Replacing Public Provision with an "NHS Constitution"

The Draft “NHS constitution” published in July [1] , 2008, for consultation until mid-October is a plan conceived by Prime Minister Gordon Brown for a new “NHS constitution” as part of Lord Darzi’s review of the NHS in England.  The fact that it has been enthusiastically endorsed by Lord Darzi and is also said to be supported by other major political parties, the BMA, trade unions and NHS campaigners appears to make it inevitable that its adoption will be justified as the “will of the people”.  But there is nothing of a constitutional nature about this draft “NHS constitution” nor does it safeguard the future of the NHS.  Its notion is to replace the universal public provision of the NHS directly responsible to Parliament with an “NHS constitution” that covers a commissioned competing market of NHS public and private providers.

             Firstly, the core principles of the draft “NHS constitution” almost entirely consist of existing legislation and they add nothing which would enshrine the right of all to health care or which touches on giving that right a guarantee.  For example, the “right” to receive services free of charge does nothing more than reaffirm sections of the NHS Act 2006.  In fact, the draft reaffirms the imposition of prescription charges, dental charges and charges for overseas visitors.

             Secondly, the consultation over the “NHS constitution” is fraudulent.  As far as can be seen, there has been no serious attempt to involve “everyone who pays for, uses or works in the NHS”.  The “constitution” is to be decided by Parliament without involving all the people in discussion, and without any mechanism for ratification by the people, such as a referendum.  Not even a two-thirds majority of a Commons vote is to be required, as is the customary norm for bodies which adopt or change a constitution.  The “constitution” is then to be reviewed every 10 years by Parliament “with consultation” and with the possibility of modifications over shorter periods.  In addition, any Act of Parliament would overrule the “NHS constitution”, and this is specifically mentioned in the draft in referring to NHS charges to patients.  It states: “You have the right to receive NHS services free of charge, apart from certain limited exceptions sanctioned by Parliament.”  In other words, far from being a constitutional right to health care that will never seek payment from the patient and whose resources are a claim on the whole product of society, a right untouchable by parliamentary legislation, it is left to vagaries of the big parties and cabinet-dominated government to decide.

             Back in January before the draft was published, the King’s Fund, a right-wing health think-tank, welcomed the idea provided it “was drafted correctly”.  Niall Dickson, chief executive of the King’s Fund, said: “A constitution could provide real benefits but there are dangers if it is not thought through with care.  A detailed list of patients’ rights could become caught up in endless legal wrangling.  On the other hand, a constitution which simply reiterates core principles or restates existing targets, such as 18-week waiting times, without any enforceable rights for patients would lack credibility.” [2]  

             It is not surprising therefore that this is pretty much how the draft “NHS constitution” turned out, and as the King’s Fund recommended it does not provide a detailed list of patient rights.  Those rights that are already specified are embedded in a complex maze of existing legislation.  The draft does not even go as far as taking up the recommendation to give enforceable rights to limit waiting times.  The document codifies various waiting times for treatment and operations but these remain as they are now as “pledges” to meet the “targets” in the draft “NHS constitution”.

             In putting forward the “NHS constitution” and Darzi reforms as the continuation of Aneurin Bevan’s 1947 founding principles of the NHS, both Darzi and Gordon Brown claim that his mantle falls on them and that the NHS is safe in their hands, as Margaret Thatcher once famously said.  Yet the principles that guided Bevan, regardless of the conditions that favoured the state meeting the needs of the population for universal health care at that time, were more enlightened and more a reflection of the needs of all than the considerations that Blair, Brown and Lord Darzi put forward today in the 21st century.  For example, Bevan argued [3] that no citizen should make any direct contribution to the cost of the health service other than the taxes they already paid on income and goods – the only limit being set by the limits the Exchequer set on the needs of a social health service.  It was not “national insurance” as Gordon Brown deliberately misinforms in his preface to the new edition of In Place of Fear (ibid).  Bevan opposed national insurance because people would have to join and to contribute.  He opposed any notion that foreign visitors should pay because like all they contribute via taxes on purchases as everybody else.  He also directed that hospitals should be prohibited from making appeals, i.e. that it is entirely the state’s responsibility to fund the NHS.  This is a far cry from the notion of New Labour’s Britain that not only charges foreigner visitors and immigrants for health care but is increasingly trying to create the conditions to discriminate in providing health care to people who smoke, or who are obese, etc., or who do not conform to the status quo in treatment and so on.  The draft “NHS constitution” also endorses this approach, giving the public the “responsibilities” for “your own good health”, meaning that you must submit to the values of “healthy weight”, “no smoking”, “participate in health programmes such as vaccination”, etc., as part of your “responsibilities” so that you can receive the so-called “rights” of the NHS constitution.

