THE NHS CONSTITUTION
The NHS was created out of the ideal that good health care should be available to all, regardless of wealth. When it was launched in 1948, it was based on three core principles:
(1) that it meet the needs of everyone (2) that it be free at the point of delivery
(3) that it be based on clinical need, not ability to pay.
The NHS Constitution was first published on 21 January 2009, with a revised version in 2012. It was again altered from April 2013 by the National Health Service (Revision of NHS Constitution—Principles) Regulations 2013 SI No. 317. It applies to NHS services in England. The Constitution will be renewed every 10 years.
The Constitution contains the following elements:
● a short overview outlining the purpose of the NHS and of the Constitution;
● the principles of the NHS;
● NHS values developed by patients, public and staff;
● rights and pledges for patients and the public, as well as their responsibilities;
● rights and pledges for staff, as well as their responsibilities.
The rights and responsibilities in the Constitution generally apply to every- one who is entitled to receive NHS services and to NHS staff.
Seven key principles are set out in the Constitution:
(1) The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity or marital or civil partnership status.
(2) Access to NHS services is based on clinical need, not an individual’s abil- ity to pay.
(3) The NHS aspires to the highest standards of excellence and professionalism.
(4) The NHS aspires to put patients at the heart of everything it does.
(5) The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population.
(6) The NHS is committed to providing best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources.
(7) The NHS is accountable to the public, communities and patients that it serves.
DUTY OF THE SECRETARY OF STATE AS TO THE NHS CONSTITUTION
According to a new Section 1B of the NHS Act 2006:
(1) In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.
(2) In this Act, ‘NHS Constitution’ has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see Section 1 of that Act).
HEALTH AND WELLBEING BOARDS
Health and Wellbeing Boards are expected to be formally established when the relevant provisions of the Health and Social Care Act are brought into force from April 2013.
However, in many areas local authorities have established shadow Health and Wellbeing Boards to prepare for establishment.
From April 2013, the boards will be committees of the local authority.
Their role is to:
● prepare the joint strategic needs assessment;
● prepare the Joint Health and Wellbeing Strategy; and
● to promote integrated working between NHS, public health and social care commissioners.
Establishment of Health and Wellbeing Boards According to Section 194 of the 2012 Act:
(1) A local authority must establish a Health and Wellbeing Board for its area.
(2) The Health and Wellbeing Board is to consist of:
(a) subject to Subsection (4), at least one councillor of the local authority, nominated in accordance with Subsection (3);
(b) the director of adult social services for the local authority;
(c) the director of children’s services for the local authority;
(d) the director of public health for the local authority;
(e) a representative of the Local Healthwatch organisation for the area of the local authority;
(f) a representative of each relevant clinical commissioning group (CCG);
and
(g) such other persons, or representatives of such other persons, as the local authority thinks appropriate.
From April 2013, boards will be under a statutory duty to involve local people in the preparation of Joint Strategic Needs Assessments (JSNAs) and the development of joint health and wellbeing strategies.
Boards will also be accountable to local people through the membership of local councillors and Local Healthwatch.
Health and Wellbeing Boards will have a duty to encourage integrated work- ing between decision makers and service providers in health and social care.
The Government envisages that Health and Wellbeing Boards will be the
‘focal point for decision-making about local health and wellbeing’, facilitating joint working between CCGs, local authorities and community stakeholders.
A core role of Health and Wellbeing Boards is to facilitate communication between local authorities and CCGs. This focus extends to scrutinising the CCG commissioning process, leading on joint commissioning where appropri- ate and bringing together representatives from health and social care and pub- lic health to encourage a cohesive approach across these three domains.
Health and Wellbeing Boards will be responsible for leading on the pro- duction of the JSNA, an assessment of local health and wellbeing needs across health care, social care and public health.
Health and Wellbeing Boards will be responsible for producing a ‘Joint Health and Wellbeing Strategy’ in response to the JSNA. The Joint Health and Wellbeing Strategy will provide a strategic framework for local commissioning plans.
CCG Duty to Consult
CCGs are required to consult the views of the Health and Wellbeing Board throughout the commissioning process to ensure that commissioning plans fol- low the Joint Health and Wellbeing Strategy.
The NHS Commissioning Board (NHS CB) will seek the views of the Health and Wellbeing Board when compiling their annual assessment of CCGs, in particular with relation to whether the CCG has aided the delivery of the Joint Health and Wellbeing Strategy.
