Policy responses and statements
- Name of organisation:
- Department of Health
- Name of policy document:
- A consultation on the NHS Constitution
- Deadline for response:
- 17 October 2008
Background: The proposed NHS Constitution, marking 60 years of the NHS, is about safeguarding its core principles and values for the next generation, whilst setting a clear direction for the future. It reaffirms rights to NHS services, free of charge and with equal access for all, and it enshrines patient rights to choice and to NICE-approved drugs recommended by clinicians.
It aims to empower both staff and patients, containing clear pledges on the ways in which the NHS will strive to go beyond the stated rights to improve the working environment. It has been developed from the bottom up, with the active engagement of staff, patients and the public. The Department of Health is consulting widely on its contents and how to put it into practice. The draft Constitution and the consultation document are available, along with leaflets and booklets explaining more.
Executive Summary:
The NHS is the world's largest publicly funded health service. The draft NHS Constitution now records in one place what the NHS does, what it stands for and what it should live up to. It sets out principles to guide how all parts of the NHS should act and make decisions.
The NHS Constitution renews the Government's commitment to the enduring principles of the NHS. It confirms again the commitment to a service that is for everyone, paid for out of taxes, based on clinical need rather than an individual's ability to pay, and without discrimination of any kind. It offers, for the first time, a set of NHS-wide values created with the help of patients, the public and staff.
It collects together important rights for both patients and staff - and it sets out a number of pledges that reflect where the NHS should go further than the legal minimum. Each right or pledge is backed up by an explanation, in the 'Handbook to the NHS Constitution', of how it will be enforced and how to seek redress.
The Constitution also sets out responsibilities - how we can all play our part to make the best use of NHS resources.
The Government will be required by law to renew the NHS Constitution every 10 years, with the full involvement of the patients who use the health service, the public who fund it and the staff who work in it. All NHS organisations will be required to take account of the NHS Constitution in the decisions that they make.
The 'Handbook to the NHS Constitution' will be refreshed every 3 years so that it reflects the latest service standards. As well as setting out the legal basis for all the rights contained within the Constitution, it details how the performance management and regulatory regime of the NHS will ensure that the pledges are delivered.
In addition to this consultation document, 2 short guides to the Constitution for patients, the public and staff are also available.
COMMENTS ON
DEPARTMENT OF HEALTH
A CONSULTATION ON THE NHS CONSTITUTION
The Royal College of Physicians of Edinburgh is pleased to respond to the Department of Health on its Consultation on the NHS Constitution.
Q1. Should all NHS bodies and NHS funded organisations be obliged to take account of the NHS constitution?
The College agrees that a Constitution for the NHS in England should apply to all healthcare organisations (including those from the independent and voluntary sectors) providing services to patients in England with public funds.
The College is concerned about the confusion likely for patients living in the UK and who will cross borders into Scotland, Wales and Northern Ireland. It is important that the geographical specificity of this document is made much more clearly than in the current draft.
Q2. Should legislation require the Secretary of State for Health to renew the Constitution every 10 years?
The College agrees that high level aspirations require amendment infrequently, but a regular cycle of review is welcome. It may be useful to have an exception clause triggering earlier review in the event of unexpected or significant change eg directives from Europe.
Q3. Should the Handbook to the NHS Constitution be renewed every 3 years?
Agreed, and the content of the Handbook should be screened carefully to remove or modify any time-limited issues. At present, a number of statements in support of pledges refer to current performance only eg waiting time targets (page 10), and it may be better to cross reference to other documentation that can be kept more up-to-date more readily. The hard copy version should be reprinted regularly, but it should also be possible to maintain a “living” electronic version.
Q4. Are the statement of purpose and the set of principles right? Are there any principles that should be added?
The College is concerned that the responsibilities of the NHS to train healthcare professionals is not explicit within its purposes (see also Q.11 below). This is a major omission, and must be addressed to demonstrate the importance of training to the long term sustainability of high quality care.
The statement of purpose includes the phrase “works at the limits of science”. The College is concerned that this may generate unrealistic expectations that new and emerging technology will be available to all patients immediately - clearly delays with accumulation of evidence, NICE decisions and funding constraints will limit ability to deliver. The College understands that less than 1% of the healthcare delivered can be described in this way.
