Patient Rights (Scotland) Act 2011 - Consultation on Secondary Legislation

COMMENTS ON
Scottish Government
PATIENT RIGHTS (SCOTLAND) ACT 2011 - Consultation on Secondary Legislation

The Royal College of Physicians of Edinburgh (the College) welcomes the opportunity to respond to the consultation on the Patient Rights (Scotland) Act 2011 Secondary Legislation.

General comments:

• The regulations must be easily understood by patients, who should be at the forefront of consideration when implementing these regulations.
• Additional clarity would help in a number of areas, including defining when general feedback becomes a complaint, and making provision for constructive comments to be made informally outside the official complaint system. It is important that both patients and staff know the difference.
• The regulations should not be unnecessarily prescriptive. The more detailed and narrow the regulations, the greater the opportunity to argue that what is not detailed need not be done, and it is not possible to foresee every eventuality.
• Consideration should be given when formulating the regulations to the time required by frontline and non-frontline staff to implement these regulations, and how best their time can be used to provide a high quality service for patients. 

The College has the following answers and comments on specific consultation questions:

Question 1
Treatment Time Guarantee:
a) Do you think that we have covered the right areas in the regulations/directions at Annex B (given what the Act allows)?
b) Do you think we have missed anything that should be covered (given what the Act allows)?
c) Do you have any other observations?

• The definition appears complex and has the potential to be inflexible. For patients who, for example, see different consultants disparate clinic appointments may sometimes conflict, or where appointments are changed at relatively short notice, rigid interpretation of the Act would suggest that if the patient could not change plans in such a situation then they would go back to the start of a 12 week waiting period.
• The regulations are unclear as to when the waiting time period commences and therefore need further clarification. Does the waiting time period begin on the acceptance by the patient of the treatment recommended by the initial treating physician? What would happen if there was misdirection of the referral for treatment or referral delays?
• 3(4)(a) may seem punitive, however it is necessary to reset the waiting time clock to “zero” to ensure that patients understand the operational difficulty of delivering appointments within the guaranteed time.
• 3 (5) (c) may disadvantage people with conditions which may make them unavailable to attend hospital out patients at short notice because of their condition.
• What happens when the service provider cancels the patient appointment? There needs to be responsibility on both sides. What action will be taken against the service provider? Short notice cancellations cause distress and disruption to patients.
• 3(6) as drafted is unclear.
• Regulation 5 doesn't specify the timescale within which a Board must arrange for alternative treatment when it cannot itself meet the guarantee.  It isn't clear whether this should happen before the deadline is reached (ie. so that a breach is avoided) or only once a breach has occurred. What contingency plans have been made to ensure a breach does not occur?

Question 2
Direction 5 incorporates some changes to the current arrangements and suggests that front line staff should be ‘able to handle complaints where appropriate’. Do you have any observations on direction 5?

• This is a difficult area. It is clear that we must ensure that the right to complain does not cloud the culture of open constructiveness that we seek to foster in the NHS. There are real cultural issues which need to be dealt with in terms of handling complaints, and which regulations could well aggravate. This needs to be handled sensitively to ensure there is transparency and equality of service across Scotland. Patients will not make a complaint if they feel it could compromise their future treatment and we should guard against deterring constructive comments with an overly bureaucratic complaints system.
• It is important to define the term “handle complaints”: does this mean handle administratively or actually take action to resolve the problem?  Can a frontline staff member prevent escalation of a complaint by taking action locally to resolve the issue?
• It is probable that some complaints will implicate the person who will be the initial handler of the complaint. Training is therefore vital for staff as to how to handle these situations. 
• Many frontline staff will already be able and willing to handle most complaints appropriately, supported by their undergraduate, postgraduate and continuing professional education. Guidance on the provisions of the Act should of course be made available, but bearing in mind the Act’s own principle of ‘Waste of Resources’, the training and guidance should be designed in ways that take account of the existing professional competencies and motivation of front line staff and are educationally efficient and effective.

Question 3 – Directions 10 and 11
Do you have any observations on the requirements set out in the directions above, including how they would be delivered by relevant NHS bodies and service providers?

• The difference between a complaint and a helpfully intended critical comment is not clear. Bench marking will be important, as there will always be complaints and levels and/or patterns will be useful quality indicators. An aspiration to zero will produce a culture where reporting is inhibited or even hidden, the locked away accident book mentality and where the system finds it hard to learn from legitimate complaints.
• It is important to provide benchmark within and between provider units and specialties. Previous studies found that no such information was available.
• How (if at all) will this information be used when considering revalidation cases?
• Monitoring etc:  10(2)(e) 'remedial action' is unclear.  Does it mean action in relation to the particular complaint or action to prevent a recurrence?  The College believes it is vital that it is made clear that 10 (2) (e) refers to both, and states what will happen in terms of this individual complaint as well as stating what generally will be done to prevent a reoccurrence, ie. general risk management. Direction 8 (1g) provides some explanation but this needs to be clarified.
• 10(3) and Para 13: in both cases the Directions should specify that reports should be reviewed by non-executive members of the Board (probably the Clinical Governance Committee). 

Question 4
Do you have any comments or suggestions about the Directions relating to the Health Care Principles?

• The covering notes state that just 3 of the Principles are covered in the Directions as these were the ones consistently raised during consultation by patients and staff (patient focus and participation and communication. However there are other Directions covering complaints also part of this consultation. There is a risk that these 4 will be regarded as more important than the others because they are backed by Directions. This would be unfortunate as quality care and treatment and the principle of waste are also important.

Question 5
Is there any further information or support that Health Boards will need to implement and deliver the Patient Rights (Scotland) Act 2011 and its secondary legislation?

• It is important that all patients understand what the Act means for them, and can easily access information on the Act and its secondary legislation, for example in the form of a simple leaflet which is widely available.

Question 6.
Do you have any additional comments to make about the Patient Rights
(Scotland) Act 2011 Secondary Legislation?

• It is welcome that the regulations allow health boards the flexibility to ensure that functions are carried out, but do not necessarily require the employment of additional staff , as suitable existing staff could take on extra responsibility  (for example, Part 2 which refers to the Complaints Officer and Manager).
• The College agrees that provisions should apply to all service providers of publicly funded care.
• There is inconsistency in the consultation document as to what constitutes a service provider. Page 13 states:

  “a service provider means any person who provides health services for the purpose of the health service under a contract, agreement or arrangements made under or by virtue of the National Health Service (Scotland) Act 1978. This definition of service provider includes health service providers such as GPs, dentists, opticians and pharmacists, but does not include, for example, contractors such as cleaning or catering providers as the services they provide are not ‘health services’,

  while p.20 states,

  “‘relevant service providers’ means any person with whom a relevant NHS Body enters into a contract, agreement or arrangement to provide health care. This includes health care providers such as nurses, GPs, dentists, opticians, pharmacists, and also other contractors such as cleaning or catering providers.”

  There seems to be an artificial distinction between clinical and service complaints. If catering in a hospital is poor, then it could lead to malnourished patients. If cleaning in a hospital is poor, then it could lead to increased rates of HAIs. The Health Board needs to be the responsible body in these instances as they are contracting the work.

• Partnership working will be needed in terms of social and health care, as it is often difficult to define where social care begins and where health care stops. We feel it is an omission to not require health boards to liaise with local authority and third sector partners over the complaints procedure. The complaints system should be easy to use for patients, and they should not be forced to make distinctions between providers.

A working party including members of the Lay Advisory Committee compiled the response on behalf of the College.