The proposal tucked away in the Darzi report for an NHS constitution could be one of the most historic elements of the next stage review, limiting the health secretary's power and guaranteeing patient rights
As the dust settles after the next stage review and civil servants get down to the business of implementing the multitude of ideas and initiatives, major and minor, that were scattered through Lord Darzi's report, how much of it will really matter? What are the issues of substance that might make a real difference to the way the NHS works and for which Darzi might be remembered in five or 10 years?
Unlikely though it may seem, I would argue that one of the most interesting and far-reaching ideas in his report is the proposed NHS constitution.
Tucked away in chapter seven of the report itself and launched in draft form in a separate consultation document, the NHS constitution got a sceptical reception from the press. In The Times it was mocked as a vague and unenforceable statement of generalities, while The Economist thought it was an exercise in window dressing which largely restated rights and duties that already existed. Both miss the point completely.
For 60 years, the NHS has existed in a legal vacuum. Its founding legislation gave the secretary of state enormous and largely unfettered discretion to do whatever he or she liked, which continues in large measure to this day. The provision of services, organisation of funding, distribution of responsibilities and accountability of organisations are all in his or her hands. On the rare occasions when they have been asked to do so, the courts have been profoundly reluctant to intervene in these decisions. It is a benign (or not so benign) dictatorship in which everything rests on the will or whim of the person at the top. The governance of the NHS has more in common with that of a medieval city state than with the arrangements in place in modern healthcare systems in other European countries.
There are, of course, some advantages to such centralisation of power. The NHS was for many years run like one organisation, with most of the decisions that mattered being taken at the top, in the Department of Health. That was where wage rates were set, purchasing decisions were made, policies were determined, appointments to senior posts controlled and so on. Local NHS organisations were no more able to exercise autonomy than an ASDA supermarket is able to do.
The idea of one NHS organisation taking another to court to sort out a dispute was ridiculed because it would essentially be like the secretary of state suing himself. For that reason, so-called contracts between purchasers and providers in the NHS internal market had no real legal force. Outside observers, especially from the US, admired the ability of the NHS to take action and drive change, often on a grand scale, through strong and determined direction from the top on issues such as patient safety and access to care. Others were more sceptical, believing the NHS to be just too large to be run effectively from Whitehall and arguing that central directives and targets were crude and often ineffective tools for change.
Need for clarity
The downsides of the NHS autocracy outweigh any benefits. For patients, the main problem is that their entitlements to NHS care have never been properly defined, or backed by legal guarantees. They get the healthcare the local NHS happens to offer and there is no clarity about what is included or excluded. No one would buy a house insurance policy which said that if your house burned down, the insurer might or might not cover some or all of your losses, depending on the needs of other people with insurance at the time - so why should they put up with that from their healthcare system?
For communities, the problem has been that important NHS decisions have often been taken without proper consultation, transparency or legitimacy. Service changes that mean a lot to local people, including hospital closures, have been forced through on technocratic grounds, with the secretary of state rubber stamping decisions taken by local NHS boards.
For NHS organisations, the biggest problem has been that they are simply creations of the DH, wholly subject to the powers of direction of the secretary of state. They have no autonomy and no separate legal identity worth the name and can be created or dissolved more or less at will. Successive holders of the office have done just that, reorganising, merging, creating and abolishing organisations with bewildering speed and little thought.
For private healthcare providers, working in and with the NHS, the problem has been that the absence of normal legal and contractual frameworks and the extreme centralisation of power in the DH make doing business with the NHS a bit like dealing with a third world dictatorship. The legal rules of the game are not defined properly and can be changed at will. The commercial risks are considerable and private providers can only be tempted in by the offer of big profits or by special "sweetheart" deals.
So the NHS needs a constitution. Indeed, it is at least two or three decades overdue. Some of this government's recent reforms - the creation of the National Institute for Health and Clinical Excellence, the greater statutory autonomy of foundation trusts, the growing involvement of the private sector in NHS provision, the passing of the Human Rights Act and so on - have made the NHS much less like a single organisation and more like a system made up of lots of different entities, private and public. The need for a clear, enforceable set of rules about how the system works has never been greater.
The NHS constitution should provide a simple and coherent statutory framework, set out in legislation and enforceable by the courts, which outlines the rights, powers and duties of five key actors or groups: individual patients; communities and their representatives (including local authorities and patient groups); NHS organisations; private healthcare organisations working within the NHS; and the DH itself and national agencies such as NICE, the Healthcare Commission, Monitor and the NHS Institute for Innovation and Improvement. Some of these groups already have rights established in law, at least to some degree, but they often embed or reinforce the overweening power of the centre. For example, local authorities have a statutory right to scrutinise the work of NHS organisations and to call in certain decisions for review by the secretary of state - who was responsible for the decisions in the first place.
For patients, the constitution should clearly set out their rights to treatment within defined timescales, to independent medical advice, to information about themselves and about services, to be treated with dignity and respect and so on. The draft constitution makes a fair stab at this, though it could do more, particularly to be explicit about access issues and to give patients a right to independent arbitration when there is disagreement.
But the draft does not mention communities at all, whereas it should clearly define a right to access to information, to be consulted on service changes for a wide range of community groups -not just local authorities - and to bring in independent review where proposed changes do not have community support.
There is nothing at all in the draft constitution about our third and fourth groups: NHS organisations and private healthcare organisations. Here, there is a need for a statutory framework which gives them a level playing field in terms of their autonomy, access to and control over finances and resources, collaboration and co-operation, and oversight of performance and accountability.
Nor does the draft say anything about the final group - the DH and national agencies such as NICE, the NHS Institute, the Healthcare Commission and Monitor. It should make it clear what the department can and cannot do (for example, how it will replace the universal powers of direction of the secretary of state with a properly specified and focused set of powers and duties) and define the terms of operation and powers of intervention for regulators and other agencies.
So would an NHS constitution like this just make work for idle lawyers? That fear is much overplayed. Some things would probably end up being settled in court, especially to begin with as people began to test out the legal rights and duties it imposed and the courts clarified any confusion or ambiguities.
That might not be a bad thing, as nothing concentrates the mind better than the prospect of having to defend the decisions you have made or the way you made them before a judge. However, the real power of a statutory NHS constitution would be in the way it would drive behaviours long before anyone went to court.
For example, it would constrain and control the pressures on the DH to intervene endlessly in the operational detail of healthcare provision, and make it easier for others to resist such interventions effectively. It would give NHS and private healthcare providers clarity and certainty about key issues, including the ownership of assets, contractual relationships and the resolution of disputes.
As it stands, the draft NHS constitution is a useful start, but it is a long way from providing the clarity and certainty about rules, rights and duties that is needed.
It remains to be seen whether the current government, beleaguered as it is, has the stomach or the vision to think more radically about the statutory framework for healthcare in England.
On the whole, monarchs and dictators rarely give up power voluntarily and it is hard to imagine DH politicians and bureaucrats ceding almost total control of the NHS without a fight.
It may be easier for outsiders, such as the current opposition, to see that a proper NHS constitution would not only protect the interests of patients, communities and healthcare organisations better, but that it would also make the politics of the NHS less toxic for a future health secretary.