Exclusive Private companies have been paid tens of millions of pounds to care for patients who launched challenges during the first year of the NHS Constitution after not receiving treatment within 18 weeks of GP referral, Pulse can reveal.
The huge payments leave GPs with an ethical and legal dilemma as they take over responsibility for commissioning, with clinical decisions over access to treatments complicated by the potential for challenges under the constitution.
NHS managers have paid nearly £40m to private firms after complaints made under the terms of the constitution from patients on waiting lists, and an estimated £100m if our findings from 55 PCTs are extrapolated across England.
The Department of Health said GPs would be responsible for delivering the rights enshrined in the NHS Constitution when they took over commissioning, with legal experts warning they face a spiralling bill as waiting times rise.
The Government stopped performance management of PCTs against the NHS 18-week target last May, after claiming doctors needed the flexibility to treat some patients quickly while leaving less urgent cases to wait for longer.
But the NHS Constitution continues to enshrine the rights it gave to patients in April 2010 to NHS treatment ‘within maximum waiting times, or for the NHS to take all reasonable steps to offer a range of suitable alternative providers if this is not possible'.
Nearly 20,000 patients have been treated at private facilities run by companies including BMI, Spire Healthcare and Care UK, for procedures in areas including orthopaedics – where nearly one patient in seven waits for longer than 18 weeks – gynaecology, cardiology and diagnostic scans for cancer.
Trusts also spent £200,000 to send patients abroad for treatment in other European countries – which patients are also entitled to demand under the NHS Constitution if treatments cannot be provided by the NHS ‘within a reasonable time frame'.
Latest figures show 90.8% of the 300,000 patients seen in May were within the 18-week time frame, down from 92.9% in the same month last year.
Of the 2.5m still waiting for treatment, there are nearly 225,000 people who have waited over 18 weeks for treatment – up by 8% on a year ago.
Ben Troke, a partner and specialist in the NHS Constitution at Browne Jacobson solicitors, warned GPs waiting list disputes were ‘going to be part of the future NHS battleground'.
‘Once you make a fuss of giving people rights they will expect you to deliver,' he said. ‘At the moment GPs are able to blame their PCT, but in a couple of years it will be down to GP-led commissioning groups, and I'm not sure the public will appreciate the distinction between that and individual GPs.'
GPC negotiator Dr Peter Holden said: ‘The Government needs to come clean about waiting lists and money. Some managers feel they must keep waiting lists down to meet targets and are spending money on private firms to do this. It's time we took a more mature view and accepted people will have to wait.'
Dr Simon Poole, a GP in Histon, Cambridgeshire, and deputy chair of the GPC commissioning and service development sub-committee, said: ‘The consequences of taking money out of the NHS need to be considered. GPs will have a really difficult balancing act.'
The DH said: ‘Under the NHS Constitution, patients have a legal right to receive their first treatment within 18 weeks of referral, whether delivered by usual NHS providers or the independent sector.' It added that PCTs already spent £400m on private-sector treatments under patient choice obligations.
Additional research by Ben Tritton.
MAP: PCTs paying private providers to reduce waiting lists
View PCTs paying private providers to reduce waiting lists in a larger map