This is the first in a series of articles by Paul Thompson of PT Legal.  Paul specialises in mental health and incapacity matters.

Patient Rights (Scotland) Act 2011

My first article focuses on the new Patient Rights Act and the proposed secondary legislation which is currently under consultation.

Background

The aim of this Act is to improve the experience of using the NHS in Scotland and getting patients more involved in their health care.  The Patient Rights (Scotland) Act received Royal assent on 31 March 2011 and the main statutory provisions come into force on 1 April 2012 [1].

New Rights for Patients

The Act gives all patients the right that the health care they receive from the NHS in Scotland should:

-          take into account the patient’s needs

-          consider what health care would be most beneficial to the patient

-          consider each individual patient’s circumstances and preferences

-          encourage patient participation in health care decisions

-          provide the patient with information and support allowing them to participate

Health Care Principles

In addition to the above rights patients will now benefit from “Health Care Principles” contained in the Schedule to the new Act. The following principles must be applied by all providers of NHS health care in Scotland: Patient Focus; Quality Care and Treatment; Patient Participation; Communication; Patient Feedback; Waste of Resources. A more detailed look at these principles will be the subject of a future article in this series.

Treatment Time Guarantee

Health Boards in Scotland must ensure that certain groups of patients receive medical treatment within 12 weeks from the date the treatment has been agreed.  Secondary legislation is currently under consultation and will detail which groups of patients will be covered by this new guaranteed treatment time. The draft legislation applies to patients due to receive planned or elective treatment on an inpatient or day case basis, however, it excludes specific treatments such as assisted reproduction and transplants which are dependent on the availability of organs.

Patient Advice and Support Service

The Act creates a new Patient Advice and Support Service to help patient’s understand and exercise their rights under the Act. This new support service replaces the current Independent Advice and Support Service provided to patients by the Citizens Advice Bureau.

Hepatitis C compensation payments

The Act extends the current compensation scheme contained under Section 28 of the Smoking, Health and Social Care (Scotland) Act 2005 which is currently applicable to those who acquired hepatitis C as a result of NHS treatment and who did not die before 29 August 2003.

The Patient Rights Act amends the 2005 Act to allow for compensation payments to be made to dependents of patients who acquired hepatitis C as a result of their NHS treatment but died before the cut off date of 29 August 2003.

Protections and Limitations

If you have been reading this article and thinking, as I did, that these guaranteed patients rights sound too good to be true, then read on. Section 20(3) of the Act will be of particular interest to lawyers as it contains a “get out clause” for NHS Health Boards and provides:

(3)  Nothing in this Act gives rise to—

(a) any liability to pay damages,

(b) any right of action for specific implement,

(c) any right of action for specific performance of a statutory duty,

(d) any right of action for interdict,

(e) any right of action for suspension

Imagine the situation where a doctor has agreed that a patient requires life saving treatment. The Act now guarantees that the patient will receive treatment within 12 weeks. If the patient does not receive the treatment within this guaranteed time scale (for example due to lack of funding or bed availability) the patient is then left with no legal remedy for the breach of their rights.

On closer examination this Act appears to provide patients with new rights and guarantees whilst at the same time deliberately rendering them unenforceable. In direct contrast to this odd state of affairs we have the Mental Health (Care and Treatment) (Scotland) Act 2003.  The 2003 Act contains “Guiding Principles” which guarantee a patient rights when receiving compulsory medical care and treatment and these rights are legally enforceable. These principles must be adhered to and the act provides specific legal remedies to ensure they are complied with[2].

In light of the lack of enforceability of the rights and guarantees contained in the this Act the following point still needs to be debated: could the money spent on producing this Act and subordinate legislation have been better invested in providing patients with actual medical care and treatment.

It could be argued that these new rights and guarantees could simply have been incorporated into NHS Health Board’s policies as the limitations and lack of enforceability of these rights under the Act add no greater legal protection to the existing rights of patients.

A full copy of the Patient Rights (Scotland) Act 2011 can be found at: http://www.legislation.gov.uk/asp/2011/5/contents/enacted

Paul Thompson
Principal Solicitor

      Tel: 0800 118 5240
      Fax: 01475 600 377
      Mobile: 07950 948837
      Email: paul.thompson@ptlegal.co.uk
      Web: www.ptlegal.co.uk

In my fourth article in this series I am looking at the UK Government’s decision to withhold Attendance Allowance funding when the then Scottish Executive decided to introduce its policy of Free Personal and Nursing Care (FPNC).

First thing’s first.  What is Attendance Allowance?.  Attendance Allowance is a tax-free benefit.  You may get Attendance Allowance if you’re aged 65 or over and need help with personal care because you’re physically or mentally disabled.

A reminder of what the 2007 Sutherland review of FPNC recommended on this issue:

“Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.”

