A recent report, “Winter Warning: managing risk in health and care this winter – update“, published by NHS Providers (the membership organisation and trade association for the NHS acute, ambulance, community and mental health services that treat patients and service users in the NHS), makes worrying reading.
The report recommends an immediate emergency cash injection of between £200m and £350m to alleviate the growing risk that NHS trusts will not be able to deliver safe acute services this coming winter. It notes:
“Last winter was widely regarded to be the most challenging winter in recent times, yet the NHS is currently on a trajectory towards, at best similar, but more likely worse, performance this coming winter, with heightened patient safety risks”.
NHS providers of all types face various pressures as a result of winter weather and other challenges associated with the season, such as the heightened risk of flu and norovirus.
One of the areas most affected in winter is emergency care. As the report makes clear, over the last three years there has been “an inexorable increase in demand for emergency care in terms of volume and acuity. For example, in total, A&E departments in 2016/17 saw attendances increase by 3% with 3% more patients admitted to hospital”. Similar increases in demand for A&E services are expected this winter.
In general, A&E performance tends to be worse in winter. A study by the King’s Fund concludes that this is the case even though the total number of A&E attendances is lower in winter. The factors driving this trend appear to be the increase in the proportion of older people with complex health needs who present seeking treatment, leading to an increase in the proportion of people who need to be admitted to a hospital bed.
The legal dimension
Is there a legal dimension to the issue of winter-related pressures on emergency care? The answer is “yes” but it is indirect.
The Secretary of State’s Handbook to the NHS Constitution makes a commitment to achieving a maximum 4-hour wait in A&E from arrival to admission, transfer or discharge even thoughmany NHS provider trusts breach the 4-hour commitment at the moment and are struggling to both finance and recruit staff to improve the flow of patients through A&E. As a matter of public law, NHS trusts providing A&E services must “have regard” to the NHS Constitution under section 2 of the Health Act 2009. As discussed in The Guide to the Law of the NHS, whilst this is a target duty, NHS Trusts have to aim at the target. Not hitting the target is not a breach of the duty under section 2 but not having realistic plans which aim to do so would be. Even though the 4-hour target is only contained within the Handbook to the Constitution as a “pledge”, it is still something NHS Trusts have to aim to achieve.
More concerning for trusts on a practical level is the mechanism under the NHS Standard Contract providing for a monthly sanction on providers at the rate of £120 per service user who was not admitted, transferred or discharged within 4 hours of their arrival at an A&E department. The requirement, however, is that 95% of patients are admitted, transferred or discharged within this 4-hour window. It is only when trusts fall below this threshold that the sanctions may apply. However, the total sanction is capped so that there are no additional consequences for breaches below a threshold of 85% (which might lead to a perverse incentive for poor performers since there is no financial benefit in improving performance from 75% to 85%).
There are further perverse incentives under the 2017/18 Standard Contract, because a temporary measure has suspended financial sanctions covering 4-hour A&E waits in particular circumstances where the provider has been granted Sustainability and Transformation funding and has made certain commitments to NHS Improvement and NHS England.
What this means from a legal perspective is that to not meet the A&E 4-hour target may have contractual consequences for a provider, but is not necessarily a public law wrong. This is in contrast, for example, to the target to treat 92% of patients within 18 weeks from referral. This standard is similarly contained in the NHS Standard Contract, but it also has the force of law under Part 9 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012/2996. A provider not meeting this standard would be breaching their contract and their public law duties.
The outlook for providers?
The challenges of winter make the 4-hour target particularly difficult to meet. The performance of A&E departments is inextricably linked to the capacity and performance of other hospital departments. Patients attending A&E in winter with more complex needs may put greater pressure on diagnostic departments. There are difficulties presented by discharging older patients from hospital depending on their social care needs. Similarly, in hospitals with already high bed-occupancy rates, this increased demand for emergency services, and subsequent admittance into hospital beds, can present a real dilemma: where do these patients go?
All of these issues, and many others, mean that trusts will be more likely to slip even further behind in complying with the 4-hour target this winter. In order to act lawfully, NHS trusts need to continue to aim to comply with the 4 hour target. Falling short is not unlawful, but aiming to fall short may well be unlawful. NHS trusts should therefore be particularly careful how they describe their focus in complying with the 4-hour target in any publicly accessible documents.