The final 2013/14 NHS Standard Contract has now been published, with a small but welcome change in the penalties for breaching the 18 week waiting times targets. In the previous “near-final” draft there were penalties for treating long-waiters, but none for allowing long-waiters to build up in the first place.

In the final version (Particulars p.58), any specialties with large 18-week backlogs face new penalties of up to 0.625 per cent of elective revenue every month. But the penalties for admitting long-waiters also remain in force: if a specialty admits its long-waiters instead of keeping them waiting, it faces penalties of up to 2.5 per cent of elective revenue every month (although those higher penalties would only apply while the backlog is in the process of being cleared).

It is welcome that the Commissioning Board has introduced penalties for having 18-week backlogs. This tackles the root of the problem, and rightly draws attention to the waiting list itself instead of those patients lucky enough to be selected for treatment. It may also strengthen the hand of providers who wish to treat extra patients in order to control the size of their waiting lists.

However at 0.625 per cent the penalties are rather small, and the regime is now very complex with contradictory penalties applying across the three 18-week targets. This makes it difficult for people who are not immersed in the subject to understand and interpret the numbers (a problem that has extended right up to the Prime Minister). The continued penalties for treating long-waiters are perverse, and it would be better to drop them and simply monitor completed patient pathways as a means of catching data errors and ‘gaming’.

So it’s a small and rather slow step, but at least it’s in the right direction.

How should the NHS respond to the new target regime? Fundamentally, waiting times are a function of the size of the waiting list and the order in which patients are scheduled. It is no longer possible for specialties to avoid penalties simply by admitting 9 short-waiters for every 1 long-waiter, and instead they must address the fundamentals: by knowing how small their waiting list needs to be to sustain 18 weeks, and keeping it below that size; and by scheduling patients according to the well-accepted principles that urgent patients should be treated quickly and other patients should be treated broadly on a first-come-first-served basis.

If the new penalty regime achieves a widespread return to those fundamentals, then it will have succeeded.