When researching this issue I also found an interesting article by the economists, Jim and Margaret Cuthbert.  The main point of this article is that the Department for Work and Pensions (DWP) and HM Treasury breached their own rules in coming to this decision.  The full article can be found here.

The decision to withhold Attendance Allowance funding appears to have more to do with not understanding that devolution means the power and ability to do things differently.  When you consider the reaction to other proposals such as a local income tax or the devolving of corporation tax powers a pattern appears to be forming.   It is also worth noting that institutions such as DWP and HM Treasury are meant to act for the whole of the UK.

The Scottish Government has launched a consultation on the proposed secondary legislation to support implementation of the Patient Rights (Scotland) Act 2011 and in particular the regulations and directions relating to the treatment time guarantee, patient feedback, comments, concerns and complaints and the Health Care Principles to be upheld by relevant NHS bodies and service providers.

The consultation can be found here.

A number of guides and booklets on “People with Learning Disabilities and the Scottish Criminal Justice System” were published by the Scottish Government on 8 August 2011.

These useful guides and booklets can be found here.

The Office of the Public Guardian from 25th July 2011 and will no longer issue temporary welfare certificates when joint welfare and financial guardianship orders are granted.  This change in practice will be reviewed in January 2012.

More information can be found here.

HMRC has updated its guidance on “Payments to overseas bodies”.   The guidance outlines what constitutes “charitable expenditure” and gives a number of useful examples. 

The updated guidance can be found here.

In part 2 of this series of articles I looked at the Dilnot Commission and its recommendations on how to fund social care in England.

In this article I will look at the: “Independent Review of Free Personal Care in Scotland”, often referred to as the Sutherland Review.  Although not as wide-ranging as Dilnot, the Sutherland Review is important as although it concentrates on Scotland’s Free Personal and Nursing Care (FPNC) policy other connected issues are covered.

Lord Sutherland was asked in the summer of 2007, shortly after the SNP minority administration took office, to carry out an independent review of FNPC.   The findings of the Sutherland Review were published in April 2008.  More information, including a complete copy of the Sutherland Review. can be found here.

Before I look at the Sutherland Review in more detail it is probably useful to remind ourselves what FPNC actually is.   FPNC was introduced across Scotland on 1st July 2002.  Free Personal Care is a legal entitlement for people aged over 65 or over who have been assessed as having personal care needs that require services to be put in place.

Any personal care service which does not fall into this definition will continue to be charged for.   Subject to an assessment by the Social Work Service, Personal Care can include:-

• Personal hygiene (e.g. bathing/showering).
• Continence management (e.g. toileting/bed changing).
• Food and diet (e.g. assistance with food preparation).
• Problems of immobility (e.g. help to move around).
• Counselling and support (e.g. reminder device).
• Simple medication (e.g. creams/ eye drops).
• Personal Assistance (e.g. dressing/going to bed).

Free Nursing Care is similar but is available to people of all ages who are assessed as requiring nursing care services.

The remit for the Sutherland Review was in four parts.

1. The funding available for FPNC.
2. The distribution of resources between local authorities.
3. The impact of the withdrawal by the UK Government of Attendance Allowance from people receiving FPNC.
4. How to ensure that funding for the long-term care of older people is sustainable.

Before I list the Review’s recommendations it is worth noting the concerns that had arisen over the first 5 years of the operation of FPNC.   There are:

1. Questions had been raised about the consistency of provision between different local authorities.   This included the use of waiting lists with different eligibility criteria from one authority to the next.
2. There has been continuing debate about specific issues such as food preparation.
3. Questions had been raised about the practical implications of the legal ruling in the “Macphail” case. [i]
4. Allowances for residential care have not been raised in line with inflation.

The recommendations were set out in a twelve point plan.  

The first 9 recommendations are described as “short-term”.  These recommendations were deemed necessary to stabilise the policy and address difficulties in funding and the variability of provision across the country.

1. Address the Funding Gap.  The Scottish Government should provide additional funding to stabilise the policy in the short-term, i.e. for the next 5 years.    It is estimated that the shortfall in funding is around £40 million.
2. Up-rate fixed allowances.  The Residential and Nursing Care Fixed Rate Allowances should in future be up-rated annually in line with inflation.
3. Standardise assessment and delivery.   There should be clear “entitlement” for all those assessed as needing personal and nursing care, analogous with the NHS, and in line with that, local authorities and their partners should consolidate standardisation of assessment  for and delivery of services, to common processes and clearly stated target times.
4. Establish clear national priorities and outcomes for older people.  There should be a specific reference to securing the wellbeing of older people included within the Scottish Government’s 15 National Outcomes set out in its National Performance Framework.
5. Ensure costs are accurately monitored and reported.  The current failings in information systems identified should be addressed and more accurate systems to collect comprehensive and accurate cost information set in place.
6. Improve local accountability.  A performance framework for long-term care services for older people should be built into the Single Outcome Agreement Model.
7. Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.
8. Clarify expectations.  Renew efforts to improve public information and understanding of the policy.  A clear understanding of shared responsibility needs to be fostered.
9. Address cross-border/boundary issues.  Conclude work to ensure greater consistency in interpretation and application of Ordinary Residence legislation and guidance without further delay.

