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In Grand Committee, the Minister indicated in, I thought, a somewhat nonchalant way that there was a well established legal meaning to the phrase “have regard to”. The trouble is that he singularly failed to tell us what that meaning is. Of course, we have all dealt with the phrase in other Bills and usually one can understand perfectly well what it entails. For example, the Local Government and Public Involvement in Health Act 2007 obliges a local authority to have regard to every local improvement target specified in a local area agreement. It is fairly obvious what a local authority should and should not do in compliance with that duty, as it is very specific. The Healthcare Commission had a legal duty to have regard to government policy in exercising its functions. What this meant was very clear: in everything it did, the Healthcare Commission had to bear in mind the Government’s priorities in the delivery of healthcare and, as far as possible, to build those priorities into the ordering of its work.

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With the NHS Constitution, we have something rather different. The constitution is made up of principles, values, rights, pledges and responsibilities. What does it mean to “have regard to” a set of values or principles? Who can say whether you have succeeded or failed in doing so? How indeed is a patient supposed to know whether a nurse or doctor, or the hospital as a whole, has had regard to them? The answers to these questions are not straightforward. I, for one, do not pretend to know what they are. The plot thickens when we come to consider the rights contained in the constitution. What does it mean to say that an NHS body must merely have regard to a right? The average patient who reads the constitution may well believe that a right is something that is guaranteed.

In Grand Committee, I proposed in an amendment that the Government should issue guidance to dispel potential confusion and to ensure that everyone in the NHS, and everyone working on behalf of the NHS, understood what was expected of them. The Minister did not like that idea, and other noble Lords thought that it was unduly bureaucratic. However, if the meaning of the phrase is not explained, there will be only one result, which is a free-for-all across the country in the interpretation that people place on it. If we land up in a situation in which “regard” for a principle or value is interpreted differently in different parts of the health service, that will instantly undermine the credibility of the constitution. It is almost an invitation for someone to issue a challenge via the courts. Who wants that?

The Minister needs to realise, as I am sure he does, that the consultation that took place last year on the NHS Constitution raised enormous expectations among NHS staff. Many people genuinely believed that the constitution was to be part of a new way of working in the NHS under which everyone—patients, the public and staff—would know what was expected of them and what they in turn could expect to happen. In the event, the very opposite appears to have occurred. People are confused. It is true, and of course very welcome, that David Nicholson has written to chairs and chief executives with some examples of what they should be doing to fulfil the new duty. However, examples are simply that; there is apparently to be no guidance on how, as a matter of law, the duty to have regard to values, principles and rights should be translated into the day-to-day behaviour of NHS staff.

Indeed, we need to ask who is bound by this duty. The Bill says that NHS bodies and organisations are bound by it. Presumably that means that the duty rests on members of the board—the people in ultimate control of the organisation—rather than on each individual member of staff. However, if that interpretation is right, as I believe it is, it will lead to some odd results. The board will be held to account for the way in which it fulfils the legal duty, but the people who actually deliver NHS services will not be bound by it at all. I cannot see the sense of that, nor can I see how it will be workable. How will the average patient understand that distinction?

6.30 pm

We heard from the Minister that NHS bodies could fulfil the duty to have regard to the constitution by giving it “proper consideration”. That sounds to me

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very woolly and feeble. It appears to bind an NHS body to do no more than consider what the constitution says before taking a given course of action. That is not much. Equally, I do not think that that is what people either wanted or expected. Most of us would surely wish that, at the very least, the values and principles of the health service could be relied on by patients and staff in virtually all circumstances, that patients’ rights could be similarly relied on and that, when someone in the NHS is given a responsibility or a duty, you could take it as read that that person had that responsibility or duty. However, that understanding is, apparently, not correct.

Nothing can be taken for granted, because, quite deliberately, the constitution has been given no legal force of its own. In an extreme case, as an aggrieved patient taking an NHS body to court, you could use the constitution only as supporting evidence; you could not cite a breach of it as in itself an infringement of your rights. It is true that some rights within the constitution have a legal basis of their own, but some do not, as the Minister knows, and the task of proving that the NHS had failed to give a value or a principle proper consideration strikes me as being particularly difficult. Again, we need to bear in mind that this could be attempted only by means of judicial review, which is neither easy nor affordable for most people.

