Hunt broke law by axing NHS 18-week treatment target, says Labour

Jeremy Hunt has broken the law by not forcing the NHS to ensure that patients receive hospital treatment within the stated maximum of 18 weeks, according to legal advice obtained by Labour.

The counsel’s opinion says the health secretary is acting illegally by not obliging NHS England to compel hospitals to treat the required 92% of patients within 18 weeks of being referred by their GP.

The advice, by James Goudie QC, is potentially embarrassing for Hunt as it draws attention to the NHS’s increasingly poor performance against key waiting time targets for A&E care, cancer treatment and ambulances’ responses to 999 calls, as well as the referral to treatment (RTT) requirement. It specifies that at least 92% of all those waiting for non-urgent hospital treatment, such as hip or knee replacement or cataract removals, should wait no more than 18 weeks.

Controversy erupted last month when Simon Stevens, NHS England’s chief executive, announced that he was relaxing the 18-week target so that under-pressure hospitals could focus on more important priorities, in a move critics said meant it was being scrapped. The Royal College of Surgeons accused the NHS of “waving the white flag” on the target and condemning patients already in pain to further suffering due to the extended delays they would now face to get surgery.

Labour peers commissioned the 12-page opinion from Goudie, a barrister specialising in public law and employment law at 11 King’s Bench Walk chambers in London. It says: “I am asked whether the SoS [secretary of state] acted unlawfully by failing to include the 92% RTT target in the mandate to NHS England for 2017-18. My answer is: ‘Yes’.”

It goes on to explain: “This is because the 2012 Regulations and the NHS constitution have the effect that this must be included. The annual mandate cannot lawfully be used to circumvent or undermine by omission the absolute statutory and sub-statutory requirements.”

The mandate is the detailed annual document in which the Department of Health spells out precisely what key priorities it wants NHS England to fulfil in the coming year.

Labour claimed Goudie’s advice showed the government’s NHS plans were “in total chaos”. The party planned to use a motion in the House of Lords on Thursday to try to force ministers to explain what it says is a fundamental breach of patients’ rights under the NHS constitution. Philip Hunt [no relation], Labour’s health spokesman in the Lords, will also challenge ministers to publish the legal advice they have taken surrounding the 18-week target.

“Tory plans for the NHS are in total chaos. Legal advice commissioned by Labour confirms that the government have acted unlawfully in failing to deliver the 18-week treatment target for patients,” said Jonathan Ashworth, the shadow health secretary.

“Almost 4 million people are now on waiting lists because of the neglect and underfunding of this Conservative government and now this year’s NHS mandate is at risk of legal challenge. The government are failing to deliver the standards of care to which NHS patients are legally entitled,” he added.

Labour is now considering what its next move should be in light of Goudie’s advice, including whether it should seek a judicial review to challenge the legality of Jeremy Hunt’s actions over the 18-week target. No decision has yet been made on possible legal avenues it may pursue.

But Hunt last night insisted that he had done nothing wrong and that he had ordered NHS England to start hitting the 92% target again, which hospitals have missed every month since March last year at a time when the total number of patients awaiting treatment has crept up to almost 4 million.

“We do not believe there is a case to answer,” a Conservative spokesman said.

“Indeed, we wholeheartedly reject any suggestion that the government is not committed to the 18-week target, and as the mandate itself clearly states, we are specifically requiring the NHS to return to delivering that standard,” he added. The NHS is now carrying out record numbers of operations and treating 5,000 more people a day than in 2010, the spokesman added.

Hospitals breached the 92% target for the first time in December 2015 since its introduction in 2010. After meeting it again in the next two months, performance slipped to 91.5% last March and has stayed below 92% since. It hit an all-time low of 89.7% last December. In February, a total of 367,094 patients waiting for treatment had already waited for more than 18 weeks, according to the most recent NHS data.

Tim Gardner, a senior policy fellow at the Health Foundation thinktank, said: “The failure of the NHS to treat patients within the 18-week target is a symptom of wider pressures on the system. NHS hospitals are running at or near capacity to cope with growing demand for emergency care, and this limits their ability to perform planned procedures. If funding pressures continue to increase, the NHS will increasingly be forced to make trade-offs to live within its means.

“The government must ensure there are adequate levels of investment to maintain good standards of care in every part of the health and care system.”

