Skip to main content

National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2015

Volume 767: debated on Tuesday 24 November 2015

Motion to Take Note

Moved by

That the Grand Committee takes note of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2015 and of the simplification of the assessment of the maximum waiting time for NHS treatment for elective patients, in the light of the review by Sir Bruce Keogh, and the risk that the current more complex standards could provide a perverse incentive to commissioning bodies to deal with those recently added to the waiting list before those who have already been waiting for more than 18 weeks (SI 2015/1430).

My Lords, this is another fascinating measure that the noble Lord has brought before the Committee, for which we are all very grateful. I do not want to extend the time of Grand Committee. I am having this debate not so much because I oppose the regulations, but because I want to understand the thinking. Clearly, these targets are important.

Obviously, I have read the Explanatory Memorandum, which makes it clear that the reason for removing the two referral to treatment waiting time standards related to the completed pathways of patients who started treatment is to focus solely on the standard for the incomplete pathways of patients waiting to start treatment. This is because of the confusion of the previous set of standards that had the potential to give rise to perverse incentives. I understand that. But I wondered whether the Minister could tell me what evidence he, Bruce Keogh or Simon Stevens had for how these perverse incentives were being used. Rather than introducing new standards, this is consolidating existing standards, but does the Minister think that there is a risk of new perverse incentives being introduced as a result of the regulations?

The regulations also relate to NHS-funded nursing care, which, given the vulnerability of the care sector as a whole, is of some considerable interest. Is the Minister satisfied that the current eligibility criteria for NHS-funded nursing care are being observed properly by the NHS and not being reinterpreted? The obvious temptation for the NHS is to ensure that little NHS-funded nursing care is funded because it can then transfer to means-tested social care. Given current budgetary pressures, I would have thought that that is an ever-present temptation for the NHS. Is the Minister able to provide information about NHS-funded nursing care and the extent to which there is consistency throughout the country in terms of ensuring that the eligibility criteria are observed? I beg to move.

My Lords, this is the first time I have had the opportunity to say something in Grand Committee, so I hope that I will be forgiven if I trespass on any of the procedures. I was tempted to speak, not least by the noble Lord’s reference in his Motion to the potential perverse incentives surrounding the referral to treatment time targets.

We do not need to speculate on where there might be perverse incentives in the system of targets and the impact they can have on how the NHS manages such targets, as we can see them. We saw them under the previous Labour Government. They had two referral to treatment time targets relating to admitted and non-admitted patients for complete pathways. The net result, of course, was a perverse incentive not to treat patients once they had passed beyond the 18-week point. It was precisely for that reason, after the 2010 election, that my colleagues and I in the Department of Health thought it was necessary to have a third target. For example, we were presented with 18,000-plus patients who at the time of the May 2010 election had waited for their treatment beyond 52 weeks.

There was a perverse incentive. It was very straightforward: if they were brought in in any significant numbers, and they and others like them had gone well beyond the 18 weeks into treatment, they would not be counted for the then 90% or 95% target—particularly the admitted patients on the 90% target. They were simply ignored. That was not acceptable. It was not what the targets were intended to do and it was not for the benefit of patients. So we introduced the incomplete pathway which had a salutary effect. It brought the numbers waiting beyond 52 weeks from more than 18,000 down to the low hundreds. It is still only about 800 patients who have waited. We introduced zero tolerance subsequently, once we had brought the numbers down for beyond a 52-week wait. We do not need to speculate about perverse incentives; they were there.

I can understand where Sir Bruce Keogh has seen that the combination of these targets can create a degree of confusion. The success of having introduced the incomplete pathway standard is something that we can build on. That is what Sir Bruce and NHS England are aiming to do—a simple standard that no less than 92% should be treated within 18 weeks. That reinforces the 18-week standard and it is very clear in the minds of patients.

Of course, there is scope for perverse incentives; there always is. In this instance, we know that by failing to distinguish, as the previous targets have done, between admitted and non-admitted patients—non-admitted patients having been less costly and complex to treat—there is a perverse incentive to concentrate on the non-admitted patients relative to the admitted patients. It is fair to say that if we see that emerging, we would have to respond in terms of the structure of the targets. To introduce something that dealt with the transparent detriment to patients of waiting beyond 18 weeks and then simply being dropped from the system and ignored was the right thing to do. When the noble Lord talks about perverse incentives, we have dealt with what was the principal perverse incentive. It is perfectly reasonable for NHS England and for the Government now to focus on one standard to make life more straightforward for those who have the responsibility of managing an increasing workload in hospitals.

My Lords, once again I thank the noble Lord, Lord Hunt of Kings Heath, for bringing this to the Committee. My noble friend Lord Lansley has pretty much done my job for me, but I think I had better go through with this to put it on the record. I thank my noble friend for that articulate and eloquent exposition of why we now have one incomplete standard and not the three that we had before.

We all accept that waiting times are critical. I should pay tribute to the Government of which the noble Lord was once a member. Bringing down waiting times was a huge success and there is no doubt that targets were one of the instruments used to do so. However, the noble Lord accepts that they are a blunt instrument and can lead to distorting clinical priorities. They can lead to gaming and extra cost, so they are not the whole answer. In particular, they can lead to perverse consequences. That is why the Secretary of State for Health and Simon Stevens accepted the recommendations made by Bruce Keogh earlier in the year. I will place a copy of his letter to the Secretary of State and Simon Stevens in the Library. The noble Lord may already have seen the letter but I will place it there.

