Ross Finnie on Patients Rights Bill: What the Scottish Liberal Democrats would do

I have just had the quick chat I hoped for with Ross Finnie about the Patients Rights Bill due to be debated at Holyrood this afternoon. He told me why the Liberal Democrats are so opposed to it and what he would do in its place.

Ross started off by giving a bit of background about how we'd got to where we are with this Bill. He told me how the legislative process had started off with a consultation during which patients' groups had expressed a desire for something which brought patients' rights all together in one easily understood document, but they didn't want a lawyers' charter. The SNP Government ignored a lot of what they were saying and brought forward this very limited Bill with its clause 18, which makes it unenforcable.

He said to me that even then, this Bill had brought all the rights together, then it might have had some merit. However, he then went on to list 17 fairly fundamental rights which the Bill leaves out. These include things like the right to a GP, to mental health advocacy, to a second opinion. Even something as basic as requiring all health professionals to show due care and attention just isn't there.

I asked him what he would do if he were the Cabinet Secretary for Health. He said that he was impressed with what had happened in places like England and Australia where a Patients' Charter had been revised and updated in consultation with Patients' Groups. These documents were written in plain English and were easily accessible.

I actually went looking and found that the Australian version shows another glaring omission from the Bill - something as basic as the right to privacy and confidentiality.

Anyway, back to Ross. He told me that he'd make sure that the Charter was more than words on a page if he were the Cabinet Secretary by issuing it as a direction under the NHS Scotland Act 1978 requiring NHS boards to comply with it. I asked what that would mean for the patient. He said that rather than go through an expensive and lengthy legal process, a simple letter to the Cabinet Secretary showing how the Board was failing to comply with their direction would be an option if the complaints process failed to provide a satisfactory response.

I asked him about resolving complaints as I had often felt that better communication with patients and their families and a more genuine approach to complaints could resolve many issues satisfactorily at a much earlier stage.  Ross said that what most people actually wanted was an apology when things went wrong, and that was one thing that they were often denied as NHS institutions felt that to offer one would be to concede legal liability. He wants to see some sort of non litigious settlement procedure where people can have that sort of honest discussion.

He said that the only bit of the Bill which had "serious merit" was the Schedule at the end (which you can find here on page 12). "What Patients' Rights Groups want, " said Ross, "is not a half baked law, but high quality, patient centred care and good communication to be elevated. The Schedule should be the basis for action, not tacked on at the end."

He expressed his frustration that Labour, who have argued against the substance of this Bill from the start, saying how bad it was, have now inexplicably decided to support it.

My conversation with Ross confirms my earlier instinctive view that this Bill will ultimately offer as much benefit to patients as a chocolate teapot. In fact, it omits so many basic and fundamental rights that it could actually be counter-productive. As ever, it's the Liberal Democrats who look beyond the words and see how the law will work in practice.

What's not to love about the Patients' Rights Bill?

This afternoon, the Scottish Parliament will be debating the Patients' Rights Bill.  Surely this must be a good thing, to set out what patients can expect from their NHS. I mean, who could possibly object to Clause 1 (2) which says:

Health care is to—

(a) be patient focused: that is to say, anything done in relation to the patient must take

into account the patient’s needs,

(b) have regard to the importance of providing the optimum benefit to the patient’s

health and wellbeing,

(c) allow and encourage the patient to participate as fully as possible in decisions

relating to the patient’s health and wellbeing,

(d) have regard to the importance of providing such information and support as is

necessary to enable the patient to participate in accordance with paragraph (c) and

in relation to any related processes.

Well of course health care has to be patient centred and patients have to be fully aware of what's going on around them. I know how it used to be as I have personal experience of care not focusing on the patients' needs.  When my mother in law was diagnosed with terminal Cancer and given weeks to live many years ago, her consultant never told her. He told my husband and said he'd have a frank discussion with his mum about her situation - which he never did. She never talked about what the consultant had said to her and my husband never brought it up, each thinking the other knew and couldn't bear to discuss it.  Eventually his mum took control of the situation when she realised she wasn't really getting any better and insisted that the medics told her the full truth. A lot of time had been wasted, though.

