hthicai ana legal
Rights to healthcare and the role of the nurse practitioner Bridgit Dimond, University of Glamorgan With the recent developments in healthcare now coming into effect, it is necessary to consider rights to healthcare, the balance of supply and demand and the role of the nurse practitioner as patient advocate.
T
J L h e effects of the National Health Ser vice and Community Care Act of 1990 are now being felt across the country: fund holding group practices are being establish ed; NHS trusts set up; non-executive mem bers appointed; and purchaser and provid er’s relationships established even with di rectly managed units. There is, of course, no absolute right to healthcare. No government could commit itself to such provision. The 1977 National Health Service Act places duties upon the Secretary of State to provide services to such extent as he/she considers necessary to meet all reasonable requirements. Dis cretion must be reasonably exercised in de termining which services should be provid ed and which can be left to the discretion of the health service bodies for their areas.
N H S agreements
Professor Dimond is Barrister at Law and was formerly Dean of Faculty of Professional Studies, University of Glamorgan, Mid Glamorgan
516
The purchasers negotiate NHS agreements with the providers and ensure that the main statutory provisions are available for pa tients within their catchment areas. If de mand exceeds supply and if, before the end of the financial year, the provider has, through increased efficiency, treated the number of patients due to be seen during the whole 12 months and no funds are left, then the beds must remain empty. How ever, beds can be filled if GP fund-holders purchase services for their patients or if pri vate patients have filled the permitted num ber of private beds within the NHS hospi tals. If there is unmet need and the purchas er has no further funds, it may be told that it had the discretion to decide what services should be bought and it could have deter mined its priorities differently. The contents of the NHS agreements be tween purchasers and providers will have to reflect local health needs and priorities. There will be some purchasers who choose not to contract for infertility services, be lieving that there are other conditions that
warrant higher priority. Some conditions might be considered too costly in terms of funding for a single district purchaser to provide; treatment for these may depend on the provision made by other district purchasers in the vicinity and contracts made with an out-of-district provider. If purchasers fail to make provision for services to be provided locally, the Secre tary of State can enforce their legal duties. Recently, some district health authorities stopped undertaking male and female steril ization operations for family planning which was in direct contradiction to earlier guidance. The general managers were re minded of their duty and the fact that such services cannot be made available on pay ment of a non-profit making charge. It is likely that there will be an increase in such central directions.
Approval for out-of-district care One of the major changes that the new in ternal market has created is the seeking of prior approval from the purchasing author ity before patients arc sent for treatment and care outside the district. This is under standable for high-cost cases as these can make huge inroads into the purchaser’s budget. A year’s treatment in a secure unit for the mentally disordered could cost in excess of £70 000. If three such patients arc resident in one district where there is no secure unit and no regional health authority top-slicing, then the total bill could be close to £250 000. What if the purchaser refuses to pay for a patient in its catchment area to be treated in a hospital that is outside this area? The examples of cases where patients have actu ally sued the Secretary of State, the regional health authority and their own district for failing to provide services show that such action is in general not successful. The ap plicant has to show that there has been an unreasonable exercise of the discretion
British Journal of Nursing, 1992, Vol 1, No 10 Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
Rights to healthcare and the role of the nurse practitioner
given by Act of Parliament or that the Sec retary acted so as to frustrate the purpose of the Act (R v Secretary of State for Social Services, 1979; The Times, 1987). It remains to be seen how the courts will react to cases where services are available from other districts but the responsible dis trict is unable to pay for them.
Responsible district What criteria determine which district is re sponsible for an individual patient? Emerg ency treatment is the responsibility of the district in which it is required. Otherwise residence is the basis for responsibility and this is usually fairly clear for most people. But what about students? Are students who are away at university the responsibil ity of the district where they study or the one where they have spent most of their life and where their parents have paid polltax or rates? What if they stay on in their university town to work during the vaca tions and spend little time at home? Is their home district still liable for their healthcare costs? Could it insist on their returning to their home town to receive treatment local ly which may be less expensive than the care being offered in the university town? What if the doctors in the university town consider that the facilities available by their local providers are more medically suitable for the students even though they are more
KEY POINTS •
No person has an absolute right to healthcare.
•
Purchasers must negotiate NHS agreements with providers to ensure main statutory provisions which reflect local needs are available for patients within their catchment areas.
•
If purchasers fail to make suitable provision for local services, the Secretary of State can force them to carry out their legal duties.
