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.
[1] The sections of the Act relating to the Treatment Time Guarantee will come into force on 1 October 2012 and the provisions relating to payments to patients infected with Hepatitis due to NHS treatment came into force on 31 March 2011.
[2] An example of this is a Patient’s Right to be treated in a manner which is least restrictive on their freedom. The 2003 Act provides a specific right of appeal against detention in conditions of excessive security.
