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The constitution says that the NHS commits,

What is it sufficient for a trust to do to have regard to this pledge? If it is found that a hospital environment is not clean and safe, is it nevertheless possible for that hospital to be acquitted of the charge that it failed to have regard to the constitution? What would having regard to entail in this situation?

I think back to what the Minister said in his final report of last June, High Quality Care for All. Among other things, he said:

“For the Constitution to be meaningful it must have bite, with means for enforcement and redress, not just warm words or aspirations”.

How precisely does the constitution have the bite that the noble Lord referred to, and where are the means for enforcement and redress? The answer surely has to be that the means of enforcement and redress against the NHS are unchanged from what they always have been. If so, one is led to the rather sad conclusion that, in this sense at least, the constitution takes one no further forward. It does not deliver on what the noble Lord explicitly demanded of it. One might say, “Oh constitution, where is thy bite? Oh handbook, where is thy victory?”. All this points to something that has been highlighted by a number of commentators, which is that if we want the NHS Constitution to be effective and a force for good, people in the health service need to know that they have to perform in line with it as if their jobs depended upon doing so. It does not appear that anybody’s job will depend upon how well or badly they do in this sense. There are no penalties for failure. It is, I am afraid, more a case of warm words and aspirations than anything more biting.

We need to hear from the Minister why he believes that “to have regard to” is a sufficiently robust form of words for the Bill and what, in practice, are the tests that will determine whether the duty to have regard to has been adhered to. I beg to move.

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Lord Warner: I cannot resist rising on this issue. Having been on the receiving end of many lectures over the years from the noble Earl, Lord Howe, about how the Government have created bureaucracy in the NHS, this looks like a crackingly good way of having returns from NHS authorities to show how they have had regard to adherence to the constitution and the handbook. I can now see the returns flooding into a future Government.

The noble Earl has rather overlooked the fact that we now have a new regulatory system in place under the leadership of the noble Baroness, Lady Young, which requires registration and a lot of information on the performance of trusts. We have strategic health authorities monitoring the performance of trusts. We have a complaints procedure with ultimately an ombudsman who is able to respond to those complaints, which will no doubt come in on failure to adhere to the constitution and the handbook. Moreover, we have a parliamentary system in which a Health Select Committee and others can hold to account both Ministers and civil servants on how the work is discharged. How many more systems do we need in this area? We have gone a long way to ensure that people are held to account. This looks to me like a bit of unnecessary bureaucracy.

Baroness Tonge: The spirit has moved me to respond after that speech by the noble Lord, Lord Warner. He has enunciated in a couple of minutes precisely what is wrong with the National Health Service, if anything is wrong with it. People I meet and people I know who work in the health service think that it is a very good service, but that it is overly bureaucratised. So many bodies, committees, oversights, reviews, reports, audits and quangos—do not forget them—all chip in and interfere with what people are doing. I welcome what the noble Lord has just said.

I declare an interest. I no longer work in the health service, but my husband, who I live with, still does, despite retiring 18 months ago at the age of 65. As there is a shortage in his specialty, he has gone back to work. If he were here he would say, “A plague on all your bureaucracy, just let us get on with the job”.

5.15 pm

Lord Campbell-Savours: I shall be equally brief and support the contribution of the two previous speakers. Perhaps I may slightly rephrase the amendment so that we can perhaps more easily understand what the noble Earl is driving at. The amendment states:

“The Secretary of State shall publish guidance on the manner in which bodies and persons”,

and so on. What the noble Earl is really saying is that central government shall publish guidance on the manner in which hospitals demonstrate that they have regard to the NHS Constitution. He is asking for a sort of bureaucratic, centralist determination of the policies to be pursued by hospital trusts to demonstrate the way that they apply the constitution. That is almost the very reverse of the devolution that we are seeking to introduce in the National Health Service. I cannot believe that that is what the noble Earl really believes.

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Lord Darzi of Denham: 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

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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.

Earl Howe: The amendment has nothing to do with returns to Richmond House or additional bureaucracy. I was quite astonished to hear the contributions from noble Lords opposite that that is the effect they thought I was after. It is a way of addressing the cry that is bound to go up from NHS staff of, “What on earth are we supposed to do? How are we supposed to obey the law that has been worded in this way? What do these words mean in practice? What force do they have?”. I am none the wiser following the Minister’s reply.

For example, if I were in a charge of a trust or a PCT, I would worry what the phrase “a comprehensive health service” means. I could have regard to the constitution in my own way but I might not be certain that I was doing so properly. It is not a question of listing every possible action that people need to take; it is a question of making clear what deliberative processes NHS staff should go through and the kinds of considerations that need to be borne in mind. I am left wondering whether the constitution has the kind of bite the Minister hopes it will have or whether it is, when all is said and done, a set of warm words. That is the point at issue.