•
Approval must be sought from the purchaser before patients are sent for treatment and care outside the district.
•
Responsibility for payment of healthcare costs normally lies with the district in which the patient resides. However, there are certain anomalies within the system.
• There is a danger that problems of pricing will arise causing lengths of stay outside districts on personal patient contracts to be reduced and essential tests and treatments avoided. •
Nurses must ensure that patients’ rights are protected against unreasonable refusal to provide treatment within or outside the district.
British Journal of Nursing, 1992, Vol I, No 10
expensive? Would similar rules on resi dence apply to people who visit the coast on holiday and stay on to arrange for their social security funds to be made available to them in the holiday town? What mechanisms exist to resolve issues where patients consider that their rights to healthcare are being undermined? The 1990 Act provides for the Secretary of State to appoint adjudicators in the event of a dis pute between purchasers and providers, but this mechanism would not necessarily cover disputes between patients and their pur chasing authority.
Pricing the cost of care Another issue arising from the internal market is the problem of pricing. Alloca tions are given on the basis of a block grant. However, if funds are eventually paid on a fee-for-service basis then there is an in herent danger that the number of services will increase to meet the funds that are available. A provider who is able to obtain fees for all services carried out on patients sent from GP fund-holding practices might find that there are many other essential di agnostic tests that have to be carried out or other treatments given. Alternatively, if funds are paid on the av erage patient cost, there will be a danger of avoiding other essential tests and treat ments because these will be in addition to the basic cost which alone is refunded. The purchaser will obviously have a major role in monitoring the care provided and in en suring that there is no excessive treatment. However, the purchaser may be inclined to try to reduce lengths of stay, especially where the care is being provided outside the district on a personal patient contract. With what success can the professional in the provider unit say to the extra-district purchasing authority that ‘the patient needs to be here a few months longer’ when that care is costing the district £X per week and the purchaser says that it does not have the funds available? Finally, never have we been so conscious of individual patient care costs. Medical technology has always been expensive but is it necessary for a patient who needs life saving treatment to be told that care costs £Y per week? Is there likely to be a result ing pressure on the older members of so ciety or the chronically sick to say, ‘Well, I’ve had a good life; that operation seems far too expensive for the country (district health purchasing authority) to pay out for me’. Is this the kind of society we want?
517
Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
Rights to healthcare and the role of the nurse practitioner
Role of the nurse practitioner How do the new developments affect the nurse practitioner? It is clear that never be fore has it been so important to ensure the protection of the patient’s rights against un reasonable refusal to provide treatment within or outside the district. Never has it been so important for standards to be monitored on premature discharge or overuse of procedures and treatments, or for nurses to ensure that standards of pro fessional practice are maintained and the patient protected.
In a recent announcement, the Secretary of State, Virginia Bottomley, expressed an intention to establish a system whereby staff can bring to the attention of managers their concerns about standards of patient care. This is to be welcomed. Nurse practi tioners should not be slow in making use of any system to draw attention to a poten tial minefield of problems. R v Secretary of State for Social Services (1979) ex p. Hincks and others. Solicitor’s Journal 29 June: 436. The Times (1987) re Walker’s Application. The Times 26 November
ADVANCES IN PAEDIATRICS Tuesday 29 and Wednesday 30 September 1992 Kensington New Town Hall, Hornton Street, London, W8 PROGRAMME D ay 1
T u e sd ay 29 S e p te m b e r
8.30- 9.35
R e gistration and co ffee
9.3 5 - 9.45
W e lc o m e
Dr Jack Tinker Editor-in-Chief BJHM
D ay 2
8.30- 9.30
W e d n e sd ay 30 S e p te m b e r R egistration and c o ffee
Endocrinology and M e ta b o lis m C hairm an:
Dr Mike Tarlow (Birmingham) Neonatal Paediatrics
9.30-10.00
C h airm an :
Dr Mike Tarlow (Birmingham) 9.45-10.15
E x trac o rp o re al m e m b ra n e o xygenation (E C M O )
Dr Gale Pearson (Leicester) 10.15-10.45 10.45-11.15 11.15-11.45
Dr Peter Swift (Leicester) 10.00-10.30
Inborn erro rs - advan ces
Speaker to be confirmed 10.30-11.00
G ro w th h orm o n e th era p y - w h o to treat?