I am conscious that I have rather laboured this issue and I will now stop, because I should like to hear from other Members of the House and from the Minister, who I hope can throw some brighter shafts of light on to this question than we have had hitherto. I therefore beg to move.

Lord Mackay of Clashfern: My Lords, with great respect to my noble friend, this amendment does put a pretty heavy responsibility on the Secretary of State. Guidance as to what is meant by “have regard to” would either be extremely brief, or possibly, if it were extensive, a bit confusing, to say the least of it. I do not underestimate the skill in drafting available to the Minister, but I have seen some attempts at this kind of work and they are not always crowned with success.

The phrase “have regard to” is, as the Minister said in Grand Committee, a very common phrase. Indeed, my noble friend referred to it being in other statutes. It is a very common phrase in the law and I have been involved in arguing cases and sometimes deciding cases in which it was a crucial phrase. I will not be giving a definitive meaning for it, but I think what, in principle, it means, is that, in making a decision, you take account fully of all the provisions of the document so far as relevant to the issue in hand and you take account of them properly and seriously, not in a dismissive way.

On the example about duties, if a document confers a duty or a right—perhaps I should take a right, to simplify matters—if a document confers a right, I would suggest that, if you have proper regard to that document, you give effect to the right, unless there are some over-riding other considerations from other parts of the document which, in effect, reduce or modify the first expression of the right. On the other hand, if it is a value, you conduct yourself in accordance with that

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value and that is what “have regard to” means. It is a compendious phrase with very considerable legal lineage in which it is applied. I do not think there are many cases in which the judges have attempted to say what it means; they know how to apply it. I have tried to summarise what I believe is the way it would apply in this sort of situation. If the Minister is prepared to accept that the Secretary of State will give guidance, I wish him joy in that task.

Baroness Barker: My Lords, I take the opportunity to support the noble Earl, Lord Howe, and to note, as one always should, the words of the noble and learned Lord, Lord Mackay of Clashfern. Far be it from Members of this House to deprive members of the legal profession of a source of income which has been extant for a very, very long time, arguments over the phrase “have regard to” have made many a legal career. I take the point of the noble and learned Lord, Lord Mackay of Clashfern, in full part; because I think it would be difficult for a Secretary of State to give a full meaning to that. None the less, this document, this constitution, is going to sit alongside a whole range of other documents of varying degrees of legal importance which medical staff have to bear in mind every day in the course of their duties. I think the noble Earl, Lord Howe, is right to try to establish exactly where it stands in rank of importance, as against other laws and as against statutory guidance as well.

It is for the Department of Health to provide assistance to members of staff about how this document will work in practice and what practical difference it will make to their work. The Department of Health has been in this situation before. When the Mental Capacity Act was being argued in Parliament, a great deal of work went on, during the passage of the Bill and subsequently, to try to give examples to practitioners as to what the phrase “best interests” would mean. “Best interests” is, similarly, a legal phrase of some standing and contention, but nevertheless, in order to make what Parliament had passed become a reality for patients, the department did considerable work on that. We can argue about whether this constitution is going to be of the same import as the Mental Capacity Act and the guidance that went with it, but I think the noble Earl, Lord Howe, is to be commended for trying to find an answer to that question, because if he does not, we risk confusing staff when they come to make decisions in practice. The department has a duty to make sure that that does not happen.

Lord Darzi of Denham: My Lords, Amendment 9 would commit the Secretary of State to publishing guidance on the meaning of the term “to have regard”. I understand that the noble Earl is concerned that the NHS will be insufficiently supported in the interpreting of the duty to have regard to the constitution. I should therefore like to reassure noble Lords on this point. The department has already embarked on a programme of work to ensure that the NHS knows what will be expected of it when this duty comes into effect. The noble Baroness, Lady Barker, raised this issue and I hope I can reassure her over some of the activities within the department. First, the department has set up a state of readiness group, involving many important representatives, both from within the NHS—for example,

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SHA chief executives—and from outside—for example, UNISON. The purpose of the group is to understand how to help the NHS to be ready to embed the NHS Constitution and to establish ways of providing assurance that the constitution is taking effect. The group has had its first meeting and will continue to meet until the summer.

Another example of the support which the department is providing is a toolkit which will be made available to the NHS imminently. Among other things, the toolkit contains a guide for staff: suggestions about how to incorporate the constitution into organisations’ annual reports, information for line managers and induction messages for new staff. These resources will enable the NHS to communicate the importance of the constitution to all staff and to explain what it means for them both as employees and for the way in which they provide care.

