in primary legislation, as changes in the future would require further legislation.
The RCN also believes that enshrining patient rights in primary legislation could unbalance the relationship between health care professionals and patients, could be extremely costly and could have unforeseen consequences. In its opinion, those risks outweigh the potential advantages of the bill. In my opinion, only time will tell.
SAMH remains disappointed that most mental health treatment will not be subject to the treatment time guarantee in the bill, but it welcomes the fact that potential changes to the guarantee will be subject to affirmative resolution as it hopes that that will enable treatments such as mental health care to be considered in the future. However, it welcomes the bill overall as a step forward in providing patient-centred, rights-based medical treatment.
A number of organisations believe that the various amendments that have been made to the bill have strengthened it. Many organisations, such as the Law Society of Scotland, have expressed their support for the bill. I welcome the bill and I give it my good wishes for the future.
16:36
As other members have said, we have come a long way since stage 1 of the bill when many members, including me, expressed concerns about the need for it to cover all rights and to ensure that there is a one-stop shop for advice on patient rights, particularly for those who find muddling through the system difficult.
Stakeholders representing those with incapacity said at that time that if there was one thing that they would like to get into the bill it would be a provision on information. Staff too often think that by handing out a sheet of paper they have complied with the need to provide information. There is a responsibility to ensure that a patient understands the information that they are given and that it is given to them in a way that enhances their understanding. I believe that we have certainly moved that agenda forward today.
I am grateful for the support from across the chamber for recognising in particular the needs of those who lack capacity. I do not want to rerun the debate on my amendment 1A, but I think that as we give examples such as Braille and other languages we did the right thing in also highlighting the needs of those who lack capacity.
I think that the bill is a piece of legislation about which we can say we worked together to make it better. Like Ross Finnie, I pay tribute to the work that Richard Simpson put in and from which we have all benefited. I am also grateful to the cabinet secretary for the support that she gave my amendment.
Rights are meaningful only if one knows what they are and how to claim them. I believe that the bill ensures greater fairness and greater equity in the system for all patients but, in particular, it reinforces the position of elderly vulnerable people with Alzheimer’s and dementia and those who lack capacity. I am pleased to commend the bill to the chamber.
16:38
I am the convener of the Subordinate Legislation Committee. I and my colleagues on the committee have been fairly involved with the bill, so as well as thanking the clerks to the Health and Sport Committee, the members of that committee and the cabinet secretary and her team, I put on record my thanks to the clerks and the legal team who back up the Subordinate Legislation Committee and to my colleagues, three of whom—Rhoda Grant, Helen Eadie and Ian McKee—have taken part in the debate. That level of knowledge on my committee has been extremely useful.
I will touch briefly on the debate on the amendments this afternoon. I welcome the give by the cabinet secretary when she agreed with my committee’s concerns about the suspension of the treatment time guarantee and granted a role for Parliament for suspensions in excess of 30 days. It would be churlish not to acknowledge the cabinet secretary’s constructive approach. I think that that has led to the bill being improved and it has safeguarded the role of Parliament.
In the brief time that is available to me, I will touch on three points that have been well made in the debate. The cabinet secretary said that we have “genuinely excellent care” in the NHS. We have all experienced that. I had a small operation on an eye in Aberdeen royal infirmary and I cannot fault Mr Reddy, the consultant ophthalmologist, and his team for the treatment that I received. I know that others have received such treatment.
Secondly, Mary Scanlon referred to Richard Simpson’s mention of patient responsibility, which is absolutely correct. We, as elected members, should never forget about it. I have talked before about elderly people who hoard medication, do not take it properly or do not tell the doctor about it. That is all about responsibility.
Thirdly, I echo the point that Willie Coffey made late in the debate: do we really want to see doctors wade their way through heaps of complaints? Indeed we do not; that is a terrifying prospect because it would get in the way of what they should be doing.
I will finish with a point about what I consider to be patient rights, which I made on 17 November when we debated the bill at stage 1. I represent a vast and far-flung rural constituency. The rights that my constituents have talked to me about, which I have mentioned before—the cabinet secretary will be glad to see me out of this chamber in a few months’ time—include an ambulance service that works; a patient transport service that is not just a one-way service that takes people to Inverness and leaves them there; access to dentists; and the ability to get treatment and not be disadvantaged because of where one lives.
