The NHS Constitution

• Abstract
• Characteristics of this policy
• Purpose and process analysis
• Expected outcome
• References

Abstract

In January 2009, the Government launched the NHS Constitution, which it claims is the first of its kind in the world. The Constitution outlines the rights and responsibilities of patients towards the NHS and towards their own health, and also commits the Government to equip NHS staff with the tools, training and support that they require to deliver a high quality health service. The Constitution is integral to the Government's NHS quality drive, and this report will provide a summary of it.

Recent developments

In the summer of 2008, in line with the recommendations of the Darzi Review, the Government undertook a public consultation exercise on establishing an NHS Constitution. The consultation involved staff and patients, and was overseen by the Strategic Health Authorities and a group of independent experts. Following the consultation, the NHS Constitution was launched in January 2009, and contains three main 'types' of responsibility; namely, responsibilities towards oneself, responsibilities towards others, and responsibilities towards the health system. Specifically, these responsibilities, which apply to all members of the public, are (Schmidt, 2009):

1. You should recognise that you can make a significant contribution to your own, and your family's, good health and well-being, and take some personal responsibility for it.
2. You should register with a GP practice.
3. You should treat NHS staff and other patients with respect and recognise that causing a nuisance on NHS premises could result in prosecution.
4. You should provide accurate information about your health, condition and status.
5. You should keep appointments, or cancel within reasonable time.
6. You should follow the course of treatment which you have agreed.
7. You should participate in important public health programmes, such as vaccination.
8. You should ensure that those closest to you are aware of your wishes about organ donation.
9. You should give feedback - both positive and negative - about the treatment and care you have received, including any adverse reactions you may have had.

The list of about 25 rights embedded in the Constitution include a right to make choices and receive information about one's health care, a right of entitlement to drugs and treatments that have been recommended by NICE if one's doctor approves them as appropriate, and a right to expect local decisions on the funding of drugs and treatments not assessed by NICE to be made rationally with due consideration of available evidence. 

Degree of Innovation	traditional		innovative
Degree of Controversy	consensual		highly controversial
Structural or Systemic Impact	marginal		fundamental
Public Visibility	very low		very high
Transferability	strongly system-dependent		system-neutral
current    previous

Constitutions have their advantages, in making people more aware of what they can expect from others, and what can be expected of them. They can also have their disadvantages, in entrenching features that we might not sensibly wish to become entrenched. Utilimately, I don't think the NHS Constitution will make much of a difference, unless it becomes less aspirational and more binding.

Purpose and process analysis

Current Process Stages

	Idea	Pilot	Policy Paper	Legislation	Implementation	Evaluation	Change
Implemented in this survey?

Initiators of idea/main actors

• Government

• Providers

• Civil Society

Stakeholder positions

During the consultation exercise, the responsibilities outlined in the Constitution were generally supported, although some worried that those measures that were not enforced would lack teeth, whilst others worried about the possible implications of enforcement (i.e. of forcing people to do things that they don't really want to do, which raises concerns of coercion, and of possibly deterring people from using the services that they really need). In the final, released Constitution, perhaps as a consequence of the latter concern above, most of the responsibilities are aspirational and are not therefore legally binding, although considerations around the issue of 'conditionality' (i.e. that the person's 'rights' are to some extent conditional on their level of 'responsbility') are not ruled out for the future. There is, however, a 'broad' danger with introducing Constitutions, in that certain things that are undesirable, or that become undesirable over time, become entrenched, and are thus very difficult to change (the US Constitution vis-a-vis healthcare reform presents a very good example of this phenomenon). Overall, the Constitution has been accepted by the important 'players', although how much actual influence and effect it has remain to be seen. 

Actors and positions

Government
Central Government	very supportive		strongly opposed
Providers
Royal College of GPs	very supportive		strongly opposed
The NHS Chief Executive	very supportive		strongly opposed
Civil Society
The Patients Forum	very supportive		strongly opposed
current    previous

Influences in policy making and legislation

The NHS Constitution was launched after a public consultation exercise. It is now 'in play', although much of it, particularly with respect to its 'responsibilities' segment, remains aspirational. With respect to the Constitution's stated rights, patients can presumably insist on these (i.e. on receiving NICE's recommended interventions, if the patient's doctor thinks them appropriate for the patient), if the patient is aware of these rights.

Actors and influence

Government
Central Government	very strong		none
Providers
Royal College of GPs	very strong		none
The NHS Chief Executive	very strong		none
Civil Society
The Patients Forum	very strong		none
current    previous

Positions and Influences at a glance

Adoption and implementation

Patients and the public appear to be the key players if the Constitution is to be acted upon. I've already commented a little on the possible effect of the Constitution, and I'll comment a little more below. The public consultation exercise, with input from NHS staff, patients, independent experts etc., was necessary to reach agreement of what would be acceptable for the content of the Constitution. At the moment, particularly because most of the responsibilities are 'merely' aspirational, I cannot see that there have been signifcant, clear losers in the process, although many would, I suspect, have preferred the Government to emphasise improving the 'environment' (i.e. the broader socio-economic determinants of health) in the Constitution, rather than emphasising the importance of individual responsibility.

Monitoring and evaluation

I suspect that some attempt will be made to monitor the patient rights embedded in the Constitution, but it is not clear how or whether this will be done.

Expected outcome

I would be a little surprised if the responsibilities have a huge effect, not least because most of them are in and of themselves non-binding. Rudolf Klein (2008) has written that their effect will depend on how they are implemented in policy and practice (on which we will have to wait and see), and Iona Heath (2008), who is a strong supporter of changing the broader social determinants of health, has criticised the Constitution for largely dealing in platitudes. It may have more of an effect if it is given greater teeth in the future, such as moving towards conditionality, as noted above.

I am also a little nervous about making patient rights too explicit, because this might lead to more legal action in the NHS, which is already subject to substantial profiteering by some law firms. So, if rights are to be strenghened and made more explicit (which does admittedly have its benefits of course, in, for example, disincentivsing complacency in the NHS), some new groundrules for legal challenges to the NHS (such as a maximum percentage 'commission' payable to lawyers in successful actions), might be advisable. This of course all depends on whether patients are even aware of their rights, which is highly debatable.

Impact of this policy

Quality of Health Care Services	marginal		fundamental
Level of Equity	system less equitable		system more equitable
Cost Efficiency	very low		very high
current    previous

Too early to tell, but I don't think in its current form it will have much long term effect on any dimension.

References

Sources of Information

Department of Health. Historic NHS constitution signed. 26 January 2009. www.dh.gov.uk/en/News/Recentstories/DH_093466

Department of Health. The NHS Constitution: securing the NHS today for generations to come. January 2009. www.dh.gov.uk/nhsconstitution.

Harald Schmidt (2009). "Personal responsibility in the NHS Constitution and the social determinants of health approach: competitive or complementary?" Journal of Health Economics, Policy and Law 4: 129-138.

Iona Heath (2008). "The emperor's new constitution." BMJ 337: 787.

Rudolf Klein (2008). "Does the NHS really need a constitution?" BMJ 336: 804.

Reform formerly reported in

Promoting quality in the NHS Process Stages: Implementation, Legislation

Author/s and/or contributors to this survey

Oliver, Adam

Suggested citation for this online article

Oliver, Adam. "The NHS Constitution". Health Policy Monitor, April 2009. Available at http://www.hpm.org/survey/uk/a13/2