Sir Bruce’s clinical advice on the standards used to measure the 18 weeks NHS constitution right was to remove the two standards that looked at how long people who have started treatment waited and to focus on the incomplete pathway standard—that is, the people who are still waiting. Perhaps I can explain that by using the analogy of a bus. The two earlier standards measured the people on the bus and the incomplete standard is designed to measure those who are left behind at the bus stop. As all three standards were written into the standing rules regulations, this statutory instrument, which took effect from 1 October, was required to make that change.

The change affects the metrics by which we measure the NHS’s performance on waiting times. It does not change the patient’s right. It is important that that is on the record. Patients can still expect to start treatment within a maximum of 18 weeks if they want to and it is clinically appropriate. If this is not possible, patients have the right to ask to be referred to an alternative provider that can see them more quickly, and the NHS must take all reasonable steps to meet patients’ requests. Sir Bruce Keogh recommended this change because having a set of three standards could be confusing and give rise to perverse incentives.

My noble friend described those perverse incentives. The perverse incentive was such that you could treat only one patient who had waited for more than 18 weeks as opposed to nine who had waited for less. There is no doubt that hospitals were managing their waiting lists on that basis. As a consequence, there were people waiting beyond 18 weeks for far too long. That was the wrong that the incomplete standard tried to address. As Sir Bruce said in June, while hospitals may be the ones penalised directly when they breached waiting time standards, the true penalty was laid on the patient who was waiting for much longer than he should have done. I wholly agree that that was not right.

In 2012—I think my noble friend was Secretary of State at the time—the Government introduced the incomplete pathway standard that a minimum of 92% of patients yet to start their treatment should have been waiting less than 18 weeks, to give NHS organisations a reason to prioritise patients who had been waiting a long time. The removal of the two completed pathway standards further minimises the potential for management of the waiting list to cut across clinical decision-making. Clinical priority should always be the main determinant of when patients should be treated. This clinical priority should not have been distorted because it should have been possible to meet all the clinical priorities and meet the waiting time standard, but in practice that was not always the case. Clinicians should make decisions about patients’ treatment and patients should not experience undue delay at any stage of their referral, diagnosis or treatment.

These changes will mean that there is a simplified, clearer focus on only one standard, covering all patients on the waiting list, and ensuring that those who have been waiting a long time are not left languishing. The noble Lord raised the issue, which was addressed by my noble friend, of whether having just the one standard will result in new and different perverse incentives. My noble friend made the important point that it could lead to priorities being skewed in favour of non-admitted, simpler, cases rather than admitted, more complex, cases. That is something we need to keep a very close eye on. NHS England will continue to measure trusts’ performance against all the standards except that there will be only the one measure in the contract.

I stress that changing the standards is not moving the goalposts in response to poor performance. This change has been made on the basis of clinical advice and in the best interests of patients, and has received widespread support, for example from the Nuffield Trust and the Patients Association. More than a million NHS patients start treatment with a consultant each month and the overwhelming majority are seen and treated within 18 weeks. However, the NHS is busier than ever, which is why we are investing the extra £8 billion that NHS leaders have asked for to support the five-year forward view. I hope that the noble Lord will accept that this was done in good faith and in the interests of patients and that it was a decision informed by clinicians, not by politicians. I have not addressed the concerns he raised about the eligibility criteria for nursing, because they are not strictly relevant to these regulations, but perhaps I could write to him on that matter.

My Lords, I am very grateful for that. I must say that the intervention from the noble Lord, Lord Lansley, was very helpful. It reminded me that in 2001 I was resplendent in the title of Minister for targets in the Department of Health. I remember asking officials to count up how many targets we had set. When we reached 450, we decided we ought to start again, first by trying to refine the targets and then by setting up foundation trusts, in order to take them out of a directly managed form of control from the centre. Whether that has been entirely successful, in light of today’s circumstances, is up for some debate, though I still maintain that the concept of foundation trusts, with separate governance and local accountability, is the right way forward. I hope that NHS Improvement will see the benefit of trying to protect foundation trusts, and the good bits of their governance—the role of governors, the accountability of the board to local people—from overmanagement from the centre. I know that the noble Lord also chaired a foundation trust; he will know what I mean.

There is no doubt whatever about the targets. The waiting time in 1997 was more than 18 months. It was brought down to 18 weeks, which was driven by a target that people had to meet. That is always justifiable. However, we know that in both the public and private sectors, people who have to meet targets are very clever and sometimes the temptation for perverse behaviour is all too apparent. I hope that we can continue to rely on NHS England to monitor behaviour closely and that if it needs to adjust targets to meet any perversity, it is important that that is done quickly and responds to problems that arise.

I do not oppose these regulations at all; I think it is a sensible approach. However, it would be helpful if we saw that NHS England was fleet of foot in responding very quickly when new problems arise with targets, as inevitably they will. This is a good example of that.

Motion agreed.