Rights, but not as we know them

The Scottish Parliament has been accused on occasion of believing that the nation's problems can be cured just by passing an Act about them, and of justifying its existence by making laws that aren't really necessary. So it is quite refreshing to read the Health and Sport Committee's stage 1 report on the Patient Rights (Scotland) Bill.

The main purpose of the bill, on the face of it uncontroversial, is to clarify and support the existing rights of patients within the Scottish health service. It does this by purporting to set out the rights of patients receiving health care from the NHS in Scotland, introducing a guarantee for eligible patients to start to receive medical treatment within 12 weeks of treatment being agreed, and setting up a new patient advice and support service to deal with complaints and feedback.

Nor was there any issue with the Scottish Government's commitment to promoting the rights of patients and fostering a patient-centred culture within NHS Scotland. Or, indeed, I have to say, with its desire to avoid creating a "charter for lawyers" and a rising level of compensation claims and litigation against the NHS. But therein lies the first of the problems the committee had with recommending that the bill go ahead.

As the committee noted, "there is an inherent contradiction between, on the one hand, setting out patient rights in primary legislation giving the impression of enforceable rights and, on the other, making express provision in the bill to limit the legal enforceability of these rights". In addition there is the risk that the bill may raise unrealistic expectations amongst patients.

Another difficulty was the fact that the bill only set out a limited set of rights and risked providing a misleading and incomplete picture to patients. The Law Society of Scotland listed 17 specific rights it thought existed but were not stated; the General Medical Council highlighted "the fundamental existing legal right of patients to refuse treatment" as being nowhere stated.

And, of course, there is the question whether we should be setting up another quango-type organisation just as existing bodies are under close scrutiny to justify their survival in these times of austerity.

It should be noted that the committee was not unanimous. It is not stated in the report, but it would not be at all surprising if there was a division on party lines with SNP members supporting the Health Secretary who has charge of the bill, against the majority of the committee who were not persuaded that primary legislation is the most appropriate means of promoting patient rights.

An alternative approach, the report states, would be a revised and comprehensive patient rights charter, enforceable by the Cabinet Secretary using existing powers in the NHS legislation.

However the extensive summary of the evidence provided in the report is in itself interesting reading and shows the spectrum of points of view on these issues that was put to the committee. I admit I have sometimes wondered if these stage 1 reports mean a great deal, concluding as they usually do with the committee in charge agreeing the general principles of a bill that it has just found all manner of faults with, but this one at least asks all the right questions.