The College believes it is likely that patients will question why location is not included within the definitions of “comprehensive service, available to all”.
The College is concerned that the term “third sector providers” may not be widely understood.
The commitment in the principles to providing “best value for taxpayers”, whilst understandable, will generate significant cynicism about the ability of the NHS to deliver the rights and pledges in the Constitution.
Q5. Is the list of public and patients’ rights clearly explained and accessible to all sections of the population?
Rights of Access
The College considers that defining “unreasonable grounds” within the right of access to local NHS services will be difficult, is open to different interpretations and may encourage litigation. The Handbook does not make this any clearer. Similarly, the definition of “undue delay” permitting patients to access healthcare elsewhere in Europe is not clarified in the Handbook. Patients may reasonably ask where they might obtain clarification.
Quality of Care
The pledge on a clean and safe environment (Handbook, page 15) reporting the deep clean in 2008 may offer little to enlighten a patient reading the Handbook in 2011 and before the next update. Similarly, specifying that the NHS is on course to halve blood infections “this year” means little if the baseline data is unknown and the Handbook covers a 3 year period. It may be more helpful to include standards that seek year on year improvements.
Nationally approved Treatments
The College is concerned that neither the Constitution nor the Handbook acknowledges the tension between equity of access and local decision taking on drugs and treatments awaiting NICE decisions.
The College seek greater clarity on who will explain the rationale behind a local decision to refuse treatment in the absence of national guidance from NICE. The Constitution makes it clear that patients have the right to a considered decision, but it is unclear who has access to the reasoning behind the decision and who has the responsibility to advise the patient. Also, PCTs will require funding to establish robust mechanisms to deliver fair and reasoned judgements on these cases.
Staff Section
Q6. Is it useful to bring together all of the key public and patients’ rights and pledges?
Yes.
Q7. Do you agree about a new legal right to choice about your NHS care?
It depends on the nature of the choice. The College anticipates some practical difficulties in an absolute right. For example, if all patients in hospital outpatient clinics were to insist on being seen by the most senior doctor, there would be immense practical difficulties with longer waiting times and major disruption to training.
A question asked by patients and missing from the Handbook is related to their perceived “right” to a second opinion, and how best to obtain this without destroying their relationship with the original team. Similarly, hospital clinicians may find it particularly difficult to provide optimum care for some patients but have no choice. The Handbook includes a right to join a GP list unless there are reasonable grounds for refusal, but is silent on the question of care provided by hospital doctors. Some recognition of the need on occasions to refer on to other clinicians might be helpful.
Q8. Is the list of pledges right? Which is most helpful?
Pledge to share letters sent between clinicians with patients (Handbook, page 22). It is unclear how patients will access support to understand or interpret these letters – is this responsibility likely to fall on Primary Care?
Q9. Are the responsibilities and expectations of patients and the public appropriate? Which are most helpful?
The College offers a further responsibility which would be in the best interests of patients, namely, to seek advice on intolerable or unacceptable side effects of treatments before ceasing medication.
Also, the responsibility given to patients to ensure those closest to them are aware of their wishes regarding organ donation could be usefully broadened to include a number of end-of-life issues.
The College suggests that greater emphasis could be given to public responsibility for living a healthy lifestyle, given the burden of avoidable chronic disease and the collective responsibility for NHS resources.
The responsibilities of the NHS to train healthcare professionals should also be accepted by the public with a statement about exposure to students and trainees, always under appropriate supervision.
Q10. Are the mechanisms for complaint and redress clear and sufficient?
Quality of Care
There is advice for patients seeking redress from Primary Care in relation to quality of care (to the PCT) but no equivalent for hospital services. Patients are advised that the regulatory bodies will accept complaints about individual healthcare practitioners, but the GMC is singled out as the only example of a healthcare regulator, and this could encourage disproportionately high number of complaints against hospital doctors before exhausting the local complaints system in the hospital service (Handbook, page 13). Later in the Handbook under “patient and public involvement”, the reverse happens where the source of the right is cited as Good Medical Practice, but the redress section refers to generic regulatory bodies (Handbook, page 25). Patients need to be aware that most healthcare professionals are regulated.
