NHS Constitution Consultation

The NHS in England is required to have a Constitution which establishes the principles and values of the NHS in England. The existing Constitution sets out the current principles, values, rights and pledges underpinning the NHS as a comprehensive health service, free at the point of use for those who need it (available here ).

The Health Act 2009 provides that every 10 years the Secretary of State must carry out a review of the NHS Constitution and a wide range of groups must be consulted.

On 30 April 2024 the NHS released a short 8 week consultation on proposed changes to the NHS Constitution. The consultation is available here – scroll down.

A number of specific changes are proposed but two of the most striking are:

• The introduction of new rapid reviews for patients from outside the care team if the patient is deteriorating, following the tragic story of Martha Mills;

• The right to request that intimate care is carried out by someone of the same biological sex, where reasonably possible and a reinforced commitment to providing single-sex wards.

One new addition which deserves specific attention (perhaps for the wrong reasons) is the new NHS value of ‘Environmental responsibilities’ which reads as follows:

“We play our part in achieving legislative commitments on the environment. We do this by improving our resilience and efficiency, while always prioritising value for money. We will never compromise standards of care or the needs of patients in pursuit of these targets.”

But what does this actually mean in real terms? How is resilience going to help achieve our environmental commitments? Efficiency might mean less waste (an environmental plus) but does it mean that e.g. less environmentally friendly disposable items might nonetheless win the day if they are cheaper? Another example might be the temperature in hospitals – for example turning down the thermostat by one degree might have a (very small) adverse effect on patient care whilst save x tons of emissions every year.  Surely such a consideration requires a balancing analysis.  The final sentence is a bit of a mystery too: does the NHS have a history of compromising standards of care or the needs of patients in pursuit of environmental targets? 

As currently drafted this “value” is a headline statement which means precisely the opposite of what is perhaps intended or at least nothing at all – other than perhaps more recycling bins in hospitals... Given the Government’s repeated failures to create a lawful climate change strategy (the strategy has been quashed as unlawful twice in the last two years), the wording is perhaps symptomatic of a lack of understanding of our obligations under our own domestic legislation enacted by Parliament.  Surely we can do better than this.

Anyway, the consultation closes at 11.59pm on 25 June 2024, and you can respond via their online survey.

As everyone likes to say: the NHS belongs to us all. But the future of the planet belongs to our children.

Samantha Broadfoot KC is a public and administrative law silk, with a wide-ranging practice, including in healthcare law. She is a contributor to the NHS Law book, and the second edition is due out in Autumn 2024.