I fear I shall have to look at the matter again and see whether I can express my concern in a different way prior to the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 2 agreed.

Amendment 8 not moved.

Clause 3: Availability, review and revision of NHS Constitution

Amendment 9

Moved by Earl Howe

9: Clause 3, page 3, line 2, at end insert “readily”

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Earl Howe: I shall speak also to Amendment 25. We read in Clauses 3 and 4 that the Secretary of State has to ensure that both the NHS Constitution and the handbook,

The amendments ask the basic question of what exactly is meant by this. The people who are going to need the NHS Constitution the most—that is, the people who are most going to need to rely on the rights and pledges it contains—are those members of society who are in some way disadvantaged and whose voice is less loud: the elderly, the disabled and the very sick. If those groups are not aware of what the constitution says and how it can help them, then the benefits that we all hope will flow from the constitution will be considerably diluted.

Awareness here is surely key. If we agree about that, we must also agree that both the constitution and the handbook have to be not just “available” but easily accessible to everyone who has a need or potential need to know and understand their contents, especially vulnerable groups. People have to know what their rights are and how they can challenge poor treatment if they receive it. They need to have things rapidly put right whenever mistakes are made. Therefore, it is essential that the availability of the constitution and the handbook is not dependent on chance or on people scouring the NHS for it.

I think back to the Patient’s Charter, which in its time was a good initiative. However, its effectiveness rather fizzled out because the incoming Labour Government did not put their weight behind it and, as a result, everyone forgot about it. Essentially, it disappeared off people’s radar. The Minister will no doubt say that the Patient’s Charter cannot really be compared with the NHS Constitution because, for one thing, it was not backed up in statute. I understand that distinction but my point is that, whether or not a constitution or a charter is backed up in statute, it is as good as useless if it is not promulgated to those whom it is meant to help—that is, the people who deliver and are in receipt of services. That applies not just to a few but to every household in the land, and it is an ongoing process—something that has to be kept up year after year.

I should like to hear from the Minister how it is envisaged that the constitution will be made available, to use the word in the Bill. I am not altogether happy with that word; I should have preferred “accessible” but I have gone for the phrase “readily available” to give a sense that the availability is not just dependent on consumer or user “pull” but also requires some “push” from the provider or commissioner end. I beg to move.

Lord Walton of Detchant: I hope that the Minister will readily agree to this helpful amendment, which strikes me as being a valuable addition to this clause. It is crucial that the constitution and handbook are very widely available—in public libraries, GPs surgeries, hospital outpatient departments and so on—so that it is readily available to all members of the public who wish to consult it. Therefore, I strongly support the amendment.

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Baroness Tonge: I speak to Amendment 10, which follows on from the amendment moved by the noble Earl, Lord Howe, and is really a development of the word “readily”. We agree with the noble Lord, Lord Walton, that the constitution should be readily available. If we are to have this constitution, it is important that it is in a format that is accessible to all people, whichever language they speak and regardless of whether they are physically challenged in any way. Presumably it will have to be in Braille and in a format that is easily read and understood by people with learning disabilities too. If it is to be available, it must be readily available to all those groups and must therefore be in every health service premises.

I wondered, rather whimsically, whether, on qualifying, all NHS staff—doctors, in particular—should drop the Hippocratic oath and learn to recite the NHS Constitution before being allowed to practise in the NHS. Alternatively, as used to be the case in some churches in this country where the Ten Commandments were written on the walls, perhaps in each waiting room of every health service establishment the constitution could be available in several languages. It would give people something to do other than look at the goldfish; it would be an interesting diversion.

I think that these amendments are very important if the constitution is to mean anything. We are not suggesting that it should be chained to the wall—again, an ecclesiastical reference. It is not a chained Bible but it should be readily available in a form that is understood by everyone and it should be in every NHS premise.

5.30 pm

Lord Darzi of Denham: Amendments 9 and 25 propose that the NHS Constitution and the handbook to the NHS Constitution be “readily available” to patients, staff and members of the public rather than “available” as the clause currently reads. Amendment 10 seeks to provide after Clause 3(1) that each of the bodies under a duty to have regard to the constitution should display the constitution, and that each of those bodies must be able to provide a copy of the handbook for reference.

It is important to reassure the Committee that the constitution and the handbook will be readily available. As the Constitutional Advisory Forum pointed out in its role as the guardian of the constitution process, a critical success factor in ensuring that the constitution takes effect will be the approach taken to communicating its content. I have no doubt that when we assess the impact of the constitution we will know the impact of our communication strategy.