Respect, Consent and Confidentiality
The Handbook advises patients that one means of redress is through a claim for damages. It may be helpful to clarify that this will require litigation against the provider organisation or the individual concerned. Similarly, complaints to the Ombudsman’s Office require the patient to first exhaust local NHS complaints processes, and adding this might prevent inappropriate enquiries to the Ombudsman.
Complaints not upheld
Staff would welcome greater public exoneration when on the receiving end of a vexatious complaint, or when complaints are not upheld.
Q11. Is the list of staff pledges right?
It is unclear why rights and pledges to staff should be included in the main Handbook when there is a separate “Staff Guide”.
Staff “rights” relate in the main to general employment rights rather than specifically to working for the NHS, but this document should still be in the public domain for any members of the wider public to access if so motivated. It need not be in the main Handbook (see above).
The pledges are clear on training and development for staff, but this is missing from the overall purpose of the NHS. The wider public needs to understand the responsibility of all organisations delivering NHS funded care to sustain quality by training the next generation of healthcare professionals.
Q12. Is it useful for the Constitution to set out staff responsibilities? Is the description right?
If the Staff section is to be retained in the main Handbook, why switch the order from “rights followed by pledges” in the patient section to “pledges followed by rights” in the staff section?
It is unclear why the introduction by the Secretary of State is included here but not in the main Handbook
Q13. Do you support the proposal to publish a separate statement of accountability? How can we make this most helpful?
If the Constitution and accompanying Handbook/Guides are intended to educate the public about their rights, information on NHS accountability mechanisms must be easily accessible, ideally with the minimum of a summary in the same publication. Clearly, the fine detail of allocation of resources and local and national accountable officers would be held in other documents in the public domain for reference purposes.
The aspiration to create greater public engagement and accountability for local NHS services is applauded, and the College understands that the Hull PCT membership scheme has potential, providing the membership is representative. However, it risks introducing additional layers of bureaucracy and impeding efficient decision taking. The College recommends that the experiences of PCTs as they experiment with different public accountability methods is shared openly to allow the wider public to assess the impact of this work.
The College believes that many in the NHS seek a period of stability to consolidate change and would welcome a cross party accountability mechanism for the NHS. It would be a brave but welcome political move if something close to this can be agreed.
Q14. Should values be included in the Constitution
Yes, albeit in some respects they repeat messages in the principles.
Q15. Is the level of detail in the Handbook to the NHS Constitution right?
See responses to above questions – points refer to specific sections.
Q16. How can we best ensure that there is widespread awareness of the Constitution among the public, patients and staff?
Produce a short summary to encourage people to read it with easy access to the full versions (on-line or available in hard copy in health centres, libraries etc). Ensure it is not launched with the expectation of many new rights and pledges, but more as a summary to ensure communities understand existing rights etc.
Q17. How do you think implementation of the Constitution should be monitored?
The College is concerned that evaluation effort could measure awareness of the document rather than the information within it. That said, delivery of the rights and pledges within the Constitution should be monitored within pre-existing quality and performance monitoring systems.
Other Comments
Effective engagement with patients and staff requires time and energy, and the College emphasises that NHS managers must take account of this when agreeing job plans with consultants, or many of the promises and pledges in the Constitution will be ineffective.
The College also notes that the consultation document includes clear references to training and support for staff, both within the case for the constitution and the professionalism principle within the Constitution itself. However, in practice, we continue to see pressure on consultants through job plans to limit their wider training responsibilities and raids on training budgets. This contradiction will do little to support staff confidence in the Constitution.
The consultation document makes a number of assertions that are unreferenced eg that the majority of NHS services are delivered to people in the last 2 years of life (page 10). Indeed, the full document is unreferenced, which is disappointing.
The College is also disappointed with the use of “strive” in all pledges as it may suggest to patients that they should not expect this standard at all times, and that the NHS cannot be held to account for failure to deliver; for example, patients may be less than impressed with the NHS striving “to ensure services are provided in a clean and safe environment …”.
The College believes the consultation document is generous to NICE in its description of “highly regarded, transparent processes”, given some of the recent difficulties and time delays with NICE decisions. It may be helpful to add to the pledge on access to treatment the firm intention to improve the timeliness of NICE decisions and address uncertainty for patients and clinicians.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[16 October 2008]
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