Health Bill [HL]

My Lords, Amendment 9 is designed to take us back to one of the most perplexing aspects of this whole chapter of the Bill: what exactly it means to require bodies and persons to have regard to the NHS Constitution. 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. 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? 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 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.