The new NHS Commissioning Board is fumbling the ball on waiting times, by continuing to penalise hospitals who treat their long-waiting patients, but not if they keep them waiting.

The perverse penalties are in the near-final draft of the 2013/14 NHS standard contract (Section A p.62, footnote 1), and apply to the targets that 90 per cent of admitted patients (and 95 per cent of non-admitted patients) must be selected from the under-18-week portion of the waiting list. There are no penalties for building up backlogs of over-18-week waiters.

Hospitals are, however, prevented from building up indefinite backlogs by a very-welcome new ‘zero tolerance’ penalty of £5,000, per month, for every patient reported on the waiting list who has waited more than 52 weeks since referral (Section A p.45). This at least puts a backstop on backlogs, albeit at the extreme end.

If these 18-week penalties remain unaltered in the final Contract, it represents a major setback for waiting times policy. The direction of travel since November 2011 has been to move away from punishing hospitals who treat their long-waiters, towards penalties that prevent those long-waiters from building up in the first place. That is why the incomplete pathways (i.e. waiting list based) target was introduced in the Operating Framework 2012/13 (2.31), and why new regulations for the incomplete pathways target come into force from 1st February 2013 (see regulation 45(3)).

The targets in the current draft Contract are a bit like lobster pots: you can get into them, but it’s hard to get back out again. It’s all very well saying to a hospital “well, you shouldn’t have built up that backlog in the first place”, but once the backlog exists it is hardly constructive (or good for patients) to insist that every time they admit a long-waiting patient they must also find room for 9 short-waiting patients to be admitted out of turn. Now that data collection for incomplete pathways has improved, it makes sense to target the backlog directly and phase out the perverse incentives.

It will be interesting to see if the final version of the Contract puts things right. If it doesn’t, then the targets must be deliberate and we would have to ask: why? None of the possibilities that I can think of are terribly flattering to the Commissioning Board, so let’s give them the benefit of the doubt and wait to see what the final Contract says.