Recommendations 10 and 11 are described as for the “short to medium-term” and are aimed at securing the policy and keeping it under review within the next 5 years.

1. Review and re-model.  The uncertainty associated with projecting future costs of long-term care means demand must be reviewed and re-modelled regularly and be reflected accurately in future local government finance settlements and capacity planning by local authorities and their health partners.
2. Review public funding arrangements.  There should be a holistic review over the next few years of all the sources of public funding for long-term care of older people, including health, social care and housing support, but also UK Government benefit funding, in particular through Attendance Allowance and Disability Living Allowance.

Recommendation number 12 is for the longer-term and which requires more strategic long-term policy planning and vision.

1. Review public funding arrangements.  Government at all levels should seek to establish a new vision for dealing with the challenge of demographic change, not just looking at long-term care, but also pensions, transport, etc.

There was relatively little initial reaction to the Sutherland Review.   Almost every comment made at that time was a positive one.   The lack of reaction can be explained both by the lack of real opposition to the policy in Scotland and also the financial crisis that had already began when the Sutherland Review was published.   The recent reaction to this policy is therefore of more relevance.

Since April 2008 we have had the Independent Budget Review.   More information on the IBR can be found here.  The IBR recommended that immediate work should be undertaken to review whether all free or subsidised universal services should be retained in their current form.  This is an indirect reference to the policy of FPNC.

We have also had a Scottish General Election.  Helpfully Age Scotland has outlined how each of Scotland’s main political parties how they would prioritise “older people issues” in the next Parliament.   The full report is called “Party Positions for the Scottish Parliamentary Elections 2011”.  [ii]

Scottish National Party

The SNP guaranteed the future of Free Personal Care by filling the £40m shortfall left by the previous administration.   See recommendation 9 of the Sutherland Review.

Labour Party

The Labour party pledged to establish a new “National Care Service” that combines health and care services.   No direct mention of FPNC is made but an indirect mention indicates that the Labour party supports the policy.

Conservative Party

The Conservative party pledged to protect funding for FPNC.

Scottish Liberal Democrats

The Scottish Liberal Democrats pledged their continued support for Free Personal Care.

Two points in particular are worth commenting on.

The first concerns an issue that is not mentioned.  The UK Government’s decision to withhold Attendance Allowance funding due to the introduction of FPNC in Scotland.  That issue is of course dealt with in the Sutherland Review.  Again see recommendation 9 of the Sutherland Review.

The second is the Labour party policy of a “National Care Service”.   Also interested to note that the Labour Party had appointed an expert group , including Age Scotland Chief Executive and former Labour party councillor in London and Campaigns Officer for the Labour Party in London, David Manion.

Also interesting to note that the policy seems broadly similar to what has been proposed by the “Christie Commission”.   More on the funding of the Christie Commission can be found here.

Since the Scottish General Election COSLA has called for a review of FPNC.  In response, both Henry McLeish, First Minister when FPNC was introduced, and Age Scotland have argued strongly for continuing the policy.  The President of COSLA has also in a personal capacity called for FPNC to means-tested.   [iii]

Conclusion

The world we live in seems very different from April 2008.  Public spending in Scotland is declining after many years of year on year increases.  FPNC was the flagship policy of the first Scottish Executive when introduced in 2002 and is still well supported by our main political parties.  How long will this continue remains to be seen.

In my next article I will look at some of the issues raised in the Sutherland Review in more detail and in particular the UK Government’s withholding of the Attendance Allowance funds.

James Aitken

Legal Knowledge Scotland

Firstly, news that an an operator of three Lothian care homes is to take over 11 homes currently run by Southern Cross, which is being wound down due to financial difficulties.  Robert Kilgour, who built up Four Seasons Health Care before selling it, now runs three homes.  The owners of 11 Southern Cross homes, nine in Aberdeenshire, one in Edinburgh and one in Fife are forming a partnership with Mr Kilgour.  The handover is expected to take place within the next two months.

The full report from the BBC can be found here.

The second story concerns a care home in Hawick whose future may be in doubt.

A spokesman for the local Health Board said: “a study of NHS Borders’ services was being undertaken – the Health Board has a much higher proportion of beds than other regions of Scotland.”

One explanation for this, and one reason why this should continue, is the age demographics in places like the Borders.  Stories like this also show how much uncertainty surrounds the care home industry in Scotland just now.

The full story from the Southern Reporter can be found here.