Speaker to be confirmed
A rtificial su rfa c ta n t and RD S
Dr Colin Morley (Cambridge)
C h ildhood d ia b e tes
11.00-11.30
C o ffee and exhibition view ing
Feed ing th e p re -te rm baby
Dr Simon Newell (Leeds)
P ae d ia tric N eurology
C o ffe e and exhibition view ing
11.30-12.00
N e w d irec tio ns in th e m a n a g e m e n t of epilepsy
Dr Stuart Green (Birmingham) G astro e n te ro lo g y
11.45-12.15
Professor Stuart Tanner (Sheffield) 12.15-12.45
Professor David Candy (London) Lunch
14.00-14.30
T h e n e w g en etics
Dr Peter Farndon (Birmingham)
Dr Helen Roper (Birmingham) 12.30-13.30
M a n a g e m e n t of juv en ile chronic arthritis T e a and exhib itio n view ing
In fe ctio u s D isease
15.30-16.00
13.30-14.00
A d va nc es in tro p ic al paed iatric s P a e d ia tric s A ID S
Dr Vas Novelli (London)
N e w vaccin es
Dr Norman Begg (London) 14.00-14.30
F ragile X
Dr Angela Barnicoat (London) 14.30-15.00
G lue e a r
15.00-15.30
T ea and exhibition view ing
15.30-16.00
S ID S - w h a t's new ?
Professor Mark Haggard (Nottingham)
Dr Ruth Gilbert (London)
Dr Chris Ellis (Birmingham) 16.00-16.30
Lunch and exhibition view ing
C o m m u n ity IP aediatrics
Dr Taunton Southwood (Birmingham) 15.00-15.30
N eu ro m u s cu lar d isorders
G as tro e n te ritis
12.45-14.00
14.30-15.00
12.00-12.30
Liver dis ea se
16.00-16.30
The school m e d ic al exam in atio n
Dr David Hall (London)
For further information and to register please contact Robyn-Jane Howitt, Conference Manager, Mark Allen Publishing, Croxted Mews, 288 Croxted Road, London SE24 9DA. Phone: 081 671 7521
518
British Journal of Nursing, 1992, Vol 1, No 10 Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
Rights to healthcare and the role of the nurse practitioner Bridgit Dimond, University of Glamorgan With the recent developments in healthcare now coming into effect, it is necessary to consider rights to healthcare, the balance of supply and demand and the role of the nurse practitioner as patient advocate.
T
J L h e effects of the National Health Ser vice and Community Care Act of 1990 are now being felt across the country: fund holding group practices are being establish ed; NHS trusts set up; non-executive mem bers appointed; and purchaser and provid er’s relationships established even with di rectly managed units. There is, of course, no absolute right to healthcare. No government could commit itself to such provision. The 1977 National Health Service Act places duties upon the Secretary of State to provide services to such extent as he/she considers necessary to meet all reasonable requirements. Dis cretion must be reasonably exercised in de termining which services should be provid ed and which can be left to the discretion of the health service bodies for their areas.
N H S agreements
Professor Dimond is Barrister at Law and was formerly Dean of Faculty of Professional Studies, University of Glamorgan, Mid Glamorgan
516
The purchasers negotiate NHS agreements with the providers and ensure that the main statutory provisions are available for pa tients within their catchment areas. If de mand exceeds supply and if, before the end of the financial year, the provider has, through increased efficiency, treated the number of patients due to be seen during the whole 12 months and no funds are left, then the beds must remain empty. How ever, beds can be filled if GP fund-holders purchase services for their patients or if pri vate patients have filled the permitted num ber of private beds within the NHS hospi tals. If there is unmet need and the purchas er has no further funds, it may be told that it had the discretion to decide what services should be bought and it could have deter mined its priorities differently. The contents of the NHS agreements be tween purchasers and providers will have to reflect local health needs and priorities. There will be some purchasers who choose not to contract for infertility services, be lieving that there are other conditions that
warrant higher priority. Some conditions might be considered too costly in terms of funding for a single district purchaser to provide; treatment for these may depend on the provision made by other district purchasers in the vicinity and contracts made with an out-of-district provider. If purchasers fail to make provision for services to be provided locally, the Secre tary of State can enforce their legal duties. Recently, some district health authorities stopped undertaking male and female steril ization operations for family planning which was in direct contradiction to earlier guidance. The general managers were re minded of their duty and the fact that such services cannot be made available on pay ment of a non-profit making charge. It is likely that there will be an increase in such central directions.
