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Patient Rights (Scotland) Act 2011

Type Act of the Scottish Parliament

Publication 2011-03-31

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Charter of Patient Rights and Responsibilities

1

(1) The Scottish Ministers must, within 6 months of the coming into force of this section, publish a document to be known as the Charter of Patient Rights and Responsibilities (“the Charter”).

(2) The Charter must set out a summary of the rights and responsibilities (as existing at the date of publication) of patients and relevant persons.

(3) The Charter may also include—

(a) a summary of the duties of relevant NHS bodies,

(b) a summary of the behaviour expected from patients and relevant persons,

(c) such other information as the Scottish Ministers consider relevant in relation to health care or the health service (for example, information relating to targets for the periods of time within which patients are to be treated).

(4) Nothing in the Charter is to—

(a) give rise to any new rights,

(b) impose any new responsibilities, or

(5) For the purposes of this section and section 2, a “relevant person” is—

(a) a person who has a personal interest in the health care of a patient (for example a member of the patient's family or a carer),

(b) such other categories of person as the Scottish Ministers consider appropriate.

(6) The Charter is to be published in such form and manner as the Scottish Ministers consider appropriate.

(7) Before publishing the Charter under subsection (1), the Scottish Ministers must—

(a) consult such persons as they consider appropriate,

(b) lay a copy of the Charter before Parliament.

(8) The Scottish Ministers must, as soon as reasonably practicable after publication of the Charter under subsection (1), notify each relevant NHS body of the publication of the Charter.

(9) Each relevant NHS body must make available without charge copies of the Charter to patients, staff and members of the public.

(10) In carrying out the duty under subsection (9), a relevant NHS body must take account of the particular needs of the persons to whom the Charter is to be made available as to the form of the Charter (for example by making it available in different languages or in Braille or by having regard to the particular needs of adults with incapacity within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000 (asp 4)).

Review and revision of Charter

2

(1) The Scottish Ministers must carry out a review of the Charter at least once in any period of 5 years.

(2) The purposes of a review under subsection (1) are—

(a) to ensure that the Charter continues to accurately summarise the rights and responsibilities of patients and relevant persons (as existing at the date of review), and

(b) to assess how effective the Charter is in raising awareness of the rights and responsibilities of patients and relevant persons.

(3) When reviewing the Charter under subsection (1), the Scottish Ministers must also review how effective the arrangements for the publication and distribution of the Charter have been in promoting awareness of the Charter and, if they consider it appropriate, take such steps as they consider necessary to improve those arrangements.

(4) In carrying out a review under subsections (1) and (3) the Scottish Ministers must consult such persons as they consider appropriate.

(5) The first review under subsection (1) must be completed not later than 5 years from the date on which the Charter is published under section 1(1).

(6) The Scottish Ministers must revise the Charter where, following a review under subsection (1), the Scottish Ministers consider that the Charter—

(a) does not accurately summarise the rights and responsibilities of patients and relevant persons, or

(b) is not sufficiently effective in raising awareness of the rights and responsibilities of patients and relevant persons.

(7) The Scottish Ministers may revise the Charter at any other time if they consider it appropriate to do so (whether following a review under subsection (1) or otherwise).

(8) Where the Scottish Ministers revise the Charter under subsection (6) or (7), they must—

(a) publish it as so revised (in such form and manner as they consider appropriate),

(b) notify each relevant NHS body of the publication of the Charter as so revised.

(9) Before publishing the Charter under subsection (8)(a), the Scottish Ministers must—

(a) consult such persons as they consider appropriate, and

(b) lay a copy of the Charter before Parliament.

(10) In this Act, a reference to the Charter is a reference to the Charter as it may be revised from time to time.

Patient rights

3

(1) It is the right of every patient that the health care received by the patient be as described in subsection (2).

(2) Health care is to—

(a) be patient focused: that is to say, anything done in relation to the patient must take into account the patient's needs,

(b) have regard to the importance of providing the optimum benefit to the patient's health and wellbeing,

(c) allow and encourage the patient to participate as fully as possible in decisions relating to the patient's health and wellbeing (including, where the health care being provided includes a service provided under the 2021 Act, decisions mentioned in subsection (3A)),

(d) have regard to the importance of providing such information and support as is necessary to enable the patient to participate in accordance with paragraph (c) and in relation to any related processes, taking all reasonable steps to ensure that the patient is supplied with information and support in a form that is appropriate to the patient's needs.

