Health Bill [HL]

My Lords, I shall speak also to Amendments 7 and 8. I make no apology for returning to a matter that we debated at some length in Grand Committee—that is, the question of why the Bill contains no duty for NHS bodies and those delivering services on behalf of the NHS to have regard to the Handbook to the NHS Constitution. First, what is the handbook meant to be? In Grand Committee, the Minister made it clear that the handbook was the explanatory guide to the constitution. He said: ""It explains what the constitution means in practice, by setting out the law and departmental policy that underpin each right and pledge in the constitution". —[Official Report, 23/2/09; GC 21.]" That was absolutely as I understood the position. However, despite that, and despite the duty in the Bill for NHS bodies to have regard to the constitution, the Minister made it equally clear that it was not appropriate to extend that duty to the handbook. When comparing the status of the constitution and the handbook, the analogy that he drew was that between the Bill and the Explanatory Notes that go with it. However, the Explanatory Notes have no force in law; the Bill, when enacted, does. I am still troubled by this. In the first place, I am doubtful whether the analogy the Minister drew actually holds water. The handbook is a statutory document; it is mentioned in the Bill, unlike the Explanatory Notes. I take us back to the departmental website. The part of the website devoted to the NHS Constitution makes it clear that the constitution consists of—I remind the House of those words—not only the constitution itself, but also the handbook. It also includes the Statement of NHS Accountability as well, but I shall not return to that issue. If we look at the way this Bill is constructed, we should take due note of the heading to Clause 1: "NHS Constitution". Clause 1 introduces and embraces not only the constitution itself but also the handbook. I took that bracketing together to be an implicit acknowledgement that the two publications were legally and practicably inseparable for the purposes of interpreting what the NHS Constitution actually was. The Minister’s reply indicated however that the handbook was not part of the constitution. He emphasised that, ""It is not a document that we intend should be legally taken account of by providers of NHS care".—[Official Report, 23/2/09; col. GC 21.]" If that really is so, we are left wondering what patients and staff are meant to think when they read it. It is explanatory, but at the same time, they do not have to have regard to it. If they do not have to have regard to it, they can ignore it, because nothing will happen to them if they do. Indeed, if they can ignore it, they do not even need to read it. That is the construction which people may well put on the Government’s position on this matter. The Minister put forward another reason in Grand Committee why it was not appropriate to create a duty to have regard to the handbook. He said that, ""the handbook is primarily an explanatory guide for patients, not guidance for the NHS".—[Official Report, 23/2/09; col. GC 22.]" I found that very odd. It is certainly true that the first part of the handbook is addressed to "you", by which is clearly meant, "you, the patient". But that is no less true of the constitution itself. The whole of the second section of the constitution is addressed to "you", which means everyone who uses the NHS. However, that fact does not prevent there being a duty placed on NHS bodies to have regard to the constitution. Again, the obvious question is, why not also the handbook? Equally, the Minister said in our earlier debate, and he may well repeat it today, that, ""the handbook itself does not create policy or law".—[Official Report, 23/2/09; col. GC 21.]" The implication is that its status is not of a kind that would put it on a par with the constitution. I accept that it does not create policy or law, but as I understand it, the constitution itself does not add to people’s legal rights; it is a declaratory document, yet there is a duty to have regard to it. We should perhaps bear in mind the handbook’s opening sentence. ""The Handbook is designed to give NHS staff and patients all the information they need about the NHS Constitution for England"." Indeed, it is designed for rather more than that, because, as the noble Baroness, Lady Barker, pointed out in Grand Committee, there are sections of the handbook which qualify or place limits on the open-ended statements made in the constitution. A very good example, which the noble Baroness chose, was the right, ""to go to other European Economic Area countries or Switzerland for treatment which would be available to you through your NHS commissioner".—[Official Report, 23/2/09; col. GC 19.]" It is only when you read the handbook that you discover that the right can only be exercised at the discretion of the Secretary of State. The constitution sets out the right to make choices about your NHS care, but it is only when you read the handbook that you are told about the raft of exceptions to that right. The handbook spells out exceptions to the right of access to your own health records and exceptions to the right to receive clinically indicated drugs and treatments recommended by the National Institute for Clinical Excellence. In a very real sense, a duty to have regard to the constitution which is not at the same time accompanied by a duty to have regard to the handbook risks, at best, confusion, and, at worst, downright contradiction. I must press the Minister further on this point. How is it that a document which is to be treated, on the one hand, as an integral part of the constitution is at one and the same time not part of it? How can it make sense for there to be a duty to have regard to the 12-page document called the NHS Constitution, and yet for there not to be a duty to have regard to the fuller document which is meant to tell everyone how the constitution should be interpreted? I beg to move.