Labour questions legal basis for abandoning NHS treatment targets – Ashworth

Labour have today questioned the basis for
the downgrade of NHS treatment targets announced this week, saying the changes
could contravene patients’ legal rights under the NHS Constitution.

Speaking on Sky’s Sophy Ridge Show this
morning, Labour’s Shadow Health Secretary Jonathan Ashworth said he would write
to Health Secretary Jeremy Hunt seeking urgent clarification of the legal
advice underpinning the move.

Jonathan Ashworth MP, Labour’s Shadow Health
Secretary, said:

“The NHS Constitution isn’t just a pledge
by politicians, it’s a legal guarantee about the standards of care that
patients can expect to receive in the English NHS. That includes a guarantee to
treatment within 18 weeks, which NHS England have now said they can no longer
provide because the Government has denied them the funding they need. 

“Government ministers need to urgently
clarify they are not breaching the NHS Constitution and must outline the
consequences of denying patients their legal right to treatment within 18
weeks. As a first step the Secretary of State must publish his Department’s
legal advice urgently. 

“Earlier this week NHS chiefs announced –
without any public consultation or changes to the law – that the NHS will no
longer be required to meet the 18 week treatment target because the financial
crisis has got so bad. It’s utterly unacceptable and a striking admission of
how badly the Tories are running the NHS.

“Since Theresa May became Prime Minister standards of care for NHS
patients have been in a rapid downward spiral. She might be prepared to ignore
NHS staff and the public but she can’t just ignore the NHS constitution
based on legislation voted upon by Parliament.

“The Government now urgently needs to
clarify the legal basis upon which the 18 week right has been jettisoned. Will
they be amending the NHS Constitution to remove these rights from patients?
Will they be tabling new legislation in Parliament to unpick these commitments?
Or will they will finally give the health service the funding it so desperately
needs to deliver the quality of care to which patients are entitled?”

Ends

 

Note To Editors

Full text of the letter to Jeremy Hunt from Jonathan Ashworth:

Dear Secretary of State,

I am writing to ask for urgent
clarification about the legal basis of the changes to NHS standards announced
in the update to NHS England’s Five Year Forward View.

Every relevant provider is under a legal
duty imposed by part 9 of the  National Health Service Commissioning
Board and Clinical Commissioning Groups (Responsibilities and Standing Rules)
Regulations 2012 to see 92% of patients  within 18 weeks of referral by a
GP to a consultant . For the last 10 months on the basis of figures provided by
the NHS itself this standard has been missed.  The update indicates that
the NHS accept this standard will further decline. 

The update document says:  

“Given multiple calls on the
constrained NHS funding growth over the next couple of years, elective volumes
are likely to expand at a slower rate than implied by a 92% RTT incomplete
pathway target.”

This is an acceptance the 92% requirement
 will be missed.

The duty to meet the 92% is absolute and
is not subject to any funding constraints.

The absolute nature of this legal duty to
meet the 92%  is reflected in the NHS constitution.

The Government and NHS England are acting
unlawfully in continuing on a course which puts them in breach of their
legal duty.  The only way to avoid a breach for the future is to change
the duty in part 9 by further legislation.  That would require the Government
to obtain parliamentary approval.

In the absence of any proposal for such
legislation, The action described in the update document last Friday is
unlawful. Could you  publish your Department’s legal advice on
whether you are breaching part 9 in what is described in the update. 

Will you in any event as a matter of
urgency explain the basis on which you say you are entitled to ignore the legal
duty in part 9?

Secondly and separately the reference to
rationing of NICE approved drugs is a breach of the legal entitlement of
patients pursuant to  para 7 and 8 of the National Institute for
Health and Care Excellence (Constitution and Functions) and the Health and Social
Care Information Centre (Functions) Regulations 2013 ).

The effect of these paragraphs is
correctly summarised in the NHS Constitution as:

"You have the right to drugs and
treatments that have been recommended by NICE for use in the NHS, if your doctor
says they are clinically appropriate for you.”

That entitlement is not subject to
financial constraints.  Rationing would be a breach of the entitlement.

Could you publish as a matter of urgency
the legal advice you have received on whether rationing of NICE approved drugs
is lawful in the light of the 2013 regulations, and in any event explain the
basis on which you say rationing of NICE approved drugs on cost grounds is not
unlawful?

NHS England made clear that the reason for
downgrading these guarantees is because of “real pressure from rising demand
within a tight funding envelope.” The funding squeeze you have imposed on the
health service is now jeopardizing legally guaranteed standards of patient
care.

Since Theresa May became Prime Minister
standards for NHS patients have rapidly fallen. She might be prepared to ignore
NHS staff and the public but she can’t just ignore the law and the NHS
constitution.  

The public urgently need to know: will you
be bringing forward legislation to amend the law and the NHS Constitution to
remove these rights from patients? Or will you finally convince the Treasury to
give the health service the funding it so desperately needs to deliver the
quality of care to which patients are entitled?

Jonathan Ashworth MP

Shadow Secretary of State for Health