I am also aware that the noble Earl is concerned that the duty to have regard will mean that the constitution will not have any bite. I therefore remind him that much of the constitution is not new to the NHS. It contains many existing legal rights and where there are new ones, guidance will be published specific to those new rights.

I should like to clarify an issue about having regard to a right. A right in the constitution is a legal right; there is no such thing as a right in the constitution which is not underpinned by legislation. Similarly, the pledges reflect good practice and current departmental policy. Many are underpinned by existing performance mechanisms—in other words how we guarantee that these pledges are delivered. They are underpinned by existing performance mechanisms such as the operating framework. There is no possibility of them being ignored.

That leaves us with the principles, the values and the responsibilities. As I said, many of the principles are derived from existing legislation and do not represent a new way of working for the NHS. I do not think it would be appropriate to give guidance on how to have regard to the NHS’s values or to patients’ responsibilities, for example. In my view, the best guide that the department can give the NHS on what is meant by “having regard to the constitution” is the advice that the chief executive of the NHS has already given in his letter to the chairs and chief executives.

I sympathise with the noble Earl in relation to how we make this stronger. To produce formal guidance, as eloquently advised by the noble and learned Lord, Lord Mackay, on the meaning of “having regard to the constitution”, the department would have to list every kind of action that an organisation would have to take to demonstrate that it has had regard. Even if I am surrounded by the best brains, I promise noble Lords that we will get this wrong. As I said in Committee, I do not believe that this is possible or appropriate and I will not repeat my comments here. I believe that the guidance is unnecessary from a legal point of view. As we have heard today, “to have regard” is established legal terminology. It has been used, as the noble Earl suggested, in previous health Acts—the Health and Social Care Act 2008, and the Health Act 2006.

I sympathise with what the noble Earl is trying to achieve. The challenge in the NHS is how to get the constitution embedded in the mindset of all of us who

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work in the NHS and how to disseminate that information to those who use the NHS. That challenge will be met only with dialogue across the system. I hope that I have reassured the noble Earl enough for him to withdraw the amendment.

6.45 pm

Earl Howe: My Lords, I am very grateful to the Minister, the noble Baroness, Lady Barker, and my noble and learned friend Lord Mackay for taking part in this debate. My noble and learned friend indicated that it would be very difficult to formulate guidance. I do not doubt that he is right. However, at one and the same time, he had a pretty good shot at framing some of the main points which such guidance might contain. I do not think that it is a totally impossible business. Nevertheless, I recognise its complexity. My noble and learned friend drew out the point that the degree of regard which should be taken of different elements within the constitution changes in accordance with the matter in question. For example, a right is a right, as the Minister pointed out, and it is not enough simply to have regard to it; you have to implement it and honour it. Part of what would be teased out by guidance in the broadest sense is the scope for confusion and settling that.

The same applies to values. If one takes two of the values contained in the constitution, respect and dignity, one sees that they are meant to guide the NHS in all that it does. That is what we are told and what we would expect but what does it mean to say that the NHS merely has to have regard to them? Either it has those values or it does not. Equally, if we take the principle that the NHS aspires to the highest standards of excellence and professionalism, what does it mean to say that an NHS body merely has to have regard to that aspiration? Either it aspires to the highest standards of professionalism or it does not. If it does not, in what kinds of circumstances may it not do so? But for my noble and learned friend, those questions would have been left somewhat open by this debate; I think they are less open now than they were. For that, I thank him.

The Minister did not cover the issue of staff. Will individual members of staff within NHS bodies be bound by the duty to have regard to the constitution? I am not sure I understood whether I had got it right or not. As the Minister will remember from my opening remarks, I suggested that the Bill should be interpreted as imposing a duty on NHS bodies and organisations; in other words, the boards of those bodies, rather than each and every member of staff. If I am wrong in that I should be very grateful if the Minister would write to me. For now, with thanks to all noble Lords who have taken part in the debate, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Clause 3 : Availability, review and revision of NHS Constitution

Amendment 10

Moved by Lord Darzi of Denham

10: Clause 3, page 3, line 15, at end insert “and bodies or other persons representing patients”

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Lord Darzi of Denham: My Lords, I shall speak also to Amendments 11 to 14 and 17. Amendments 10 to 14 propose that the Secretary of State is specifically required to consult bodies or persons representing patients, bodies or persons representing staff, carers and local authorities in any 10-yearly review of the constitution. The definition of carers and local authorities is set out. Amendment 17 requires that the Secretary of State explicitly considers the effect of the constitution on carers, in addition to patients, public and staff, during the three-yearly report.