Hunt broke law by axing NHS 18-week treatment target, says Labour

Why axeing 18-week surgery target won"t create more capacity in A&E

Press coverage of the recent Next steps on the NHS Five Year Forward View [pdf] concentrated heavily on the argument that a lower 18-week elective surgery target in 2017/18 will make it easier to recover performance against the four-hour accident and emergency target. But false linkages between the two targets are hiding the real risk for the NHS.

While the lower elective surgery target is a welcome, but painful, acceptance of reality, the linkage between the two targets is neither direct nor strong. And overemphasising that linkage underplays the serious risks the NHS faces next winter.

NHS performance between December 2016 and March 2017 showed the service is running a higher risk in the provision of urgent care than at any point over the past decade.

The 95% four-hour A&E target isn’t a particularly good measure of that risk – the Royal College of Emergency Medicine argues that 75% performance against the four-hour standard is the “magic mark for safety … when it becomes very overcrowded and … unsafe”. Better measures of patient safety risk are the levels of hospital bed occupancy, ambulance handover delays and the number and frequency of long hospital trolley waits.

All of these took a significant turn for the worse last winter. A third of hospitals had bed occupancy rates of 100% on at least one day. Many reported trying to manage bed occupancy levels well over the recommended 85%-90% level for weeks on end. This required continual, difficult, “one in, one out” admission/discharge decisions that usually led to worse care for the patients concerned. Ambulance diversions – hospitals turning away ambulances because they were full – were up 85% compared with the previous year.

While the NHS as a whole just about coped with record levels of demand, a number of local systems were overwhelmed for periods of time, putting patients at unacceptable risk.

Hospital and ambulance trust leaders are now concerned about their ability to manage this growing risk and that the number of systems in danger of failing over next winter is rising. Their colleagues in community and mental health report similar pressures, risks and concerns though, frustratingly, we either don’t have the public data to show this or the data is too new to be robust.

Aiming for a lower 18-week elective surgery target will, in many instances, make little difference, for three reasons.

First, many hospitals are now undertaking such relatively low levels of elective activity that they are, in the words of a recent Health Foundation Report, “becoming more of an emergency service” (pdf). Relaxing elective surgery performance targets won’t help them much.

Second, most hospitals have already scaled back their elective work over the crucial winter period. Indeed, they were formally instructed to do so by NHS Improvement. Relaxing the elective surgery target won’t create much extra winter capacity as it has already largely been freed up anyway.

Third, urgent and emergency care performance is not just about hospitals. While concentrating more hospital capacity on emergency, as opposed to elective, care may help a little, it does nothing to address the problem of capacity constraints in primary and social care, and the ambulance, community and mental health sectors.

The NHS can no longer do everything. Trying to hit the elective surgery target would have required the service to abandon proposed increases in cancer, mental health and primary care funding. But relaxing the target does have unwelcome side effects. As the £300m deterioration in last year’s trust finances in the third quarter showed, reducing elective surgery seriously hits trust financial performance just when we are trying to recover it. Delaying surgery also risks turning some cases into emergencies, adding to the urgent care burden.

Good urgent care largely depends on supply and demand across a local geography. The NHS struggles with winter pressures because we don’t have enough capacity. If we want to manage growing risk, we have to increase capacity to match growing demand.

We need to boost capacity in primary care, where the number of GPs is falling, not rising. We need to increase capacity in out-of-hospital care, not reduce the number of out-of-hospital beds by 8% as happened between winter 2016 and winter 2017. We need to grow capacity in social care, not cut the number of care packages available, to reduce delayed transfers and enable hospitals to properly manage their patient flow. And we need to increase temporary capacity in both acute hospitals and ambulance services too, if that’s what’s needed. It’s important to note that we added eight extra hospitals’ worth of temporary acute bed capacity last winter and still struggled.

What we shouldn’t do is kid ourselves that relaxing the 92% 18-week elective surgery target is any real substitute for that extra urgent and emergency care capacity. It isn’t.

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Why axeing 18-week surgery target won"t create more capacity in A&E

NHS accused of waving white flag as it axes 18-week operation target

Patients will face longer delays for operations after the NHS decided to shelve one of its most important waiting time targets as part of its ambitious survival plan, which will also result in hundreds of thousands of people being denied surgery.

Simon Stevens, NHS England’s chief executive, has announced that the NHS is significantly relaxing the requirement on hospitals to treat, within 18 weeks, 92% of all patients in England who are waiting for a hip or knee replacement, cataract removal, hernia repair or other non-urgent operation.

