Tougher financial penalties will be imposed on trusts that fail to meet waiting time standards and commissioners’ freedom to waive penalties will be curbed under NHS England’s draft standard contract for 2015-16, which was published this week.

NHS England proposes to raise waiting times fines by 25 per cent and to make weekly reporting from providers mandatory.

A penalty will be introduced for inconsistency “between weekly and monthly returns”.

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The number of patients waiting for planned treatment has risen, despite a £250m cash injection

The draft contract also includes a proposal to scrap “sanction variation”, which allows commissioners’ discretion to waive penalties in some circumstances.

It states: “We will remove the flexibility for sanction variation which we introduced for 2014-15, as this has not, in practice, had the effect of increasing the transparency of commissioner decisions on application of sanctions.”

The latest figures for waiting times, covering October, show the number of patients waiting more than 18 weeks for planned treatment has increased, despite the government putting £250m into providers to help them
clear their backlogs.

Over the past six months providers were allowed to breach referral to treatment targets to address the growing backlog of patients.

This “managed breach” period ended at the beginning of this month (see box, below).

NHS England has now proposed to increase the penalties by 25 per cent in the coming financial year.

The draft contract states that providers will be fined £500 for each patient that breaches the 90 per cent admitted standard, £125 for any patient still waiting to start treatment at the end of the month below the 92 per cent target, and £125 for breaches of the target involving outpatients.

Commissioners from NHS England and clinical commissioning groups will also be required to publish on their websites details of the fines that should be imposed on providers and whether or not these have been applied,
with the aim of increasing “transparency”.

Commissioners will also be instructed on how to reinvest the money from penalties.

After consulting with providers and commissioners, NHS England noted in its feedback document that there was “recognition that commissioners do not always impose sanctions where they should do, which undermines their purpose”.

There also appears to be a drive to make patients more aware of their rights under the NHS constitution: information on their right to be treated within 18 weeks is to be included in appointment letters.

The contract states: “In respect of consultant led services to which the 18 weeks referral to treatment standard applies, the provider must ensure that the letter to a service user confirming that service user’s first outpatient appointment includes the 18 weeks information.”

CCGs divided on imposing penalties

Commissioners are split on whether to resume imposing fines on trusts that breach elective waiting targets following the end of the national “managed breach”, HSJ has learned.

The managed breach, whereby trusts were authorised to miss waiting targets to enable them to reduce growing waiting lists, ended at the start of this month.

HSJ asked clinical commissioning groups responsible for the 20 providers with the largest backlogs whether they would now impose fines.

Their responses were mixed. Oxfordshire CCG and three CCGs in North East London declined to fine Oxford University Hospitals Trust and Barts Health Trust respectively, while others said they would fine “in line with national guidance”.

A spokeswoman for Newham, Tower Hamlets and Waltham Forest CCGs said: “We have made it absolutely clear that we need to see rapid and continued improvement in treatment times.

“To support this the three CCGs have jointly agreed that we will not be imposing fines on Barts Health [in quarters three and four].”

Others are undecided on whether they will impose fines, including Hammersmith and Fulham CCG - the main commissioner for Imperial College Healthcare Trust, which has the largest backlog in the country.

Some CCGs, including Brighton and Hove, plan to fine providers and reinvest the money back into the provider.

Brighton and Hove CCG chief clinical operating officer Geraldine Hoban said: “We will be applying the terms of the NHS standard contract whilst working with our local hospital trust to explore the best way to reinvest any funds that may arise from penalties back into acute services.”

Central Manchester CCG said that as a “further constructive way of working” it would continue with a “no-penalty” policy for paediatric surgery until March next year “so that the waiting list can be addressed”.

Some commissioners have taken a nuanced approach. Bristol CCG has agreed with University Hospitals Bristol Foundation Trust only to impose fines if the trust misses the incomplete target - that 92 per cent of patients should be waiting less than 18 weeks. They will waive the admitted and non-admitted target fines.

Meanwhile, East Kent Hospitals University Foundation Trust has raised concern over its ability to reduce the backlog of patients waiting for treatment if it is fined for missing targets.

The trust noted in the minutes of the board’s October meeting that its backlog of patients waiting for treatment could be reduced to below 1,000 by March if it could continue to breach the targets. However, two CCGs in the area had asked the trust to meet targets by January according to the minutes.

The minutes state: “This was not in the best interests of patients, nor consistent with delivery of a sustainable service.”