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Government reviews NHS constitution and involves Virgin Care

Virgin CareEarlier this month, with the opposition to the Health and Social Care Act reaching its crescendo, the Department of Health slipped out some news that otherwise would have gained a lot more attention: the government is reviewing the NHS Constitution.

The NHS Constitution lists the rights of patients and the responsibilities of the health service towards its patients and staff. The Health and Social Care Act says that the Secretary of State must “have regard to the NHS Constitution” and it says that the National Commissioning Board (the new super- quango in charge of the NHS) and Clinical Commissioning Groups have a “duty to promote the NHS Constitution”.

The Constitution is clearly important, but as yet there have been no cases where a patient has used the Constitution to change the decisions of an NHS provider. The nearest we have is the court case in August 2010 when the public sector union, UNISON, requested a judicial review of the changes being made to the NHS without public consultation, immediately the NHS white paper was published.

UNISON said: “The NHS constitution enshrines the principle that the public, staff and unions have an absolute right to be consulted.” However, the court said that a judicial review would amount to an "interference of parliamentary proceedings". In this important case, the NHS Constitution proved toothless.

The government’s decision to ask the Future Forum to review the Constitution is an opportunity to strengthen it to give it some legal teeth. This is not what will happen. Health Service Journal report that in addition to health service union representatives and representatives from charities, there will also be “a representative of independent health provider Virgin Care”, which gives a clue about the direction the government wants the changes to move.

The Handbook to the NHS Constitution (PDF) gives a detailed explanation of the constitution and so here are a few of the rights that may be changed.

"You have the right to receive NHS services free of charge, apart from certain limited exceptions sanctioned by Parliament."

"You have the right to expect your local NHS to assess the health requirements of the local community and to commission and put in place the services to meet those needs as considered necessary."

Under the Act the "limited exceptions" will be determined by the Clinical Commissioning Groups, and the CCG will decide what it wants to provide. Indeed, Sir David Nicholson, the Chief Executive of the NHS has said that as far as he is concerned it is acceptable for GPs not to provide the full services needed because patients can "choose" to go elsewhere.

"You have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate for you."

Since the CCG will have the responsibility to balance the books (indeed, according to the Act they must) I doubt if this "right" can be enforced.

"You have the right to make choices about your NHS care and to information to support these choices. The options available to you will develop over time and depend on your individual needs."

This will be "strengthened" to enshrine Any Qualified Provider – the use of non-NHS providers. AQP is the main way that the NHS will be privatised and if AQP is put into the NHS Constitution it will be difficult to remove it at a later date.

"You have the right to make a claim for judicial review if you think you have been directly affected by an unlawful act or decision of an NHS body."

As mentioned above, the UNISON action to get a judicial review was rejected, so it is questionable whether this right has any meaning. It will be interesting to see if this right will be removed.

The government’s pledge to "revitalise these rights and pledges" and "strengthen the NHS Constitution" will be more about changing the constitution to aid marketisation than to look after patients. Indeed, if the constitution was worth the paper it was written on, it would be sacrosanct and the Act would have had to be written within the strictures of the constitution rather than (as we will see) the other way around.

Richard Blogger writes about the NHS and social policy at NHS Vault.

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