MINISTERS are under growing pressure to scrap a flagship law that they promised would give patients a legal guarantee of prompt NHS treatment, after it emerged it was being flouted in a record number of cases.

 

When the Treatment Time Guarantee came into force in 2012, the Scottish Government said it would give patients cast-iron certainty, enshrined onto the statute book, that they would receive operations within 12 weeks of being put on a waiting list.

However, new statistics have revealed that despite claims that all health boards would hit 100 per cent compliance, the number of people having their legal right breached is spiralling, having doubled since it came into force.

Jackson Carlaw, health spokesman for the Scottish Conservatives, said the claim the law offered a legal guarantee was "becoming increasingly preposterous" as health boards broke the law in thousands of cases in December alone.

"The Scottish Government cannot offer any kind of reassurance to patients whose rights it said it would enshrine in the constitution," he said. "Instead of papering over the cracks with words that have proved to mean nothing, the SNP should scrap this charade and come up with a meaningful plan of action."

From October to December last year, as hospitals faced a growing bed crisis over winter, more than 2,300 patients received operations having waited longer than the guarantee period, around double the total recorded in the first three months that it was possible for health boards to breach the new law.

Over December alone, when compliance dropped to its lowest level since the legislation was introduced, another 1,800 patients were stuck on waiting lists having waited beyond three months.

The picture has worsened significantly since a year ago, when NHS chief Paul Gray admitted he was "not fulfilling the will of the parliament" regarding the legislation and then-health secretary Alex Neil said health boards "are going to get 100 per cent."

Dr Peter Bennie, chair of the BMA in Scotland, said his organisation did not believe that a "political guarantee" over specific waiting times should ever have been written into law.

He added: "During the progress of the Patient Rights Bill, the BMA lobbied for this legally binding guarantee to be removed, this was because in our view, the widespread use of centrally imposed treatment time targets has many unintended consequences, distorts clinical priorities and harms patients.

"Any objective which encourages clinicians to take actions which are potentially not in the patient's best clinical interests is unhelpful. This is even more problematic if there are associated managerial imperatives which may further distort clinical decision making."

Health boards face no penalties for breaking the law. They are expected to write to the patient whose right has been breached and individuals do not have recourse to legal action, other than seeking a judicial review.

The legislation states that if a patient cannot be treated within the timeframe in its own area, a health board can send them abroad for treatment. However, when health boards moved to prepare to send patients abroad to ensure they complied with the legislation, ministers poured cold water on the plan.

Of the patients who had operations between October and December and had their legal right breached, 85 per cent came were in the Grampian, Highland and Lothian regions. It was announced yesterday that NHS Lothian and NHS Highland will receive an extra £9m to help address challenges.

Scottish Labour stopped short of calling for the law to be scrapped, but said more should be done to ensure the legislation was adhered to. Health spokeswoman Jenny Marra said: "The SNP gave people a legal right in 2012 to be seen within 12 weeks. That law should be enforced."

Meanwhile, other key NHS targets were also breached. Although not covered by the Treatment Time Guarantee, almost one in ten patients waiting for outpatient appointments waited more than 12 weeks, compared to one in 30 two years ago after demand soared by a quarter in the period.

In three months to December, Child and Adolescent Mental Health Services saw 79 per cent of patients within 18 weeks, falling short of their 90 per cent goal.

A separate target, which states that 90 per cent of patients should wait no longer than 18 weeks from referral to treatment, was missed by five of Scotland's 14 health boards in December.

Health Secretary Shona Robison said health boards were delivering "some of the lowest waiting times on record." She added: "This performance was maintained as we headed into the challenging winter period last year, but we know we must do more to meet some of the rightly demanding targets we have set. Patients would expect nothing less.

"Today's figures showing that 97.1 per cent of inpatients and day-case patients were seen within 12 weeks. However, much more needs to be done and we are committed to getting the right structures in place to ensure everyone is seen within the target time."