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Are NHS Waiting Targets A Legal Obligation or a Guideline?

Updated: May 8

A recent legal case which has been brought to the High Court has raised the question about whether NHS waiting times are a legal obligation, or an administrative target. The Law Gazette reports that the action against the NHS has been taken by a group of people who are awaiting treatment relating to gender reassignment.

People who identify as a different gender to that assigned at birth can wait well beyond the NHS’s stated 18-week target for treatment. In fact, they can wait for between four and five years, which may be crucial lost development time for children and adolescents.

David Lock KC, for the claimant, said: ‘The underlying condition is not a medical disease or injury of itself but the consequence of having this condition can lead to medical consequence. The anguish [felt] knowing something can be done and being on a seemingly endless waiting list.

‘It is not good enough to say [the NHS] recognise problems and are taking steps to reduce the problem. This is not a case where there is some additional factor - "this cancer is more common in men than women [for example]". This is direct discrimination where everybody in the cohort has the same protected characteristic. It is unlawful.’

There is currently a record 7.1 million people on the NHS waiting list, with 401,537 patients waiting for over a year for treatment, according to the British Medical Association. Before the pandemic hit in February 2020, there were 4.43 million people on the waiting list.

Eleanor Grey KC, for the NHS, said: ‘The 18-week commitment is universal [across services] as set out in the NHS constitution and NHS framework. I do accept the problem is deeply serious and needs to be grappled with. The reasons are unique to this service as well. There has been an explosion in referrals, and it is an explosion.’

She added: ‘We do not know enough about the background prevalence, but social norms have changed to a degree that children and young people are rightly seeking treatment that they may need.’

A High Court judge must now decide which legal and ethical issues may be at stake in this case, and deliver their verdict in due course.

The BMA suggests that the NHS should enlist in the help of the private sector to help reduce waiting lists, take more measures to retain and increase the workforce, and develop better working relationships between primary care and secondary care.

Other measures being taken to tackle waiting times include a new £360m federated data programme, which is set to go out to tender in the next few weeks, according to The Telegraph.

An NHS spokesman said: “The federated data platform will ensure that NHS staff have access to the information they need to improve patient care and save lives.”

“Platforms are already being used by NHS trusts to do this that are reducing cancer waiting times, speeding up diagnosis and getting patients home quicker and we want to extend the benefits across England.”

The new programme is currently awaiting sign-off from the Department of Health.

If you would like some more information about validation of patient pathways, please visit our website today.

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