National Health Service (Mandate Requirements) Regulations 2017

Lord Hunt of Kings Heath Excerpts

Wednesday 6th September 2017 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

That this House regrets that the National Health Service (Mandate Requirements) Regulations 2017, and the associated Mandate to NHS England, do not require that in 2017–18 NHS England meets its obligation to ensure that 92 per cent of patients are treated within 18 weeks of referral; believes that failure to meet this target is a breach of the rights of patients outlined in the NHS Constitution and of the statutory requirement laid out in the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012; and calls on Her Majesty’s Government to publish the advice they have received on the legality of their actions (SI 2017/445).

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am moving this Motion because I believe that NHS England is failing to comply with its statutory requirement to ensure that a minimum of 92% of patients wait no more than 18 weeks for treatment from their day of referral. I believe that the Government are clearly complicit in that failure.

Governments often drop inconvenient targets when they are not being met but it is a little more unusual to see them airbrush one out of existence without any public acknowledgement, let alone report to Parliament, as has happened with the 18-week wait. This is one of the key targets for the NHS. It is important for patients to be treated promptly, and the target is also important as an overall barometer of the National Health Service, which is reeling from underfunding, rationing and a Government who are intent on wilfully letting standards slip.

Why have the Government allowed this to happen? Surely it rests with their lamentable failure to deliver on the key standards set out in the NHS constitution. We should look at their record. The current four-hour maximum A&E standard has been missed for the past three years, with performance deteriorating every year. The 62-day maximum treatment wait for cancer has been missed every year since 2013-14. As for elective care, the 18-week standard has not been met now for 16 months. Therefore, the Government are so lacking in confidence that they have just decided that they will drop one of the targets. This first came to light in March when, in unveiling his progress report on the five-year plan for the NHS, Simon Stevens, NHS chief executive, admitted that patients can expect to face,

“longer waits for operations such as knee and hip replacements in a ‘trade-off’ for improved care in other areas”.

The Government have been rather coy about this but the reality is that, behind closed doors, they agreed with Simon Stevens effectively to downgrade the 18-week standard. However, they forget to tell Parliament and the public that they had done so. Remarkably, there is no reference to that in the regulations we are debating tonight. The mandate for 2017-18 is equally silent on it. It is true that on page 19 of that mandate there is reference to the 18-week wait as a goal for 2020. But when you look at the list of deliverables for this financial year, it is completely missing. All we have, on page 20, is a vague reference asking NHS England to “meet agreed standards”. We should compare that with the 2016 mandate which says that NHS England is “required” to meet the 18-week referral for treatment standard.

Let us go back to the NHS England document of 31 March this year, Next Steps on the NHS Five Year Forward View. Chapter 7, on page 47, states that,

“over the next couple of years, elective volumes are likely to expand at a slower rate than implied by a 92% … incomplete pathway target”.

Those are wonderful words, which basically say that NHS England has dropped the 18-week target. Everyone in the NHS knows that to be the case. Not only is that letting NHS patients down, I believe that NHS England and the Government are in breach of their statutory responsibilities. The key standards are pledged in the NHS constitution and are backed up by legislation imposing a duty on NHS England to meet maximum waiting time standards. I refer noble Lords to Regulation 45 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, which is headed, “Duty to meet the maximum waiting times standards”.

In July 2015, the Government explicitly stated that the NHS constitution,

“reflects a series of fundamental standards, below which care must never fall”.

Part 3 of the handbook to the constitution states a number of rights, including the right to start consultant-led treatment within a maximum of 18 weeks from referral for non-urgent conditions. Therefore, it is my view that NHS England and the Government are required in statute to seek to achieve the objects that have been laid down, including the 18-week standard. The 2017 mandate that we are debating tonight does not include the 18-week target as a list of deliverables or requirements in 2017-18. The question to the Minister is why? I put it to him that the Government essentially agreed with NHS England to fail in its statutory duty to uphold the 92% referral for treatment target.

--- Later in debate ---

[Lord O'Shaughnessy]

That is the truth.

Next year the NHS turns 70. As my noble friend Lady Redfern said, it has a unique place in our society. The mandate to NHS England for 2017-18 goes further than ever before to ensure that we not only continue to deliver the best care and support for today’s NHS patients but also deliver the reform and renewal needed to sustain the NHS for the future. We know there is more to do, which is why we have put our commitment to support NHS England and the NHS in delivering the five-year forward view at the heart of the mandate. We will continue to do so. I hope that I have persuaded all noble Lords, including the noble Lord opposite, that their fears are unfounded, and that the noble Lord now feels in a position to withdraw his Motion.

[Lord Hunt of Kings Heath]

My Lords, that is one of the most remarkable speeches I have heard in your Lordships’ House. I have to say that if the Government really think that the NHS is in the healthy position that the Minister says it is, I feel very sorry for them and sorry for NHS patients. Talk to anyone on the front line and they will tell you of the pressures, of the hopelessness of the changes the Government made and of the Brexit impact on staff. The NHS is facing a critical time and to have this litany, this list of so-called achievements, does no good at all to the health service or to the credibility of the Government.

I shall make only two points. The Minister said at the beginning that the Government are still committed to the 18-week target, but towards the end of his speech he quoted the same words as I quoted, which made it clear, as Simon Stevens has made clear and as is made clear in Next Steps on the Five Year Forward View, that actually the Government have given up on the 18-week target this year. They have said that,

“elective volumes are likely to expand at a slower rate than implied”

by the 92% target. That was an open admission that the target is no longer set in stone. Talk to any chair or chief exec in the NHS and ask them whether the 18-week target is a firm target in this financial year and they will say no. Of course the NHS faces pressures. In the days of my noble friend Lord Reid the demographic changes were taking place just as fiercely as they are now, but he made a dramatic impact in reducing waiting times.

My point is this: if the Government believe it is so difficult to manage the health service in such a challenging time, they should be open and honest and say that the target has been taken away; but they have not been honest, they have not been open and patients will suffer. My Lords, I beg to move.