I welcome the bill. I take on board my colleague Ross Finnie’s caveats about whether we really need legislation to put in place a charter. I do not remember there being legislation for the citizens charter of a one-time Government at Westminster. Nevertheless, we are where we are. We have worked together and put together a bill that is to the betterment of health in Scotland.
This morning John Farquhar Munro and I had a visit from staff from citizens advice bureaux in Ross-shire. Day in, day out, those people are at the sharp end of dealing with the stuff that we are discussing today. They were not aware that we would have this debate today, but they said, “It’s a very good bill. Would you and John Farquhar please support it?” I have great pleasure in doing so.
16:41
The context of this debate is of course patients’ right to complain in the national health service. I think we all agree that the national health service is a very good institution that provides a very good standard of care, but it is not perfect—nothing on this earth is—and, on occasion, people have reason to complain.
In my experience—others have touched on this point—people are reluctant to complain. Earlier in the week I met young mothers of babies who had been born with neonatal issues and who had spent some time in hospital. Even though the mothers identified that there had been problems with their children’s treatment, when I asked them whether they had complained they said that they felt very reticent about doing so, because the care that they had received from the staff whom they had encountered was of a high quality and they felt that making a formal complaint would denigrate that, even though they had legitimate concerns about some of the administrative approaches to how they were dealt with—there were particular issues around staffing levels and the funding of the resource. We have to be conscious of that issue.
Ian McKee made a good point in his contribution about the NHS not being free. We assume that it is a free service, but of course we pay for it through our taxes. As the people who pay for it, we are quite entitled to expect a good-quality service in exchange for the money that we put in. Sometimes we are reluctant to complain—we see that often.
We all deal with constituency cases of people who are complaining. Very often they want to make a complaint because they are at the end of their tether with the health service. They feel that all they wanted from someone in charge was a simple apology for the way that they, or perhaps an elderly relative, had been treated. Sometimes they end up going down the legal route simply because they feel that no other road is open to them.
I know that we are continuing to develop complaints handling in the NHS. We have to look at how we make it easier for people to make complaints and get an apology without necessarily having recourse to a formalistic and legal route.
The Scottish Conservatives did not believe that the bill as originally proposed would achieve anything worth while. We agreed with many of the medical groups who said that it was unwise to seek to enshrine patient rights in primary legislation. I have a lot of sympathy with the remarks that Ross Finnie made in that context.
In addition, concerns were expressed at stage 1 about the treatment time guarantee and the employment of patient rights officers. We thought that there was no point in having legal rights in the bill if they could not be enforced, and we thought that making the rights legally enforceable would create more problems than it would solve and would create the doleful prospect of a lawyer at every bedside—doleful, that is, for everyone apart from the lawyers, who I am sure would welcome the extra work.
However, after something of a comprehensive retreat on the part of the cabinet secretary, the bill was transformed beyond recognition at stage 2. It now provides for a patient rights charter, which we can support. As Mary Scanlon said, it was the Conservatives—indeed, I think it was Michael Forsyth, in the Scottish Office—who proposed a patient charter 20 years ago. I am sure that in the spirit of political consensus Lord Forsyth would be delighted that the Scottish Parliament is following his leadership today.
In briefings on the bill, the British Medical Association and the RCN continued to express concern about enshrining rights in legislation, but both organisations conceded that the creation of a patient charter is a sensible alternative. The amendment of the bill in that regard was a sensible compromise, which I hope the BMA and the RCN regard as an improvement.
The bill has also been amended to remove the provisions on patient rights officers. We were far from convinced that the NHS needed between 65 and 80 full-time-equivalent new posts, which would take money from the health budget that could be better spent on front-line services. The bill was improved by the deletion of the provisions.
We remain concerned about the treatment time guarantee. At stage 2, an amendment in the name of the cabinet secretary included provision to require NHS boards to take account of the clinical needs of all patients and prioritise appropriately as they try to meet the treatment time guarantee. The amendment helped to dilute our concern that health boards would skew clinical priorities as they strove to meet the guarantee.
