The NHS Constitution was first published on 21st January 2009. It was one of a number of recommendations in Lord Darzi’s report ‘High Quality Care for All’ which was published on the 60th anniversary of the NHS and set out a ten-year plan to provide the highest quality of care and service for patients in England.
The NHS Constitution brings together in one place for the first time in the history of the NHS, what staff, patients and public can expect from the NHS. As well as capturing the ‘Purpose’, ‘Principles’ and ‘Values’ of the NHS, the Constitution brings together a number of ‘Rights’, ‘Pledges’ and ‘Responsibilities’ for staff and patients alike. These Rights and Responsibilities arose from extensive discussions and consultations with staff, patients and public. The “Rights” are enshrined in current law and are therefore legally binding. However the NHS Constitution just summarises existing legal rights, and does not does create any new rights. It is therefore considered to be a ‘declaratory document’.
All NHS bodies, and private and third-sector providers supplying NHS services in England are required by law to take account of the Constitution in their decisions and actions. The Government has a legal duty to renew the Constitution every 10 years. No Government will be is able to change the Constitution, without the full involvement of staff, patients and the public. Recently, The Health and Social Care Act 2012 has strengthened the legal foundation of the NHS Constitution, and placed new duties on the NHS Commissioning Board and Clinical Commissioning Groups to promote it. The 2012 Act also extended the existing duty to have regard to the NHS Constitution (see below) to the Secretary of State for Health and to the new bodies established by the Act.
To date, the original 2009 Constitution has been subject to amendments on two occasions, designed to increase its scope (in March 2012 and March 2012). Further amendments are being proposed at present (between November 2012 and February 2013), with the aim of introducing these in April 2013.
The current Constitution can be obtained from the Department of Health website. Versions in a range of languages are also available, as is a Handbook to the Constitution, which acts as a guide to patients’ rights and pledges; responsibilities of patients and the public and staff; and staff rights and NHS pledges to its staff. At the back of the Handbook is an appendix, which outlines the legal source for both the patient and staff rights in the NHS Constitution.
The Handbook states that if a patient thinks that a right has not been upheld or the NHS is not meeting its commitments, they should, in the first instance, speak to their clinician or their “local NHS” (currently defined as their PCT) to see if their concern can be resolved immediately. The Handbook also refers to the existing forms of resolving concerns, including PALS, and the complaints process (including the Health Service Ombudsman), but states that “In the last resort, patients and staff can seek legal redress if they feel that NHS organisations have infringed the legal rights described in the NHS Constitution. For patients and the public, this could be in the form of a judicial review of the process by which an NHS organisation has reached a decision”.
The Trust’s compliance with the NHS Constitution
The most important test of whether the Trust ‘has regard to’ the NHS Constitution is whether the Trust upholds the Rights and Pledges contained therein. There is a range of different sources of information available to judge this, including patient and staff surveys, Patient Reported Outcome Measures, numbers and details of complaints received (and the management of responses), inspections by the Care Quality Commission and other bodies etc. At local level, relevant information would also include internal performance reports and assurance reports to the Board and other Trust committees. However, as also recognised by the NHS Future Forum, in general, such information is either limited in scope or only partially covers the content of the NHS Constitution. However, with that caveat in mind, the Trust has attempted to make a high-level judgement regarding the Trust’s compliance with the NHS Constitution’s Rights and Pledges, and in December 2012, the Trust Board received a report exploring this in more detail.