The National Audit Office’s report into NHS waiting times for elective and cancer treatment made headlines when it was published (20 March 2019), not so much because it revealed that waiting time standards for elective treatment have not been met for three years, but more for the concern that extended waiting times would provoke an upturn in negligence claims.

Waiting times for elective treatment have slipped

Since the introduction of the Patients’ Charter in 1991 to tackle the growing queue of people waiting for elective treatment (some people were waiting for up to two years), successive governments have introduced ever more stringent waiting time standards, not just for inpatients and outpatients, but also for other areas including A&E. The NHS Constitution states that patients have the right to receive ‘consultant-led’ care within 18 weeks, and those with suspected cancer should be seen within two weeks. Until 2016, 92% of elective patients were receiving treatment within the specified 18-week timeframe but since then the NHS has struggled to keep pace with the ever growing numbers of people being referred for elective procedures. It’s not difficult to see the reason why: patient numbers have increased substantially; bed occupancy has risen to unacceptably high levels, while the number of available beds has decreased; financial constraints; and continuing staff shortages, particularly in diagnostic services.

Correlating delay with a rise in negligence claims is potentially misleading

Nonetheless, slipping waiting time standards are not, of themselves, necessarily a precursor – or a predictor – of increased negligence claims. It certainly makes a good headline but it is potentially misleading. Although the NAO report highlighted that 40% of negligence claims arise from delays to treatment or diagnosis, it is crucial to drill down further. An extended waiting time does not, of itself, necessarily lead to negligence. Generally speaking, where negligence can be proved, it is the cause of the delay and not the delay itself that is usually at the heart of the problem. Delays caused by misdiagnosis, misreading results, failing to carry out the correct tests, and other errors may well lead to avoidable harm and thus come under the negligence microscope. In other words, medical negligence lawyers have to scrutinise cause and effect carefully. For instance, a delay in receiving elective surgery is not necessarily a contributory factor to a potential negligence case but human error that causes a delay may well be. This is particularly relevant in cancer treatment where, if test results are lost or misinterpreted, the subsequent delay between referral, correct diagnosis, and then treatment can be fatal.

Long term effects of delay need more study

The NHS is treating more patients than ever, an upwards trajectory that is unlikely to change given the aging populations, increasing number of treatments available, and continuing technological advances. The commitment to improve overall health outcomes is leading GPs and hospitals to concentrate on the most urgent cases, such as cancer referrals and emergency care, rather non-urgent procedures. It is the long-term effects of the latter that the NAO report recommends the NHS consider more fully, while acknowledging that it is only likely to be solved by considerable financial investment and staffing increases.

Cause and effect of delay

There are so many challenges facing the NHS that gathering evidence to prove a negligence case requires research into a great many interconnected factors, one on its own, such as an extended delay, is very unlikely to prove decisive. Therefore, although delay may be a factor, it will depend on why the delay occurred and whether or not it was material to any subsequent harm. The NAO report provides an insight into a beleaguered health service trying to maintain performance standards under difficult circumstances. Its purpose is to provide analysis to help the NHS manage and improve waiting times; it is not designed either to frighten the population into believing that delay will lead to harm, nor is it a platform for launching spurious negligence claims. The tests for determining negligence are stringent and must be followed correctly, which any experienced negligence lawyer will be at pains to explain.

About the author

Jeanette Whyman Partner

Jeanette is head of the medical negligence team. Having worked previously for Hospital Trusts, Jeanette has extensive knowledge of hospital practices and procedures. This means that she is able to assess a case speedily and to anticipate the other parties' position – this enables her to put forward the best possible case on behalf of her client.