As I said, the bill has changed beyond recognition. For that reason, we welcome it. Although we still have some reservations, we think that it is worthy of support. However, it is not the bill that the cabinet secretary intended. Our passing of the bill will be a victory for the Parliament over the Government.
16:47
As Mary Scanlon said, we have travelled far with the Patient Rights (Scotland) Bill, which has been considerably improved since its introduction. I thank the Health and Sport Committee, the bill team, the clerks and everyone who contributed to the process.
We all supported the concept of patient rights in principle, but it is fair to say that many members were less than convinced by the bill when it was introduced—we heard from the Liberal Democrats and the Conservatives in that regard. Indeed, the need for legislation was questioned. The Health and Sport Committee was unable to make a recommendation to the Parliament because its members thought that the bill would lead to confusion and that far from enshrining all patient rights it was narrowly focused. We shared those reservations but we decided to persist and try to make the bill better.
The Scottish National Party’s manifesto pledge was to give every patient
“a legally binding waiting time guarantee”.
The bill falls short of that commitment. It was interesting to hear from Ian McKee, who is passionately against such an approach. I am not sure that he felt like that when he stood for the Parliament on the SNP manifesto in 2007, but I welcome all converts.
Many witnesses thought that the lack of sanctions in the bill is a potential weakness. However, we do not want to foster a culture of litigation or create a bonanza for lawyers, so the approach is ultimately right.
Ross Finnie was right to question the basis for legislation. The bill has little legal effect and we need to be careful not to heighten expectations among the general public of what it can achieve. We need to be careful to ensure that legislation is more than simply declaratory or assertive of something. We need legislation that sensibly advances patient rights within a framework that recognises the mutuality of the NHS and the balance that should exist between rights and responsibilities of patients and staff.
We favoured an approach that would enable the cabinet secretary to introduce a comprehensive charter of rights. Like many members, I pay tribute to my colleague Richard Simpson for his work on framing amendments to give effect to that. I am also grateful to all the parties that are represented in the chamber and to organisations that supported that change, such as the RCN and SAMH. There are many things in the health service that are not conditioned by legislation, but health boards are in no doubt about their importance. Richard Simpson was, of course, correct to point out that the charter mirrors the approach that was taken by the previous UK Labour Government in England. That is welcome.
There is no doubt in my mind that we need to improve the NHS complaints system. It is not fit for purpose and I am not sure whether the NHS learns lessons as a result of the complaints that it receives. Helen Eadie was right to point out that most people who come to us to describe an unhelpful experience in the NHS do not really want to complain; in many cases they simply want the NHS to apologise. We should never underestimate the power of just saying sorry, but it is important that people also want the NHS to learn from mistakes so that no one else has to experience what they experienced. The modernised system, which reflects that used by the state hospital, is much more positive. There should be compliments, as it is right to praise people when they do something right, comments that may be an early indication of potential problems, concerns that enable people to prevent a problem from escalating, and, finally, the possibility of making complaints.
Members have referred to no-fault compensation as being the missing link in the complaints system. We welcome the review group’s report. We should look closely at how such a scheme would work in practice for the benefit of patients, the NHS and its staff. If it enables us to say sorry, which is what most relatives want to hear, we should embrace it.
We acknowledge that the passing of the bill will bring renewed focus on patient rights, but we need to be careful not to overclaim what it will achieve. We are all passionate about the NHS, which Labour created in 1948, and we all value NHS staff and all their hard work in treating our constituents and families. We believe in a mutual NHS that is patient centred and we all want the best for every patient every time. Labour members believe that the bill represents a further step on that journey and we are pleased to support it.
16:52
I thank all colleagues who have spoken in the debate for their thoughtful contributions and their work as the bill has progressed through Parliament.
A number of members, including Richard Simpson, Ross Finnie and Mary Scanlon, said that the bill has improved as it has progressed through the parliamentary process. I agree with that—I think that that is the purpose of parliamentary scrutiny. Unlike Murdo Fraser, I do not consider that improvement to be a victory for Parliament over Government or vice versa. Rather, it is an example of Parliament working as it should work and of what it is all about. It is to the credit of all of us that we have emerged at the end of stage 3 with a bill that is stronger than it was at the beginning of stage 1. I put on record my thanks to everybody who has helped to make that possible.
