What does ‘strengthening’ the NHS Constitution actually mean?

Jeremy Taylor, Chief Executive of National Voices, asks what the impact would be if the NHS Constitution had teeth

Andrew Lansley asked the Future Forum to advise him how to strengthen the NHS Constitution – advice that will now go to Jeremy Hunt. But what does it actually mean, to ‘strengthen’ the NHS Constitution? The challenge is an interesting one and there is no single answer.

It is natural to start with the content of the Constitution and ask if it is fit for purpose three years – and a world away – from its launch. Is it understandable? Does it need updating? Are the rights strong enough? Should pledges be turned into rights? There is no end to the possibilities for revising the text (some of which would require primary legislation).

But let’s not get carried away with drafting. Perhaps the most salient feature of the Constitution is how little known it is. I chaired a fascinating session with voluntary organisations a few weeks ago. They know the Constitution very well and are great champions of the values and principles that lie at its heart.

People have sometimes said that the Constitution amounts to ‘fine words but no teeth’. What would a world look like in which the Constitution had teeth?

Did we talk about the content? Hardly. The meat of the discussion was how to raise the profile of the Constitution and find ways for it to be used with impact by staff, patients, service users and families. We heard the story of one charity that in the early days of the Constitution disseminated copies enthusiastically to local activists and service users. That was until people came back saying, “Er, how do we actually use it to change anything?” Enthusiasm waned.

It seems to me that, apart from questions of content, there are three vital ingredients for strengthening the Constitution:

  • visibility: making it better known
  • traction: making it a force for driving improvements and sustaining high standards
  • challenge: making it a tool that people can use to challenge health and social care to do better and, where necessary, to seek redress when things go wrong.

In this context, the new statutory duty to ‘promote’ the NHS Constitution may turn out to be very important. This duty will lie with the NHS Commissioning Board and with the new clinical commissioning groups. How should it be carried out? It would be possible for the Commissioning Board to put copies of the Constitution in every surgery and clinic in the land and to devise some kind of performance management framework for assessing compliance with it. How effective would that be? I wonder.

Another approach would be to focus on the values and principles of the Constitution and ensure that these are embedded in the way that health and care professionals are recruited, trained, developed and held to account.

People have sometimes said that the Constitution amounts to ‘fine words but no teeth’. What would a world look like in which the Constitution had teeth? It might have a radically redesigned system for inviting feedback, addressing concerns and handling complaints: one which was easy to access, easy to use, responsive, humane, cathartic and dedicated to learning from people’s experiences to improve care.

If that is one thing that comes out of the review of the NHS Constitution, I will be happy.

What do you think?

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3 Responses to What does ‘strengthening’ the NHS Constitution actually mean?

  1. Federico Moscogiuri says:

    This is a very interesting, and important, challenge. Below are my personal views on this.

    Embedding the principles of the NHS Constitution in everyday practice is indeed important. However, I would argue that this needs to happen anyway, and I believe there are stronger drivers (financial, political, economic) already out there for improving, say, the handling of complaints systems than the NHS Constitution. Not that the Constitution is only about complaints or acting on patient feedback: it is about much more than that. It is about the entire raison d’etre of the NHS.

    Giving a document “teeth” is often understood in terms of enforceability through the courts, or similar. While this is a legitimate and often important dimension, we should not over-legalise the NHS Constitution, whose strength rests in part, I feel, in being able to be absorbed through osmosis as opposed to hard regulation, and we must have at least as much regard for the “spirit” of the Constitution as to the letter of it. No-one, I’m sure, would like to see the Constitution become a de facto tool for litigation. What it does need are clear measures for
    a) application in practice,
    b) redress against egregious failures, and
    c) “policing” its implementation

    This is where the main gaps are. As you illustrated, Jeremy, just being “aware” of the Constitution means little if there are no specific provisions against it. So, taking each of the above in turn:

    a) Application in practice

    This is all about turning the NHS Constitution into action.

