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You are in: Home Page | Personal Injury | Medical Negligence Claims | Clinical Negligence Articles and Clinical Negligence Factsheets | NHS Waiting lists: targets and England & Wales comparison


April 2007

Clinical Negligence Articles

NHS Waiting lists: targets and England & Wales comparison

Introduction
Waiting list initiatives
Patients taking the initiative: the case of Yvonne Watts

Introduction

Waiting times continue to be a hot topic. Statistics abound but to understand what is going on you really need to be a statistician, particularly if you want to compare the situation in England and Wales.

In England the current target is that patients should not wait more than 6 months from GP referral to treatment (that includes the first outpatient appointment and diagnostic tests). The English improvement plan sets out the ambitious aim that, by 2008, no one should wait more than 18 weeks from GP referral to hospital treatment.

In Wales the current target is 8 months/36 weeks from GP referral to inpatient, day case or first outpatient appointment. However this is not necessarily the time to treatment as at the outpatient appointment you enter another waiting list and so under the welsh target can wait 16 months from GP referral to treatment. In Wales the improvement target is that by the end of 2009 no one will wait more than 26 weeks (6 months) from GP referral to treatment including diagnostic tests.

These bare targets are an oversimplification in that there are also some specific targets for particular problems. So for example in Wales there is a current target for Cataract surgery of 4 months and there is a Cancer Plan for English NHS Trusts aiming to have by 2008 a maximum wait of 1 month from urgent referral for suspected cancer to starting treatment.

The good news is that NHS statistics suggest the significant improvements are being experienced in that the number of patients waiting more than the target times is going down.

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Waiting list initiatives

In England and Wales there have been a number of initiatives engaged to tackle the number of patients exceeding target times including:-
• Private public partnerships (PPPs) where NHS patients find they are offered surgery in a private hospital
• Engaging foreign surgeons to undertake for example cataract or orthopaedic procedures
• Previously there had been another waiting list initiative, the “NHS Overseas Commissioning Scheme” which had enabled local NHS Trusts to identify suitable NHS Patients will to go abroad for treatment but the scheme was withdrawn.

PPPs - In most cases, surgery is successful and the benefits to patients are clear. However at Thompsons, we do have concerns about the experiences related by some of our clients being treated under PPPs where their surgery went wrong. For example there have been difficulties with their claiming compensation because the issue of who is liable appears not to have been fully thought through.

Case in point

One of our clients, from Gwent in Wales, was pleased when his local NHS Trust offered to get his hip replacement undertaken at a nearby private hospital quickly. Unfortunately, his operation did not go to plan. He made a claim under the Welsh Speedy Resolution Scheme (fast track claims resolution scheme relevant to cases where compensation likely to fall into the bracket £5,000 to £15,000). Initially the Trust accepted the claim into the Scheme.

However a couple of months into the claim the solicitors for the Trust stated they were investigating the involvement of Medinet (UK) Limited in the matter, because the client’s surgery was undertaken at a private hospital.

Subsequently the solicitors informed the client that in their agreement with Medinet, the Trust was entitled to an indemnity and so that we had to direct any claim to the private hospital (which in fact required the claimant to make claims against the two consultants who were involved in providing him with care).

The case couldn’t be dealt with under the Speedy Resolution Scheme and this had serious financial consequences for the claimant. He complained to Dr Gibbons, the Health Minister for the Welsh Assembly. Dr Gibbon’s office replied eventually stating amongst other things that the duty of care of the NHS Trust only stretched as far as acting appropriately in choosing Medinet to carry out Waiting List Initiative Functions and the only potential defendants who owed a relevant duty of care to the client were the (private) treating consultants (not under the control of the NHS Trust).

Therefore whilst the use of PPPs has contributed to the task of improving waiting lists statistics, in the scenario we dealt with, our client was left at a clear a disadvantage when his operation did not go to plan. We would welcome any developments by the NHS to ensure that the issue of who is liable is resolved.

The use of foreign surgeons - This has received much publicity. At Thompsons we have acted for clients who have been provided with an unacceptable standard of care under these schemes a number of which have seen higher than usual complication rates.

In England as part of the Patient Choice programme all patients who need planned surgery are supposed to be offered a choice of 4 or 5 hospitals or providers when they are referred by their GP.

In Wales there is a 2nd Offer Scheme in which anyone who is already waiting or is likely to wait over the maximum target waiting time (inpatient or day-case) is given the opportunity of having their consultant led treatment at another hospital, inside or outside Wales. Under this scheme more than 600 South Wales NHS patients were sent to Weston NHS Treatment Centre for orthopaedic surgery where a number of them were operated upon by foreign surgeons. Following reports of clinical complications involving some of these patients who had undergone knee replacement surgery an independent review was commissioned. The report’s findings suggested a higher than expected complication rate. This caused the Welsh Trusts responsible to have to contact all of the patients in question inviting them to have an appointment with a Consultant Orthopaedic Surgeon in Wales so that they can discuss their surgery and concerns.

Case in point

An elderly client of ours underwent cataract surgery to his left eye at a West Country Hospital. By this time our client had cataracts in both eyes although he still had useful vision in his left eye. He had been told the waiting list for surgery was at least 6 months and so he was surprised when he was in fact offered a date for surgery quite quickly under a hospital waiting list initiative.

The cataract surgery was undertaken by a visiting French surgeon. Unfortunately the complication rate for the surgeon was subsequent stated by the NHS Trust in question to be “higher than expected”. Of the 68 patients operated on, 4 had severe complications and unfortunately our client was one of these. Another 12 patients required further treatment and follow-up.

In our client’s case it was later stated there had been “considerable technical problems during … surgery”. His local NHS consultant subsequently attempted to rectify the position but the complications left our client with little useful vision in his left eye. Further because of these complications he declined cataract surgery to his right eye with the result he could no longer drive and became dependant upon his family.

In response to a claim for compensation the NHS Trust formally admitted that the cataract surgery had not met the expected standard. They apologised for the distress and discomfort caused and the claim was settled.

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Patients taking the initiative: the case of Yvonne Watts

On 16th May 2006 the European court ruled that the UK health authorities had to pay the bill if one of their patients could establish urgent medical reasons for seeking quicker treatment in another European union country.

Unusually Mrs Watt was a patient who knew about the “health Tourist” E112 scheme. The E112 Scheme is there to implement a patients right under European Law to go to another member state to receive treatment if they cannot get treatment at home within the time normally necessary.

Mrs Watts was unhappy about the time she was going to have to wait for hip replacement surgery in this country and so she asked Bedford Primary Care Trust to support her application for treatment in France under the E112 scheme. The PCT refused on the basis her clinical condition was routine and the treatment was available in the UK without undue delay. She applied unsuccessfully for Judicial Review of this refusal but was put on the shorter 4 month waiting list. In the meantime she went to Abbeville, France, in 2003 had the surgery and then sought reimbursement of the costs from the Secretary of State for Health.

The European Court found that patients were entitled to be treated within a time which was “acceptable in the light of an objective medical assessment of the clinical needs”; i.e. what is an acceptable time scale was to be judge clinically by doctors rather than target waiting times and administrators.

The case of Mrs Watts has now gone back to the Court of Appeal who will decide whether she was being subjected to undue delay in getting NHS Treatment in which case she should be reimbursed at least the costs of her surgery (£3,900).

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This article was written by Cathryn Davies, a partner in our national Clinical Negligence team.

For more information about waiting times or on any clinical negligence issue please email thompsonsclinicalnegligence@thompsons.law.co.uk