Health Bill [HL]

Amendment 7 would place a duty on the Secretary of State to publish guidance on how bodies and persons covered by the duty to have regard to the NHS Constitution in Clause 2 may demonstrate that they have had regard to it. I understand the intention behind the amendment, seeking as it does to ensure that providers, commissioners and regulators of NHS services are fully aware of the duty on them and how they should fulfil it. However, it is important to give some context to the current intention as it is set out in the Bill. As my noble friend suggested, we do not intend the NHS Constitution to be a top-down initiative from the Department of Health, accompanied by a long list of requirements which have to be met in order to comply with it. The constitution was not developed in a top-down fashion, nor should it be implemented in that way. Indeed, the constitutional advisory forum said as much in its report to the Secretary of State. In order for the constitution to have the positive impact that we wish to see, it needs to be owned by every provider of NHS services. A ““duty to have regard”” is a recognised legal term—although I should point out that I am not a lawyer. It will ensure that the NHS gives the constitution proper consideration. Requiring compliance with the constitution would be inappropriate in two ways. First, it would be legalistic and potentially generate litigation, creating exactly the kind of lawyers’ charter that we debated earlier. Secondly, it would not be possible to require compliance in a legal sense with some parts of the constitution. For example, one of the values in the constitution is compassion. Compassion is clearly at the heart of what the NHS means to people who use it, but how could you go around assessing compliance with that value? Similarly, what would happen with patients’ responsibilities, which we debated at Second Reading? We all want the NHS to inform people about their responsibilities and help them to meet them, but what would it mean if an organisation had to comply with that? Issuing guidance on the department’s interpretation of the duty to have regard to the constitution would be overly prescriptive and would change the nature and the spirit of the constitution. Equally, it would not be possible for the Department of Health to list every possible action that a provider, commissioner or regulator might have to take in order to be in line with the constitution. It would not be possible, or appropriate, to create a one-size-fits-all approach that applies as much to a district general hospital as to a dentist. Guidance could therefore bring with it the risk that bodies providing NHS services rely solely on it and not on their own assessment of what is needed to be able to demonstrate their having had regard to the constitution. That is not to say that the department will provide the NHS with no assistance whatever in meeting its obligations. Indeed, some may know that David Nicholson has already written to all chairs and chief executives in the NHS with examples of how they might fulfil the proposed duty on them—for instance, assessing existing policies and activities such as annual reports, staff or patient surveys to make sure that they are in line with the constitution, and checking against the constitution before publishing new policies or documents. We also have an extensive communications plan in place and we will use this to ensure that the NHS is aware of the duty on it and to help it think through how it will embed the constitution in its practices. It is worth reminding the Committee that much of the constitution brings together policies which already exist. Most of the legal rights to which the noble Earl referred are already in existence and pledges are current Department of Health policy. The vast majority of the NHS should therefore already operate in line with the content of the constitution. I hope the noble Earl agrees that the duty to have regard to the constitution, along with the department’s usual processes, are sufficient to ensure that the NHS pays appropriate attention to the constitution without the need for guidance and more bureaucracy from the centre and that he feels able to withdraw his amendment.