Is the NHS constitution still relevant in the new NHS landscape?

That the NHS constitution has taken a backseat for the coalition government is perhaps not too surprising given that it was a Labour initiative. However, it does appear to sit sympathetically with the nature of the service Andrew Lansley said he is trying to create. So, why has so little been heard from the coalition about the constitution? And will it still be fit for purpose when the reforms are complete?

The constitution was described at the time of its publication as bringing “together in one place for the first time in the history of the NHS, what staff, patients and public can expect from the NHS”. It meant that from 19 January 2010 all providers and commissioners of NHS care, including third sector and independent, were under a new legal obligation, imposed by the Health Act 2009, to have regard to the NHS constitution in all their decisions and actions.

It covers Monitor and the Care Quality Commission, as well as placing a legal duty on the government to renew the constitution every 10 years. It can only be changed with the full involvement of staff, patients and the public. Although it is worth remembering that the handbook to the constitution, which contains much of the detail on matters, such as waiting times, is not subject to the same rigorous process for amendment or change.

Since its publication, many patients and the public have relied on the constitution to argue that, at times, the NHS has failed to act in accordance with its principles. This complaint does not generally interest the media, but it did make the news when Unison used it to label the consultation on the NHS white paper as “nothing more than a paper exercise and a sham”. This followed NHS chief executive Sir David Nicholson’s letter to primary care trusts, strategic health authorities and providers setting out actions he indicated needed to be started prior to the completion of the consultation. Unison’s attempt at a judicial review on this basis failed.

In trying to understand the government’s view of the constitution, it is worth considering the view expressed by Andrew Lansley while shadow health secretary in January 2009. On publication, he slammed the constitution as a “toothless piece of legislation” missing out on key principles, such as a guarantee that public healthcare funds would be dedicated solely to NHS patients. He said Conservative plans for a constitution, published in June 2007, would make a real difference. The Conservatives would “put the NHS at arm’s length from politicians, with a strong constitution”. Mr Lansley argued that Labour’s constitution simply reinforced the health secretary’s powers to “interfere politically in the day-to-day management of the NHS”.

The constitution received only a brief mention in the white paper Liberating the NHS, which indicated that the coalition would uphold and, where appropriate, seek to strengthen it. Indeed, following the Mid Staffordshire Foundation Trust inquiry, the DH published a consultation on amending the constitution to enshrine the rights of whistleblowers and reiterating it will uphold the constitution.

While the Conservatives would appear to have liked the constitution to have more teeth, the coalition is committed to upholding the rights and pledges it expresses. The government also appears willing to provide staff, patients and the public with more bite. Considering initiatives such as any qualified provider and designated services, it will be interesting to see the extent to which the constitution is used to hold providers, including those in the third and independent sectors, to account and potentially challenge their actions and decisions.

This has the potential to make the constitution a useful tool to challenge providers and commissioners of NHS care, especially where they forget the legal obligation to have regard to the constitution in all their decisions and actions. Certainly, Unison already understands the potential benefit of pointing to the constitution in seeking to challenge the government. Although that ultimately failed, deploying it against providers and commissioners of NHS care may prove more fruitful.

Rumours of the demise of the NHS constitution under the coalition may be a little premature. Instead, those subject to it may need to prepare for greater accountability under a reinvigorated constitution, with real bite, in a more competitive NHS landscape.