(3) It is the right of every patient to give feedback or comments, or raise concerns or complaints about health care received.

(3A) The decisions referred to in subsection (2)(c) are—

(a) a decision about whether to undergo a forensic medical examination (and whether any such examination should take place without the incident in connection with which the examination would be carried out having been reported to a constable),

(b) a decision about whether to make a request under section 8(1)(a) of the 2021 Act.

(4) The Scottish Ministers, after consulting such persons as they consider appropriate, may by order modify subsection (2).

Patient rights: further provision

4

(1) In construing the right of a patient under section 3(1), the matters set out in subsection (2) below must be taken into account.

(2) The matters are—

(a) the rights of other patients under section 3(1),

(b) the desirability of action delivering health care being proportionate, and otherwise appropriate, to the circumstances of each case,

Health care principles

Duty to uphold the health care principles

5

(1) For the purposes of the rights conferred by section 3, each relevant NHS body must—

(a) in performing its health service functions, uphold the health care principles in so far as they are relevant to the function being performed, and

(b) ensure that any person with whom it enters into a contract, agreement or arrangements to provide health care upholds the health care principles in so far as they are relevant to the service being provided.

(2) For the purposes of this Act, a “relevant NHS body” is—

(a) a Health Board,

(b) a Special Health Board,

Health care principles

6

(1) In this Act, “health care principles” are the principles set out in the schedule.

(2) The Scottish Ministers, after consulting such persons as they consider appropriate, may by order modify the schedule.

Health care principles: guidance and directions

7

(1) A relevant NHS body must, for the purposes of section 5, have regard to any guidance issued by the Scottish Ministers in relation to the practical application of the health care principles.

(2) Before providing guidance in relation to the health care principles, the Scottish Ministers must consult such persons as they consider appropriate.

(3) The Scottish Ministers may give a relevant NHS body directions as to the practical application of the health care principles; and a relevant NHS body must comply with any such direction.

Treatment time guarantee

8

(1) In pursuance of the right conferred by section 3(1), an eligible patient is to start to receive an agreed treatment within the maximum waiting time.

(2) The guarantee described in subsection (1) is to be known as the treatment time guarantee.

(3) A Health Board must take all reasonably practicable steps to ensure that it complies with the treatment time guarantee.

(4) Those steps include, in particular, steps for—

(a) monitoring each treatment time guarantee,

(b) appropriately prioritising the start of the patient's agreed treatment taking account of the patient's clinical needs and the clinical needs of other eligible patients awaiting agreed treatments in accordance with the treatment time guarantee,

(c) making the necessary arrangements for the agreed treatment of the patient to start in accordance with the treatment time guarantee either—

(i) within its area, or

(ii) if it is unable (or anticipates it will be unable) to treat a patient in its own area, through another Health Board or a suitable alternative provider of the treatment.

(5) The treatment time guarantee is in addition to, and does not affect, any duty of a Health Board to—

(a) comply with any orders, regulations or directions made by the Scottish Ministers (whether under the 1978 Act or otherwise) which relate to targets for periods of time within which treatments or services are to be provided, or

(b) have regard to any guidance issued by the Scottish Ministers which relates to such targets.

Treatment time guarantee: further provision

9

(1) The Scottish Ministers must by regulations make the further provision about the treatment time guarantee specified in subsection (2).

(2) The further provision is—

(a) the descriptions of patients which are eligible for the treatment time guarantee, and

(b) how waiting time is to be calculated (in particular, specifying the circumstances in which days are not to be counted towards a maximum waiting time).

(3) The Scottish Ministers may by regulations specify—

(a) treatments and services (including categories of treatments and services) in respect of which the treatment time guarantee does not apply,

(b) action that a Health Board is to take to ensure that it complies with a treatment time guarantee,

(c) circumstances in which the maximum waiting time for a patient may be extended or recalculated (and how such extension or recalculation is to be done),

(d) circumstances in which responsibility for a treatment time guarantee may transfer to a different Health Board,

(e) the information that a Health Board is to provide to patients about the treatment time guarantee, including—

(i) how waiting times are calculated,

(ii) the circumstances in which the maximum waiting time may be extended, recalculated or suspended,

(iii) such other information as the Scottish Ministers consider appropriate.

(4) The Scottish Ministers may by order—

(a) amend the duration of the maximum waiting time for the time being specified in section 13,

(b) specify such different period of time to be the maximum waiting time under section 13 in relation to any treatment or services specified in such order.

