The Department of Health’s draft Mandate to the new NHS Commissioning Board was published last week, and it’s bad news for anybody hoping for a bit of common sense on the 18-week waiting times targets. All three targets are being retained: that’s one target telling hospitals to treat their long-waiting patients, and two targets punishing them if they do.

The good news is that this is a consultation draft, so you have until 26th September to tell the Department of Health why they should reconsider. As usual, with government consultations, you have to find a way to fit your comments into a pre-defined set of strangely-tangential questions, and in this case the one to use is question 3: “Are the objectives right?”.

I am sure that staff in many Trusts will be able to provide the Department with plenty of examples from their own experience of how the offending targets have distorted patient care, confused and misled stakeholders on the waiting times position, and resulted in unfair criticism and financial penalties, when all they are trying to do is the right thing for patients.

Here is the response I am submitting:

Question 3. Are the objectives right? Could they be simplified and/or reduced in number; are there objectives missing? Do they reflect the over-arching goals of NHS commissioning?

Objective 10 specifically mentions three service performance standards for referral-to-treatment (RTT) waiting times. An NHS Trust with few long-waiters will achieve all three performance standards, and one with many long-waiters will not. However that does not mean they are all good standards to use, and the use of all three is already having unintended consequences for patients in those parts of the NHS where a backlog of long-waiters has built up.

Specifically, two of the performance standards (that 90% of admitted and 95% of non-admitted patients must start treatment within a maximum of 18 weeks from referral) are often detrimental to waiting times performance, undermine the ability of the NHS to deliver the NHS Constitution right to treatment within 18 weeks, and are unfair both to patients and to NHS Trusts; these two standards should be omitted. The third RTT standard (that 92% of incomplete pathways should have been waiting no more than 18 weeks from referral) should be retained.

The following example illustrates the point.

Trust A has developed a backlog of patients on its waiting list who have already waited over 18 weeks. The Trust does not want to have a backlog, and notes that the NHS Constitution right to treatment within 18 weeks, the incomplete pathways performance standard, the accepted principle that patients with similar clinical priority should broadly be treated on a first-come-first-served basis, and the wishes of clinicians and managers alike, all point towards a clear and simple solution: treat the over-18-week waiters and thereby clear the backlog.

However Trust A is restricted from doing so by the admitted patients performance standard, which stipulates that 90% of admitted patients must be selected from those who have waited less than 18 weeks. (The performance standard for non-admitted patients has exactly the same effect, though in practice it is less likely to be the stumbling block.)

The admitted patients performance standard has a number of effects:

1) In order to clear 100 long-waiting patients who have already breached 18 weeks, the Trust must at the same time admit 900 short-waiting patients whether their clinical priority justifies it or not (and in most cases it will not). This queue-jumping is unfair to the long-waiting patients.

2) This queue-jumping also pushes up maximum waiting times (as queue-jumping does in any queue) thereby making the long-wait backlog worse than it would have been without the queue-jumping. The number of over-18-week waiters will therefore be much higher than it would have been, if the Trust had been allowed to treat non-urgent patients in date order. This undermines the NHS Constitution right to treatment within 18 weeks.

3) Put another way, the Trust is only able to clear the backlog slowly, because it is only allowed to devote 10% of its activity to the long-waiting backlog. If this restriction were lifted, it could devote all its non-urgent capacity to the backlog (typically between 50% and 95% of activity depending on the number of urgent patients in the casemix) and clear it much more quickly.

4) The Trust Board’s monthly Performance Report monitors all three performance standards, but a majority of Board members have a limited understanding of how the standards act in opposition to each other. This leads to poorer monitoring and decision-making than if just one performance standard, whose effect is intuitive, were monitored.

5) Statistics are collected and published nationally based on all three performance standards, which leads to misunderstandings about the NHS’s waiting times performance by the general public, journalists, and politicians. Such misunderstandings have in the past reached the highest level: exchanges between the Prime Minister and Leader of the Opposition at Prime Minister’s Questions have on occasion assumed that an increase in the number of long-waiters being treated is a bad thing, when in fact it resulted in a reduction in the number of long-waiters still waiting which is a good thing.

In contrast to the admitted and non-admitted performance standards, the newer standard (that 92% of patients on incomplete pathways should have been waiting no more than 18 weeks from referral) does not similarly frustrate good waiting list management, and should therefore be retained.

It may be that the admitted and non-admitted performance standards were included in Objective 10 because they are referred to in directions 2 and 6 of The Primary Care Trusts and Strategic Health Authorities (Waiting Times) Directions 2010, which were intended to support the 18 week rights in the NHS Constitution. For the reasons given above they are poor instruments for delivering that intention, and the directions should therefore be amended to omit reference to the admitted and non-admitted performance standards, and refer instead to the 92% incomplete pathways standard.