In Grand Committee, we had an important debate about the role of carers, local authorities and other bodies in the functioning of the NHS. Many noble Lords spoke to amendments proposing that certain bodies be explicitly consulted during the 10-yearly review of the constitution, and that carers be included in the report on the impact of the constitution. I am grateful to them for their suggestions.

As I explained at the time, the Government believe that, as originally drafted, the legislation regarding the 10-yearly review of the constitution captured the bodies mentioned during debate. For example, the duty in Clause 3(5) to consult,

during the 10-yearly review of the constitution would capture local authorities, and the duties in subsections (3) and (5) to consult “members of the public” would, of course, include carers. I also attempted to reassure noble Lords that, where any revision of the constitution affects certain bodies, it is fully our intent to consult them. Bodies representing patients and staff, carers and local authorities have been, and will remain, vital groups in shaping the constitution and any future changes to it.

However, I was struck by the force of argument in Committee and I promised to look again at the drafting of the clauses. I have considered further and am persuaded that there is a strong case for explicit mention of certain bodies in the Bill. It is for those reasons that I have tabled these amendments, proposing that the Secretary of State be explicitly required to consult carers, local authorities and bodies representing patients and staff, and to report on the impact of the constitution on carers.

Noble Lords will understand that legislation does not need to list every person and body to be consulted or reported on in detail. Referring to bodies representing staff and bodies representing patients allows us to capture bodies which were also mentioned in Committee, such as Local Involvement Networks, as mentioned by the noble Earl, Lord Howe, and trade unions and professional organisations, as mentioned by the noble Lord, Lord Campbell-Savours. We believe that these amendments strike the right balance. They ensure that carers and other bodies are represented and must be specifically consulted, while also respecting the concern raised in Committee about listing a large number of organisations in the Bill. I hope noble Lords are content with these amendments. I beg to move.

Earl Howe: My Lords, I thank the Minister for considering the points made in Grand Committee by noble Lords on all sides, and for having brought forward these amendments in response to those debates. They are extremely welcome.

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Baroness Masham of Ilton: My Lords, can the Minister give examples of bodies that might be representing patients? As the community councils are no more, there is a lack of bodies representing patients, and some patient organisations are very small and may not be able to do this without financial help.

Baroness Pitkeathley: My Lords, I, too, thank the Minister for these amendments. They are entirely appropriate and I am glad that he has taken account of the strength of feeling all around the House. It is entirely right that carers, who are such major providers of healthcare but who also have special health needs themselves because of their caring duties, should be recognised as they are in Amendments 12 and 13. Carers everywhere will be extremely grateful for this recognition of their contribution and status. Amendments 10 and 11 are proof of the Government’s proud record of support for patient-centred organisations; National Voices is only one of them. The NHS is infinitely more patient-focused now than it was 10 years ago, and for that the Government deserve praise.

Baroness Barker: My Lords, I, too, thank the Minister for the consideration that he has given to the points made so strongly and sincerely in Committee. I know that many of the groups that were active in putting forward amendments would wish us to put their thanks on record, too. Politically, this might be one of the most important parts of the Bill. I suspect that during the next five to 10 years the NHS will go through some major transitions, perhaps the most major in its existence, and that its purpose, scope and nature might become even more hotly contested and debated matters than they are now. It is therefore extremely important that we put in this legislation the right of these people to be involved at the heart of those discussions.

I do not wish to be churlish, but can the Minister explicitly assure me that the organisations representing patients in his amendments include former patients and carers of former patients? There persists in the NHS a feeling that all former patients want to complain. I do not think that that is true. Former patients and carers often have valid experiences and they are quite passionate about wanting the NHS to improve. I made the point in Committee and I wonder if it could be included in the reply.

Lord Darzi of Denham: My Lords, I want to reassure the noble Baroness. The best learning we can get in the NHS is achieved by consulting former patients. LINks is one of many groups representing patients that might be consulted.

Amendment 10 agreed.

Amendments 11 to 14

Moved by Lord Darzi of Denham

11: Clause 3, page 3, line 16, at end insert “and bodies or other persons representing staff”

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