Policy responses and statements

Name of organisation:

Scottish Executive

Name of policy document:

Patients' Rights - A Public Consultation on a Patients' Rights Bill for users of the NHS in Scotland

Deadline for response:

16 January 2009

Background: The action plan Better Health, Better Care committed the Scottish Government to ensuring that NHS Scotland is based on a mutual ethos. Delivering the Government's vision of a mutual NHS requires it to set out what patients can expect from their NHS and what the NHS can expect from them.

The Scottish Government wants to create a clear legal framework of rights for patients to support them in knowing what their rights are and to provide effective redress where they consider that their rights are not being fully delivered. In doing so we need to avoid encouraging a culture of blame or litigation. The aim is to provide accessible, quick and effective redress through processes that work independently of patients and NHS Boards.

We need to strengthen the rights of patients to ensure that they are seen and treated quickly; treated as partners whose expertise is respected; and informed and supported to be involved in decisions that affect them.

The aim of a Patients' Rights Bill:

The aim of a Patients' Rights Bill will be to reinforce and strengthen our commitment to place patients at the very centre of the NHS in Scotland; to clarify the standards expected of the NHS; and to set out the rights and responsibilities of patients in a clearer way.

Purpose of consultation:

The purpose of this consultation is therefore to seek views on the possible content of a Patients' Rights Bill, which will deliver this approach and form the basis of a mutual NHS.

COMMENTS ON
Scottish ExecutivePatients' Rights -
A Public Consultation on a Patients' Rights Bill
for users of the NHS in Scotland

The Royal College of Physicians of Edinburgh is pleased to respond to the Scottish Executive on Patients' Rights - A Public Consultation on a Patients' Rights Bill for users of the NHS in Scotland.

General Comments

The College agrees with the sentiments in the proposed Bill of Rights and indeed in most respects they mirror the GMC guidelines that reinforce the responsibilities of all doctors. However the College is less certain about the benefit of making all of these entitlements statutory and particularly the resource implications of this initiative. Resources will be required, particularly to deliver access guarantees and litigation could result in resources being diverted from direct patient care as the power of the legislation is tested. The extent (if any) of compensation will add to this pressure. The College’s lay advisors have asked whether it is feasible to enforce legal rights without encouraging a “culture of blame or litigation”.

The consultation document does not state which of these proposed entitlements are enforceable under existing legislation, but presumably these include those related to consent and refusal of treatment, access to a personal health record, confidentiality and non-discrimination. The remaining 4 (to be treated with dignity and respect, within maximum waiting time, in a safe and clean setting and to be involved in treatment choices) are all expectations which the ethics of medicine and the other health care professions would endorse as entirely appropriate.

Whether or not any of these undoubted entitlements has been met in the case of a particular patient will not necessarily always be clear or agreed: dignity and respect, for example, are notoriously difficult concepts to define, and in some cases will be a matter of judgement and interpretation. This may also be the case in relation to the entitlements including safe and effective care, communication, information, participation and privacy, insofar as these rights can be interpreted as going beyond what is enforceable under existing legislation. The likely and perhaps inevitable consequence of setting these rights out in Scottish legislation, is that test cases will be brought to the courts, involving the NHS (or indeed patients who fail to meet their listed “responsibilities”, such as  “attending agreed appointments”) in litigation with its attendant expense. While the precedent of the UK Human Rights Act offers the possibility that the eventual outcome of such litigation may simply be to confirm good medical practice and the provisions of existing legislation, the rights enshrined in the HRA are carefully balanced and based on the universally agreed general principles of the European Convention on Human Rights. Some of the rights in the proposed Scottish Bill include those mentioned above which are difficult to define, and others which are highly specific and may be resource dependent.

Comments on Specific Questions 

Question 1: Access to care and waiting time guarantee

Having a guaranteed period after which access to treatment becomes mandatory is a sound and helpful concept and the College notes the clear references to clinicians retaining the flexibility and freedom to set clinical priorities. It is important that the period indicated is deliverable and that resources are made available to address the current gap with no reduction in quality of care.

Question 2: Dignity and respect

This may be more difficult today than in previous times. The need to respect patients and to involve them needs to be an important element in clinical training at every level. Also secure and accessible recording systems must be available to support healthcare teams to take due account of individual preferences and values.

Question 3: Safe and effective care

This needs to be seen in broad terms, beyond the widely publicised MRSA scares and emphasis on hospital hygiene. The status of patient responsibilities is unclear in this regard, particularly non compliance with agreed treatments.

Question 4: Quality of communication between patients and healthcare systems

The College concerns here are to encourage greater awareness and education among patients to support effective communication with doctors in addition to ensuring communication skills feature strongly within medical training curricula. The proposed Bill of Rights focuses on high level and specific aspects of communication and says little about the professional and community education required to support this important aspect of care. Initiatives such as the RCPE’s “Behind the Medical Headlines” are designed to support general understanding of topical and common medical conditions and funding is required to support these types of projects.

Question 5: Information for patients

See comments to Q4 above.

Question 6: Shared Decision Making

The College supports strongly the principles of shared decision making and recognises that this will create time pressures on staff. This should be factored into workforce planning programmes to ensure patients have sufficient contact time with key professionals to achieve full understanding and informed consent.

Question 7: Privacy and Confidentiality

The development of electronic records brings significant potential benefit to patient but the general public is nervous about the security of such systems and this may impede wider application. It is important that public confidence is improved to encourage participation in essential research and audit.

Question 8: Comments, complaints and redress

The College is unclear of the role of the NHS Board designated independent Patients’ Rights Officers. Also the practical benefit to patients as a result of other (unspecified) new approaches and a report on their local NHS is difficult to determine. The College would be interested to understand more about the costs of these proposals.

The College is also concerned that the plans for a no-fault compensation system in Scotland are unclear, particularly given the recognition of avoiding a culture of blame or litigation and the known difficulties of such systems, e.g. in New Zealand.  Further work will be required to develop a clear policy before implementing such a scheme through a legally enforceable Patients’ Rights Bill.

Copies of this response are available from:

Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.

Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939

[12 January 2009]