Several members spoke about the charter. I, too, agree that the charter is an important development and avoids the creation of a hierarchy of rights or the suggestion being given out that only the rights in the bill matter and other rights are somehow diminished as a result. That was never the bill’s intention. However, I am not sure that I would agree with my Conservative colleagues that it takes us back to the days of the Tory charter of patients’ rights; perhaps we can agree to disagree on that. The rest of us will probably hope that the charter will last longer and will have considerably greater impact than the charter that the Conservatives referred to.
Several members, including Richard Simpson, Ross Finnie—I think—Ian McKee and Willie Coffey, raised the issue of the linkages between the bill and no-fault compensation. Members will be aware that the report of the expert group that we set up to look into no-fault compensation, chaired by Sheila McLean, was published earlier this week. I thank that group for its work—it has produced a very good report. It will be for the Parliament in the next session to decide how the work progresses, but I am proud that the Government has made progress in that direction. I very much hope that we will be able to continue that work in the next session.
Mary Scanlon, Ross Finnie and other members raised the issue of the right to complain. As Ross Finnie said, he and I have had discussions throughout the passage of the bill about the right to complain. [Interruption.]
Sorry, but could whoever has the electronic instrument that is making that noise please turn it off?
I do not think that it is mine, Presiding Officer but, just in case, I have asked my colleague to remove it from my desk. It is a bit uncomfortable that I am talking about the right to complain at the moment.
Ross Finnie made the point that at present people who complain are not told that they cannot complain because they have no right to do so. That is of course true but, in many respects, the measure is not at its most important when it comes to those who exercise the right to complain, although I believe that raising the status of the complaints process will help to improve the process of complaints handling, to which all members have referred. In a sense, that aspect of the bill is most important for those who do not exercise their right to complain because they feel that it is disloyal to the health service or perhaps because they fear repercussions. We are saying to them that there is a legal right to complain, that it is all right to exercise it and that it is actually in the interests of the health service to do so. That is important. The provisions on patient feedback are also important, because we must encourage a two-way relationship.
Several comments have been made on the treatment time guarantee. Perhaps we do not have time for a pedantic argument at this stage in the afternoon, but I say to Jackie Baillie that a guarantee that boards are required by law to abide by seems to me to be a legally binding guarantee in anybody’s language. Therefore, I am pleased that that is yet another manifesto commitment delivered by the SNP Government.
I am clear that the intention behind the SNP’s commitment to a legally binding guarantee was to give patients recourse to litigation. The bill does not do that.
Not for the first time, Jackie Baillie is writing things into the SNP manifesto to assert that we have not delivered them. We have delivered what we said we would, and more. That is extremely important. The measure builds on the progress that the Government has made on reducing waiting times. As Ian McKee rightly said, it ensures clinical discretion, but it also ensures a long-stop guarantee for patients, which is absolutely in their interests.
In each and every one of the respects that I have mentioned, we have reached a point at which we have a bill that will make a tangible, appreciable and meaningful improvement to the way in which patients interact with the health service. At stage 1, when I gave evidence to the Health and Sport Committee, I said that the bill was in part about trying to bring about a culture change in the health service. That led to something of a philosophical debate with Ross Finnie—I always enjoy my philosophical debates with him. However, I believe that the point is important. We talk a great deal about partnership working and mutuality. The bill takes us further along the road to making those aspirations a reality. It firmly and clearly puts patient rights at the heart of the health service. It says clearly that the health service has a duty to ensure that the manner in which patients are treated, and not just the quality of the clinical care that they get, matters. It says that the health service has a duty to ensure that it lives up to and delivers the highest standards at all times. That is important.
I am proud that the SNP Government, helped by the Opposition parties, has achieved a situation in which the Parliament is the first in the UK to legislate for patient rights, which is a significant step forward. I again thank everybody who has contributed to the process. [Interruption.]
Quiet, please. There is far too much noise in the chamber.
I am glad to say that, this time, it is not being caused by my mobile phone, which is good.
I have already thanked the Health and Sport Committee. I thank the Opposition parties and the officials. Finally, I thank the groups who contributed to the bill through written evidence. They have helped in the process of making it stronger. I have no doubt that we will shortly pass a bill that will strengthen patient rights and help to make the national health service in Scotland the very best that it can be.