The Royal College of Surgeons of England (RCSE) immediately accused the NHS of “waving the white flag on the 18-week target”.

A clampdown on surgery deemed of “limited clinical value” will affect people with certain spinal conditions, for example. Overall, a greater number of people with back pain will be treated with physiotherapy rather than surgery.

Stevens said rolling back the 10-year-old 92% target was necessary so that hospitals could concentrate on more urgent priorities, particularly in terms of easing the strain on overloaded A&E departments, as well as enhancing access to GPs and improving the treatment of cancer – diagnosis will be speeded up to 28 days – and mental health care.

The RCSE said the move risked going back to the time when patients faced excessive delays for surgery, leaving them to suffer in pain for even longer before finally undergoing necessary procedures.

“We are concerned that the 18-week waiting times target for surgical treatment has now effectively been jettisoned in all but name, having been dropped from the list of priorities for the next 12 months,” it said.

Clare Marx, the RCSE president, said: “It will be difficult for the general public to understand how waving the white flag on this target is compatible with a vision of an improved health service. We risk returning to the days of unacceptably long waits for elective surgical treatment.”

The move could see the number of people waiting for surgery within 18 weeks under the referral to treatment system going above 4 million for the first time since September 2007. The political importance of the target is likely to prompt criticism of Jeremy Hunt, the health secretary.

Stevens said: “We are saying that we expect that the number of operations that the NHS pays for will continue to go up, but we recognise that [while] right now about nine out of 10 people get their operations in under 18 weeks, in some parts of the country that will be under pressure.

“There is a trade-off here. We expect there will be some marginal lengthening of waiting lists, but this will still represent a strong, quick waiting times experience compared to 10 years ago, let alone 20.”

Simon Stevens, chief executive of NHS England. Photograph: Jonathan Brady/PA

The British Medical Association claimed the NHS’s inability to meet all its waiting time targets showed that it was “at breaking point”. Its leader, Dr Mark Porter, said: “Achieving one delivery promise only by missing another is a textbook example of rationing access to care. It should not be happening in today’s NHS.”

Hunt insisted that the fact that hospitals were still giving around nine out of 10 patients elective care within 18 weeks, despite the huge demands being placed on them, was a sign of success, not failure. The NHS met the 92% target every month since its inception in April 2007 until December 2015, when performance was 91.8%.

However, medical bodies fear that watering down the 92% target will lead to a significant further jump in the number of patients forced to wait beyond the maximum 18 weeks guaranteed under the NHS constitution. Although the target is not being formally scrapped, in future NHS trusts will face no sanctions for failing to deliver on it.

Hospitals have already breached the target for the past 11 months and, in January, hospitals only achieved a 89.9% rate: 3.255 million people were treated on time but 364,218 were left waiting. Scores of hospitals across England had to declare large-scale alerts and convert gyms and other non-clinical areas into makeshift wards.

Chris Hopson, the chief executive of NHS providers, which represents most hospital trusts in England, welcomed Stevens’s move as proof of “greater realism” among NHS bosses. “But we do need to remember the impact on patients. The [NHS] plan reinforces a simple, stark truth: that you get what you pay for,” said Hopson.

NHS England’s 75-page delivery plan outlines how it intends to transform healthcare by 2020. The document makes repeated reference to how “modest” budget increases mean that it is unable to provide as much care or care within existing waiting times.

The plan makes clear that what critics call greater rationing of some types of care was imminent. GPs will be expected to refer fewer people to hospital and instead arrange treatment in the community. NHS England will expand the use of “referral management processes”, under which doctors assess whether patients need to go to hospital at all. More patients will be offered online advice.

Stevens announced that hospitals would be financially penalised if they did not screen patients who smoked or drank too much and refer them to tobacco or alcohol services, and said he was determined to reduce the wide variation in patients’ chances of being referred for certain surgery depending on where they lived in England.

Radical modernisation of how the NHS works is needed to ensure it survives as a service funded by general taxation that is free at the point of use, the document adds.

But Niall Dickson, the chief executive of the NHS Confederation, called the plan “a leap in the dark”, adding: “We have no alternative but to embark upon such fundamental change, but to do so when services are under enormous pressure and money is so tight is without precedent.”

NHS accused of waving white flag as it axes 18-week operation target