Breach of the treatment time guarantee

10

(1) This section applies where a Health Board has not complied with a treatment time guarantee.

(2) The Health Board must—

(a) make such arrangements as are necessary to ensure that the agreed treatment starts at the next available opportunity,

(b) provide an explanation to the patient as to why the treatment did not start within the maximum waiting time,

(i) the advice and support available (including in particular the patient advice and support service described in section 18), and

(ii) how to give feedback or comments or raise concerns or complaints.

(3) In making the arrangements mentioned in subsection (2)(a), the Health Board—

(a) must not give priority to the start of any treatment where such prioritisation would, in the Health Board's opinion, be detrimental to another patient with a greater clinical need for treatment,

(b) must have regard to the patient's availability, and

Treatment time guarantee: guidance and directions

11

(1) Health Boards must, when taking steps to start the treatment of eligible patients, have regard to any guidance issued by the Scottish Ministers which relates to the treatment time guarantee (and in particular, Health Boards' compliance with it).

(2) The Scottish Ministers may direct a Health Board to take specified action in relation to its compliance with the treatment time guarantee (including, in particular, the steps it must take).

Treatment time guarantee: suspension

12

(1) This section applies where the Scottish Ministers consider that exceptional circumstances exist.

(2) The Scottish Ministers may direct that the treatment time guarantee be suspended for such period as they consider necessary.

(3) But such period of suspension must not exceed 30 days.

(4) The Scottish Ministers may by order—

(a) extend the duration of a period of suspension under subsection (2) beyond the 30 day limit in subsection (3) for such further period as they consider necessary,

(b) suspend the treatment time guarantee for such period in excess of 30 days as they consider necessary.

(5) An order made under subsection (4) (other than one to which subsection (7) applies)—

(a) must be laid before the Scottish Parliament, and

(b) ceases to have effect at the expiry of the period of 28 days beginning with the date on which it was made unless, before the expiry of that period, the order has been approved by resolution of the Parliament.

(6) Subsection (7) applies to an order made under subsection (4) consisting only of—

(a) provision revoking an earlier order under subsection (4), or

(b) such provision and provision made by virtue of section 25(1)(c).

(7) An order to which this subsection applies is subject to annulment in pursuance of a resolution of the Parliament.

(8) In reckoning for the purposes of subsection (5)(b) any period of 28 days, no account is to be taken of any period during which the Scottish Parliament is—

(a) dissolved, or

(b) in recess for more than 4 days.

(9) Subsection (5)(b) is without prejudice to—

(a) anything previously done by reference to—

(i) a direction under subsection (2),

(ii) an order under subsection (4), or

(b) the making of a new order under subsection (4).

Treatment time guarantee: key terms

13

For the purposes of this section and sections 8 to 12—

“agreed treatment” means a specific treatment agreed between an eligible patient and the Health Board;

“eligible patient” means a patient of a description specified in the regulations to be made in pursuance of section 9(2)(a) as being eligible for the treatment time guarantee;

“Health Board” includes the National Waiting Times Centre Board;

“maximum waiting time” is the period of 12 weeks beginning with the date on which the patient agrees to the agreed treatment;

“treatment” means a surgical or medical intervention ordinarily provided by the Health Board (other than such treatments or services as may be specified in regulations made in pursuance of section 9(3)(a));

“treatment time guarantee” has the meaning given in section 8(2).

Patient feedback, comments, concerns or complaints

Encouragement of patient feedback etc.

14

(1) A relevant NHS body is to encourage patients to give feedback or comments, or raise concerns or complaints, on health care.

(2) Patients may give such feedback or comments to, or raise such concerns or complaints with—

(a) the relevant NHS body, or

(b) a provider of the patient advice and support service.

(3) Where feedback or a comment is given to, or a concern or a complaint is raised with, a provider of the patient advice and support service, the provider may pass the feedback, comment, concern or complaint to the relevant NHS body (but only with the consent of the patient).

(4) The relevant NHS body must consider feedback, comments, concerns or complaints received with a view to improving the performance of its functions.

(5) The Scottish Ministers may require a relevant NHS body to provide them with information regarding the performance of the duties under subsections (1) and (4).

(6) The Scottish Ministers may give a relevant NHS body directions about the performance of the duties under subsections (1) and (4).

Arrangements for handling and responding to patient feedback etc.

15

(1) The Scottish Ministers must ensure that each relevant NHS body has adequate arrangements in place for the matters described in subsection (3).

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