Board in Every Upper Tier Local Authority In the 2012 Act, ‘local authority’ means:
(a) a county council in England;
(b) a district council in England, other than a council for a district in a county for which there is a county council;
(c) a London borough council;
(d) the Council of the Isles of Scilly;
(e) the Common Council of the City of London in its capacity as a local authority.
HEALTHWATCH
A new organisation called ‘Healthwatch’ is the new consumer champion for health and social care in England, and answerable to the Care Quality Commission (CQC).
It is divided into two bodies:
(1) Healthwatch England: a national organisation that enables the collective views of the people who use NHS and social care services to influence national policy. Healthwatch England was established in October 2012.
(2) Local Healthwatch: it represents the views of people who use services, car- ers and the public. It also acts as a channel for complaints about services.
Healthwatch England
Healthwatch England is a statutory committee of the CQC. It has three main functions:
(1) It provides leadership, guidance and support to Local Healthwatch organisations.
(2) It has the power to recommend that action is taken by the CQC when there are concerns about health and social care services.
(3) It provides advice to the Secretary of State, NHS CB, Monitor and the English local authorities, and they are required to respond to that advice.
The Secretary of State for Health must consult Healthwatch England on the mandate for the NHS CB.
Healthwatch England is required to make an annual report and lay a copy before Parliament.
The Chair of Healthwatch is a non-executive director of the CQC.
Healthwatch England has its own identity within CQC, but it is supported by CQC’s infrastructure and has access to CQC’s expertise.
Local Healthwatch
Local Healthwatch committees are statutory organisations that are funded through and remain accountable to local authorities.
Each Local Healthwatch has a direct relationship and ongoing dialogue with Healthwatch England for advice and support and is able to raise serious concerns with the CQC.
From April 2013, Local Healthwatch committees take over the statutory functions of the Local Involvement Network (LINk) together with additional duties including:
● reposition from influencing policy to participating in decision-making through a seat on Health and Wellbeing Board representing the patient
● public and carer’s voice
● understand and present community views
● disseminating information to the public to enable patient choice.
Additionally Healthwatch will provide signposting to advocacy services commissioned by the local authority.
Current Statutory Roles of LINks
● Promoting involvement of local people in the commissioning, development and assessment of local health and social care services.
● Monitoring health and care services through ‘enter and view visits’, listen- ing to users and carers and surveys to assess the effectiveness of services.
● Obtaining the views of users of health and social care services on the effec- tiveness of these services – access-quality-meeting local need.
● Issuing reports and recommendations on the local services to the commis- sioners and providers of services in order to create better services.
● Influencing commissioners of health and social care (adult) so that their plans meet our needs.
What Will Be New or Different?
Local Healthwatch will have the same powers as LINks but will also carry out some additional activities, including:
● Local Healthwatch will either provide or signpost the public to NHS com- plaints advocacy to support people with complaints.
● Local Healthwatch will provide advice, information and will support patients to choose the services which best meet their needs. The Patient Advocacy and Liaison Services (PALS) currently provided by Primary Care Trusts (PCTs) will transfer, with its funding, to the Local Healthwatch. It will be important for data and information about services and clients and ongoing ‘live’ cases also to be transferred to the new Local Healthwatch.
● Under the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 SI No.
351, local Health Watch has a right of entry to service providers (including pharmacies) to
● enter and view those premises; and
● observe the carrying-on of activities on those premises.
INDEPENDENT COMPLAINTS ADVOCACY SERVICES
Section 12 of the Health and Social Care Act 2001 placed a statutory respon- sibility on the Secretary of State for Health to make appropriate arrangements for the delivery of independent advocacy services to support people in making complaints about the NHS.
The Department of Health set up the Independent Complaints Advocacy Services (ICAS) on 1 September 2003.
The requirement was continued in the NHS Act 2006.
Section 248(1) states:
The Secretary of State must arrange, to such extent as he considers necessary to meet all reasonable requirements, for the provision of independent advocacy services.
What Does ICAS Do?
ICAS provides information, support and guidance to help people wishing to complain about the treatment or care they receive under the NHS. Trained advo- cates (case workers) with the knowledge of the NHS complaints procedure help people to understand whether they wish to pursue a complaint. Where required advocates provide support to people in making and progressing a complaint.