Approval for out-of-district care One of the major changes that the new in ternal market has created is the seeking of prior approval from the purchasing author ity before patients arc sent for treatment and care outside the district. This is under standable for high-cost cases as these can make huge inroads into the purchaser’s budget. A year’s treatment in a secure unit for the mentally disordered could cost in excess of £70 000. If three such patients arc resident in one district where there is no secure unit and no regional health authority top-slicing, then the total bill could be close to £250 000. What if the purchaser refuses to pay for a patient in its catchment area to be treated in a hospital that is outside this area? The examples of cases where patients have actu ally sued the Secretary of State, the regional health authority and their own district for failing to provide services show that such action is in general not successful. The ap plicant has to show that there has been an unreasonable exercise of the discretion
British Journal of Nursing, 1992, Vol 1, No 10 Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
Rights to healthcare and the role of the nurse practitioner
given by Act of Parliament or that the Sec retary acted so as to frustrate the purpose of the Act (R v Secretary of State for Social Services, 1979; The Times, 1987). It remains to be seen how the courts will react to cases where services are available from other districts but the responsible dis trict is unable to pay for them.
Responsible district What criteria determine which district is re sponsible for an individual patient? Emerg ency treatment is the responsibility of the district in which it is required. Otherwise residence is the basis for responsibility and this is usually fairly clear for most people. But what about students? Are students who are away at university the responsibil ity of the district where they study or the one where they have spent most of their life and where their parents have paid polltax or rates? What if they stay on in their university town to work during the vaca tions and spend little time at home? Is their home district still liable for their healthcare costs? Could it insist on their returning to their home town to receive treatment local ly which may be less expensive than the care being offered in the university town? What if the doctors in the university town consider that the facilities available by their local providers are more medically suitable for the students even though they are more
KEY POINTS •
No person has an absolute right to healthcare.
•
Purchasers must negotiate NHS agreements with providers to ensure main statutory provisions which reflect local needs are available for patients within their catchment areas.
•
If purchasers fail to make suitable provision for local services, the Secretary of State can force them to carry out their legal duties.
•
Approval must be sought from the purchaser before patients are sent for treatment and care outside the district.
•
Responsibility for payment of healthcare costs normally lies with the district in which the patient resides. However, there are certain anomalies within the system.
• There is a danger that problems of pricing will arise causing lengths of stay outside districts on personal patient contracts to be reduced and essential tests and treatments avoided. •
Nurses must ensure that patients’ rights are protected against unreasonable refusal to provide treatment within or outside the district.
British Journal of Nursing, 1992, Vol I, No 10
expensive? Would similar rules on resi dence apply to people who visit the coast on holiday and stay on to arrange for their social security funds to be made available to them in the holiday town? What mechanisms exist to resolve issues where patients consider that their rights to healthcare are being undermined? The 1990 Act provides for the Secretary of State to appoint adjudicators in the event of a dis pute between purchasers and providers, but this mechanism would not necessarily cover disputes between patients and their pur chasing authority.
Pricing the cost of care Another issue arising from the internal market is the problem of pricing. Alloca tions are given on the basis of a block grant. However, if funds are eventually paid on a fee-for-service basis then there is an in herent danger that the number of services will increase to meet the funds that are available. A provider who is able to obtain fees for all services carried out on patients sent from GP fund-holding practices might find that there are many other essential di agnostic tests that have to be carried out or other treatments given. Alternatively, if funds are paid on the av erage patient cost, there will be a danger of avoiding other essential tests and treat ments because these will be in addition to the basic cost which alone is refunded. The purchaser will obviously have a major role in monitoring the care provided and in en suring that there is no excessive treatment. However, the purchaser may be inclined to try to reduce lengths of stay, especially where the care is being provided outside the district on a personal patient contract. With what success can the professional in the provider unit say to the extra-district purchasing authority that ‘the patient needs to be here a few months longer’ when that care is costing the district £X per week and the purchaser says that it does not have the funds available? Finally, never have we been so conscious of individual patient care costs. Medical technology has always been expensive but is it necessary for a patient who needs life saving treatment to be told that care costs £Y per week? Is there likely to be a result ing pressure on the older members of so ciety or the chronically sick to say, ‘Well, I’ve had a good life; that operation seems far too expensive for the country (district health purchasing authority) to pay out for me’. Is this the kind of society we want?