             One major question, which many people have commented on, is that the government’s and Darzi’s endorsement of the draft “NHS constitution” must be seen in the context the government’s plan for the NHS.  This plan, cynically called “commissioning a patient led NHS” [4] , is a plan for a system of increasingly commissioned private and public providers.  Darzi claims that this “NHS constitution” proposal is its safeguard. He says:

"As the NHS evolves, a wider range of providers, including those from the third and independent sectors are offering NHS-commissioned services.  Patients expect that wherever they receive their NHS-funded treatment, the same values and principles should apply. All organisations are part of an integrated system for the benefit of patients. That is why we will set out the purpose, principles and values for the NHS in the Constitution. We propose that all organisations providing NHS services are obliged by law to take account of the Constitution in their decisions and actions." [5]  

             In a nutshell, this is an endorsement of continuing down the road of turning the NHS into competing NHS Trusts and big business.  Such competition plays a highly destructive role in the wider economy and any plan to extend it into the NHS whilst claiming that the NHS constitution will safeguard the interests of the people must be opposed.  This is one very big dangerous illusion in Darzi's proposal.  Are US and European Health monopolies, even now, let alone once they get a bigger foothold in the polyclinics and services they are bidding for, going to "take account of the constitution in their decisions and actions"?  For those of us that work in the NHS public bodies, even though many are now independent NHS Trusts, it is key to note that the draft “NHS constitution” does not even protect the rights of health workers to their national pay and conditions (A4C).  On the contrary, as if in preparation for the influx of private providers and the erosion of pay and conditions for the public service workers, the draft “NHS constitution” only guarantees “to pay, consistent with the national minimum wage”.  It makes no mention of occupational sick pay, which is presently under attack by NHS Trust employers.  There is no doubt that the NHS constitution will be used to attack the rights of all and not defend them.

             The question of an NHS constitution poses itself in a different manner for health workers and for people in society.  It is a question of word and deed.  It is a question that the people have a claim to have all their needs for health care met as of right.  Health care is a right!  It must not have anything to do with paying the rich and the super rich whilst claiming to be “patient led”.  It is not that the NHS should have a “constitution” that moulds it to the interests of this market competition and thereby jeopardises the needs of the people to receive health care.  It is that the country should have a modern constitution that safeguards the future of the NHS and provides the right to health care with a guarantee without question, as the responsibility of a modern socialised economy.  As a first step, health workers and people must be empowered to make the decisions to restrict and then abolish the involvement of the private sector and take back into public ownership all the assets that have been sold off or franchised to big business, from care of the elderly homes to Private Finance Hospitals, clinics and operating centres.

“NHS Constitution - have your say” (DoH website)

The Department of Health has a website which invites comments from “everyone who pays for, uses or works in the NHS”. The URL is: http://www.nhs.uk/Constitution/Pages/Haveyoursay.aspx

There is also an online questionnaire which can be completed, comments via e-mail can be sent to nhsconstitution@dh.gsi.gov.uk or you can write to 

NHS Constitution
Rm 611a
Richmond House
79 Whitehall
London
SW1A 2NS

Comments should be submitted by 17 October 2008.

For further information about the NHS Constitution visit the
Department of Health consultations website or write to
PO Box 7, London, SE1 6XH or phone 0300 123 1002.