And then we had the district nurse, who was a lovely woman, coming in every day being bright and jolly and encouraging his mum to eat and not really looking at where she was at. Tumours in the stomach don't generally give people a huge appetite. It took a very frank and occasionally fractious conversation with me for her to get her head round what she needed to do. She was just focused on patients getting better, but really didn't have much empathy and understanding of how to deal with it when that wasn't going to happen. She did get it a lot better after our conversation and made sure that we then had the Macmillan nurses as well as her who were beyond fantastic. Generally, though, I feel that if my mother-in-law's care had been truly patient focused, she wouldn't have had to go through the majority of her final weeks without her being able to make decisions about the real issues she was facing.

Anyway, I digress. I saw on Twitter last night that the Liberal Democrats in the Scottish Parliament are voting against this Bill. Given that we would naturally be in favour of people centred public services, and given my trust in Ross Finnie, our health spokesman, I guessed that there would be a good reason. So, I read the rest of the Bill and I started to see why.

We have all those wonderful principles in the initial clause which are almost immediately countermanded by Clause 2. Yes, we'll do all of those nice things, it says, but:

"In construing the right of a patient under section 1(1), the matters set out into Section 2 below must be taken into account"

(a) the rights of other patients under section 1(1),

(b) the desirability of action delivering health care being proportionate, and otherwise

appropriate, to the circumstances of each case,

(c) those specified in section 18(1)(a) and (b).

 Sorry, but the words in a and b seem to me to be a fairly substantial get out clause to me. And that's before you even get to clause 18 (2)  which is a really big sting in the tail:

Nothing in this Act shall give rise to:

any liability to pay damages; any right of action for specific implement; any right of action for interdict; any right of action for suspension;

So, you have a bill which basically says:

Dear Patient,

We think you should be treated within 12 weeks, and we think your care should be patient focused and all sorts of other good things. We'll give you a few rights, and then we'll give ourselves a get out clause so we can argue against delivering them, and then we'll make sure that although you might be able to complain, there is nothing you can do to enforce your rights.

Cheers,

The Government

Patients Rights Bill? Chocolate Teapot Bill, more like.

I also looked up the Scottish Government's FAQ on the Bill. I think that one of the areas where the NHS isn't delivering appropriate and fast enough treatment is in mental health. People just don't get the support they need quickly enough. Mental health services aren't excluded from the Bill, but there's a big but.

The treatment time guarantee will apply to mental health services where they are delivered as planned and elective care on an inpatient or day-case basis.

This is likely to have the biggest impact on child and adolescent mental health services, because they make more use of planned admissions than other mental health services, which are often used because of a crisis or emergency, where it would not be appropriate for patients to wait for treatment.

To me this seems like mental health services are only included where they involve some sort of hospital admission and not, for example, access to a Community Psychiatric Nurse. It stands to reason to me anyway that if people have the earlier community based intervention, then the need for emergency admission, or planned hospital admission is minimised. Why not have the guarantee where it can make the most difference?

There's a lot of emphasis in the Bill on Patients' Rights Officers, too. Tavish asked at FMQ earlier this year about whether we should really be spending £1.2 million on effectively more administrators at the same time as we're cutting nurses. I mean, it's all very well to have people walking around with clipboards and Excel spreadsheets pointing fingers if targets aren't met, but what are they going to do about it if operations aren't carried out in the 12 week guarantee time? Are they actually going to scrub up and get into the operating theatre? Wouldn't an extra nurse be better?

I'm hoping to grab a chat later with Ross Finnie, to talk about what he thinks should be done instead, and why he thinks this Bill is so bad that it deserves outright opposition rather than amendment. If that happens, you will be the first to know.