Arrangements from 2013
From April 2013 the local authority will be required to commission advocacy services which will be accessed through Local Healthwatch (but not necessar- ily provided by them).
ICAS services can be commissioned in the following ways:
(a) a contract with an ICAS provider for the NHS advocacy service;
(b) a number of local authorities contracting with a single ICAS provider for the NHS advocacy service;
(c) the contracted Local Healthwatch also contracted to provide the NHS advocacy service for the area;
(d) the Local Healthwatch contractor subcontracting for the NHS advocacy service for the area;
(e) local authorities contracting with an advocacy provider for both NHS and social care advocacy using a single contract.
PATIENT ADVOCACY AND LIAISON SERVICES
PALS are trust-based services able to assist and support patients. They provide information and resolve problems and difficulties. They act on behalf of their service users when handling patient and family concerns.
The PALS will also advise patients on how to access independent advocacy to support their complaints.
The service provides:
● confidential advice and support to patients, families and their carers;
● information on the NHS and health-related matters;
● confidential assistance in resolving problems and concerns quickly;
● explanations of NHS complaints procedures and contact details;
● information on the NHS locally;
● a focal point for feedback from patients to inform service developments;
● an early warning system for NHS Trusts, PCTs and Patient and Public Involvement Forums by monitoring trends and gaps in services and report- ing these to the trust management for action.
CARE QUALITY COMMISSION
The CQC is a non-departmental public body of the United Kingdom. It was established by the Health and Social Care Act 2008 to replace three bodies:
(1) Healthcare Commission
(2) Commission for Social Care Inspection (3) Mental Health Act Commission.
The CQC1 regulates most health and adult social care services in England, including those provided by the NHS, local authorities, private companies or voluntary organisation.
It also protects the interests of people detained under the Mental Health Act.
It is governed by four sets of Regulations:
(1) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, (SI 2010/781)
(2) CQC (Registration) Regulations 2009 No. 3119 (“the Registration Regulations”)
(3) CQC (Membership) Regulations 2008 No.2252 (“the Membership Regulations”)
(4) CQC (Registration and Membership) (Amendment) Regulations 2012 No.
1186.
All providers of regulated activities are required to register with the Commission.
The Regulated Activities Regulations set out essential levels of safety and quality in the provision of health and adult social care in England. Further reg- istration requirements are set out in the Registration Regulations.
Providers of regulated activities are required to meet these registration requirements in order to become and remain registered with the Commission.
The Commission has a range of enforcement powers that it can use in order to protect patients and service users from the risk of harm. These include fines and public warnings.
The CQC can apply specific conditions in response to serious risks. For example, it can demand that a hospital ward or service is closed until the pro- vider meets safety requirements or is suspended. It can take a service off the register if absolutely necessary. Under Regulations 16 and 18 of the Registration Regulations, a registered health service provider of regulated activities is required to notify deaths of service users or serious incidents to the Commission.
The CQC also carries out periodic and special reviews in order to improve health and social care in the United Kingdom.
What Are Regulated Activities?
Regulated activities are listed in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010. They are:
● Personal care
● Accommodation for persons who require nursing or personal care
● Accommodation for persons who require treatment for substance misuse
● Accommodation and nursing or personal care in the further education sector
● Treatment of disease, disorder or injury
● Assessment or medical treatment for persons detained under the Mental Health Act 1983
● Surgical procedures
● Diagnostic and screening procedures
● Management of supply of blood and blood-derived products
● Transport services, triage and medical advice provided remotely
● Maternity and midwifery services
● Termination of pregnancies
● Services in slimming clinics
● Nursing care
● Family planning services.
All NHS primary medical services working under one of the following contracts or agreements must register.
● General Medical Services
● Personal Medical Services
● Alternative Provider Medical Services
● NHS Act 2006 Section 3 (contracts with the Secretary of State).
Providers of the following are included:
● out-of-hours services
● primary medical services
● urgent care centres
● minor injury units
● general practitioner-led health centres
● walk-in centres
● health and adult social care.
Regulated activities are listed in Schedule 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010.
The Regulations contain a definition of ‘health care professionals’. The term means a person who is a:
● medical practitioner
● dental practitioner
● dental hygienist
● dental therapist
● dental nurse
● dental technician
● orthodontic therapist
● nurse
● midwife
● biomedical scientist
● clinical scientist
● operating department practitioner
● radiographer.