    All parts of the NHS should be encouraged/required to set targets against key/specific provisions in the Constitution, make these public (eg in surgeries, on the web) and demonstrate what they’re doing to meet them, in a “The NHS Constitution says; we did” kind of way – and giving patients the opportunity to input and provide feedback along the way.

    This should include private providers, who are increasingly delivering a significant amount of services. It should, perhaps, be an explicit requirement of all NHS contracts.

    A local or regional NHS Constitution Champion, as originally suggested, would have a key role in helping to oversee this as well as provide recourse to redress, similarly to the role of an ombudsman. This could even be a voluntary role, appointed by LHWBBs, and with a seat on LHWBBs.

    The NHS Constitution, and what local CCGs and NHS providers are doing about it, should be a standing item on all LHWBB meeting agendas.

    b) Redress

    I’m not sure that we need new measures for redress, or that the NHS Constitution should spell this out in great detail. Channels for redress, both within the NHS and beyond, are required with or without an NHS Constitution, and they need to be functioning well. What the NHS Constitution can do is not add another layer of legality but clearly highlight the importance of redress, and clearly illustrate to patients what the various channels and options are – including the Constitution Champion.

    c) “Policing” the NHS Constitution

    I think the answer to this lies largely in how the new NHS structures are supposed to “police” or oversee anything: whatever the mechanisms for this to happen, be they through the LHWBBs, the CCGs, the CQC, Healthwatch, etc., these same mechanisms need to explicitly reference and take full account of the NHS Constitution in their day-to-day work. But what they measure goes back to whatever measures each self-governing part of the NHS is going to set for itself in terms of implement key provisions of the NHS.

    In the new system, which is meant to be based very much on peer review, patient involvement and local accountability as opposed to hard-and-fast directives or scrutiny mechanisms from above, peer review, patient involvement and local accountability will ultimately need to be the ways in which the NHS Constitution is kept alive and, indeed, “policed”.

    It is perhaps useful, as an aside, to draw a parallel with the Universal Declaration of Human Rights, another eminently inspirational and fundamentally aspirational document which is often criticised for being all “wise words and no teeth”. The Universal Declaration on its own means little without some means of articulating what it means to the man in the street, and of spelling out how it is going to be implemented in practice. So along came the two Covenants, each with their own international standing committee, which require UN member states to submit regular progress reports. In practice, however, their power still lies very much in the realm of peer pressure and public shaming that is sometimes attracted by states which spectacularly fail to respect or uphold the rights in question. At a “lower” level you have instruments like the European Convention of Human Rights, which actually has legal standing and is accompanied by a court which is accessible to individuals (once all internal routes have been exhausted). Even then, however, national legislation is required to bring the Convention into force in each national legislature – in the case of the UK, this is the Human Rights Act. What this illustrates is that there is always a large gulf between the highest aspirations and a practical, meaningful application of them – but this gulf need not be insurmountable, if the will exists. The other key point in this is that the clear, practical provisions which are required to make this happen need to be broadly determined and policed locally, but with recourse to a higher level of oversight and redress, as the European Convention provides with respect to the Human Rights Act. So with the NHS Constitution.

  2. Jeremy Taylor says:

    Thanks, Federico. A very interesting response. I like the idea of Constitution champions and your parallel with the UN Declaration of Human Rights

  3. M. Bernard says:

    Sounds fine!! Soon everyone who works in the NHS will be a “Champion” of one thing or another. We have Dementia Champions, Energy Conservation Champions Uncle Tom Cobly and All Champions.
    It is not “Champions” that are needed but Managers/Supervisors who have had training in the management of staff and who lead from the front by example. The Constitution should also ensure that ALL staff are not just Responsible but are also ACCOUNTABLE FOR THEIR ACTIONS.

    I feel sure that if this were the case the £MILLIONS that are spent paying out on claims against the NHS would fall dramatically and money saved could be used to improve Patient Care.

    There are some dedicated people in the NHS who do a really good job but there are many who are just there for the ride and let the side down.
    Proper Training and the implementation of Accountability would cure a lot of the present malaise.