517
Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
Rights to healthcare and the role of the nurse practitioner
Role of the nurse practitioner How do the new developments affect the nurse practitioner? It is clear that never be fore has it been so important to ensure the protection of the patient’s rights against un reasonable refusal to provide treatment within or outside the district. Never has it been so important for standards to be monitored on premature discharge or overuse of procedures and treatments, or for nurses to ensure that standards of pro fessional practice are maintained and the patient protected.
In a recent announcement, the Secretary of State, Virginia Bottomley, expressed an intention to establish a system whereby staff can bring to the attention of managers their concerns about standards of patient care. This is to be welcomed. Nurse practi tioners should not be slow in making use of any system to draw attention to a poten tial minefield of problems. R v Secretary of State for Social Services (1979) ex p. Hincks and others. Solicitor’s Journal 29 June: 436. The Times (1987) re Walker’s Application. The Times 26 November
ADVANCES IN PAEDIATRICS Tuesday 29 and Wednesday 30 September 1992 Kensington New Town Hall, Hornton Street, London, W8 PROGRAMME D ay 1
T u e sd ay 29 S e p te m b e r
8.30- 9.35
R e gistration and co ffee
9.3 5 - 9.45
W e lc o m e
Dr Jack Tinker Editor-in-Chief BJHM
D ay 2
8.30- 9.30
W e d n e sd ay 30 S e p te m b e r R egistration and c o ffee
Endocrinology and M e ta b o lis m C hairm an:
Dr Mike Tarlow (Birmingham) Neonatal Paediatrics
9.30-10.00
C h airm an :
Dr Mike Tarlow (Birmingham) 9.45-10.15
E x trac o rp o re al m e m b ra n e o xygenation (E C M O )
Dr Gale Pearson (Leicester) 10.15-10.45 10.45-11.15 11.15-11.45
Dr Peter Swift (Leicester) 10.00-10.30
Inborn erro rs - advan ces
Speaker to be confirmed 10.30-11.00
G ro w th h orm o n e th era p y - w h o to treat?
Speaker to be confirmed
A rtificial su rfa c ta n t and RD S
Dr Colin Morley (Cambridge)
C h ildhood d ia b e tes
11.00-11.30
C o ffee and exhibition view ing
Feed ing th e p re -te rm baby
Dr Simon Newell (Leeds)
P ae d ia tric N eurology
C o ffe e and exhibition view ing
11.30-12.00
N e w d irec tio ns in th e m a n a g e m e n t of epilepsy
Dr Stuart Green (Birmingham) G astro e n te ro lo g y
11.45-12.15
Professor Stuart Tanner (Sheffield) 12.15-12.45
Professor David Candy (London) Lunch
14.00-14.30
T h e n e w g en etics
Dr Peter Farndon (Birmingham)
Dr Helen Roper (Birmingham) 12.30-13.30
M a n a g e m e n t of juv en ile chronic arthritis T e a and exhib itio n view ing
In fe ctio u s D isease
15.30-16.00
13.30-14.00
A d va nc es in tro p ic al paed iatric s P a e d ia tric s A ID S
Dr Vas Novelli (London)
N e w vaccin es
Dr Norman Begg (London) 14.00-14.30
F ragile X
Dr Angela Barnicoat (London) 14.30-15.00
G lue e a r
15.00-15.30
T ea and exhibition view ing
15.30-16.00
S ID S - w h a t's new ?
Professor Mark Haggard (Nottingham)
Dr Ruth Gilbert (London)
Dr Chris Ellis (Birmingham) 16.00-16.30
Lunch and exhibition view ing
C o m m u n ity IP aediatrics
Dr Taunton Southwood (Birmingham) 15.00-15.30
N eu ro m u s cu lar d isorders
G as tro e n te ritis
12.45-14.00
14.30-15.00
12.00-12.30
Liver dis ea se
16.00-16.30
The school m e d ic al exam in atio n
Dr David Hall (London)
For further information and to register please contact Robyn-Jane Howitt, Conference Manager, Mark Allen Publishing, Croxted Mews, 288 Croxted Road, London SE24 9DA. Phone: 081 671 7521
518
British Journal of Nursing, 1992, Vol 1, No 10 Downloaded from magonlinelibrary.com by 154.059.124.102 on January 10, 2019.