Communication of the constitution will be a core priority, both locally and nationally. The department is working closely with the NHS in developing various means of communications to help the NHS to raise awareness and promote understanding of the constitution among staff, patients and the public. I assure noble Lords that we intend access to the constitution to be as broad as possible. We are devising several communication methods and producing the constitution in many alternative formats to spread the message. The constitution and the handbook are, of course, available on the internet but, for those who do not

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have access to computers, they will be available in hard copy. NHS bodies will also have access to hard copies of the constitution and will be supported by the Department of Health in promoting it locally.

I can reassure the noble Baroness, Lady Tonge, that the constitution will be translated into other languages. It will be available in Braille, in large print and in audio, and the Government are finalising an easy-to-read guide which can be used by children and those with learning difficulties. All these documents will be widely available.

The communication of the constitution will not be a prescriptive, top-down approach, as we have debated before; it will be for the local NHS organisations to determine the best place to display the constitution and the handbook. I have no doubt that PCTs, acting on behalf of their local populations, will find the constitution an extremely useful tool to help in sharing with the users of the service what their rights and responsibilities are.

I hope that I have been able to clarify that it is not necessary to extend the communication of the constitution and the handbook from “available” to “readily available”, but if I have not convinced the Committee I shall be happy to look at the matter again and come back to it on Report.

Lord Stoddart of Swindon: I appreciate that the handbook will be displayed in various places, including public libraries, doctors’ surgeries, hospitals and so on, but the general public need to know that. The document I have here is useful and it would not cost too much to send it to every household in the country. There could be an edition which informs people where they can see the full handbook and directs them to their nearest public library or wherever else it may be. That would be helpful in letting people know exactly what they can expect from the health service and what duties they have to it. Perhaps the Government will consider that.

Lord Naseby: I support the noble Lord, Lord Stoddart. I suspect that most of us carry the European health insurance card, which has a renewal date on it. Why not make sure that every time the card is renewed—this one is due in March 2010—a copy of the document is communicated to the individuals who receive the card?

Lord Darzi of Denham: Anything that we can do to enhance communication in this field will be very important. I am not sure whether communication of the constitution will be fulfilled through the European health card but I shall be more than happy to look into that. However, I take the point and could not agree more. We have a document which has been well received by patients, by the public and by the staff who work in the NHS. The more we communicate around this the better it is for those who receive care from the NHS and those who work within the NHS.

Earl Howe: I am grateful to all noble Lords who have taken part in the debate. I still have a feeling that the word “available” is slightly weak; it is not proactive enough to convey the full sense of what we all, including

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the Minister, would like to see. I was reassured by the intentions that he outlined as regards publicising the constitution. It is a question of carrying on as we have started in that, if the Government do everything they say they are going to do, that will be great, but we want to make sure that this effort is maintained over the years into the indefinite future. Unless that happens, this document, like the late, lamented Patient’s Charter, will disappear off everyone’s radar.

I shall think carefully about what the Minister has said between now and Report and decide how best to take the matter forward. In the mean time, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

5.35 pm

Sitting suspended.

5.45 pm

Amendment 11

Moved by Baroness Barker

11: Clause 3, page 3, line 5, at end insert—

“( ) The Secretary of State must ensure each of the bodies listed in section 2(2) reviews and consults with their local authority, on an annual basis, regarding the adequacy of local arrangements for ensuring their accountability to the local community through democratically elected councillors.”

Baroness Barker: Amendment 11 brings to the attention of the Committee a substantial omission within the constitution, the handbook and the statement of accountability, which is the requirement of NHS bodies to review and consult with local government on their local accountability arrangements.

Despite the long list of bodies referred to by the noble Lord, Lord Warner, in a previous group of amendments, the NHS remains largely unaccountable to local people, not least because strategic health authorities bear no relation to any other tier of government. Pretty well the only means of accountability lies within local health overview and scrutiny committees. They have the power to scrutinise the operation and planning of local health services, and they can make reports and recommendations on the adequacy of current planning and provision.

Strategic health authorities struggle to achieve the level of interaction and joint agreement with the NHS that perhaps was envisaged for them when they were created. It is relevant to point out that in the research done in 2007 fewer than 10 per cent of non-executive directors of health trusts were local councillors. That is not in itself a bad thing, and we have no desire to return to the old days when local health boards had large numbers of political appointees placed on them. However, it points to a degree of separation between local authority planning and local NHS planning,

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which I think will become more noticeable over the coming years. It is something that comes to the fore when resources are scarce.

Why is this important? Not for the first time, politicians of all parties have been coming to a realisation that not just the use of public funds but the way in which public services are designed and implemented locally have an impact on the health of an area, and we are beginning to understand in ever greater detail the effect that environmental decisions can have on the health of a population. The planning of roads and social facilities, the location of schools and access to healthy food within communities are becoming more relevant and important. There should be a greater degree of sharing between the NHS and local authorities if there are to be improved health outcomes for local populations and if health inequalities are to be reduced.

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