Pharmacy
Pharmacists are excluded from this list. Stand-alone treatment services run by pharmacists are not required to register.
Para 13 of Schedule 2 excludes them from the operation of the Act:
Pharmaceutical services and local pharmaceutical services provided under Part 7 of the 2006 Act and services of a kind which, if provided in pursuance of that Act, would be provided as pharmaceutical services or local pharmaceutical services under that Part.
Exemptions Currently Without a Time Limit
● Doctors in independent practice.
● An individual medical practitioner who practises privately in a surgery or consulting room is exempt if they (as individuals) also provide services under NHS arrangements there or elsewhere.
● Independent midwives are exempt if they meet all of the following criteria:
● they provide services independently (not in the NHS);
● they work on their own (not as part of an organisation or a partnership);
and
● they only provide services on an individual basis to people in their own homes.
● Pharmacy services.
● Primary ophthalmic services.
THE HEALTH SERVICE COMMISSIONER FOR ENGLAND
The 1973 Act provided for the creation of the post of Health Service Commissioner. The function is to investigate and report and make recommen- dations on complaints about the activities of health authorities and those for whom they are responsible.
Separate Commissioners were created for England and Wales. The NHS (Scotland) Act 1972 similarly created the post for Scotland. The provisions of the 1973 Act were repeated in the consolidating act of 1977. The Health
Service Commissioners Act 1993 consolidated the legislation relating to the Health Service Commissioners for England, Wales and Scotland.
In practice the Parliamentary and Health Service Ombudsman (the Ombudsman) combines the two statutory roles of Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) and Health Service Commissioner for England (Health Service Ombudsman). The post is currently held by Dame Julie Mellor DBE.
How to Complain
The Commissioner acts only on a written complaint, received within a year of the event. The complaint must be made by the person who has suffered the injustice (unless he or she is unable to act for oneself).
Jurisdiction
The commissioner investigates complaints that a person has suffered injustice or hardship because of a failure by a health authority to provide services prop- erly or as a result of maladministration.
From 1 April 1996, Health Service Commissioner (Amendment) Act 1996 extended the jurisdiction of the commissioner.
Section 1 adds family health service providers and independent providers to the list of those about whom the commissioner may investigate complaints.
Section 6 removes a statutory bar on the commissioner investigating mat- ters of clinical judgement.
Section 7 allows the commissioner to investigate complaints about family health services.
PUBLIC HEALTH ENGLAND
Public Health England is an executive agency of the Department of Health.
The Chief Executive is accountable to both the Permanent Secretary and the Secretary of State for Health.
The role of Public Health England is to provide expert evidence and intel- ligence, together with cost–benefit analyses to enable government, the NHS and others to:
● invest effectively in prevention and health promotion
● enable people to live healthier lives
● reduce demand on health and social care services
● protect the public by providing a comprehensive range of health protection services
● commission and deliver safe and effective health care services and public health programmes.
THE HEALTH PROTECTION AGENCY
The Health Protection Agency (HPA) was created on 1 April 2003 as a Special Health Authority to cover England and Wales.
On 1 April 2005, the Agency was established as a non-departmental pub- lic body, replacing the HPA (Strategic Health Authority) and the National Radiological Protection Board and with radiation protection as part of health protection incorporated in its remit.
On 1 April 2009 the Agency merged with the National Institute of Biological Standards and Control.
The structure from 2013 onwards is unclear at the time of writing but it is likely to become an executive agency of the Department of Health.
From 1 April 2013 the HPA became a directorate of Public Health England.
It provides an integrated approach to health protection in order to reduce the impact of infectious diseases, poisons, chemicals, biological and radiation hazards.
It provides:
● information and advice to professionals and the public; and
● independent advice to the Government on public health protection policies and programmes.
It integrates expertise that was previously distributed between a number of organisations, including:
● The Public Health Laboratory Service, including the Communicable Disease Surveillance Centre and Central Public Health Laboratory
● The Centre for Applied Microbiology and Research
● The national focus for chemical incidents
● The regional service provider units that support the management of chemi- cal incidents
● The National Poisons Information Service
● NHS public health staff responsible for infectious disease control, emer- gency planning and other protection support
● National Institute of Biological Standards and Control.
The HPA operates from four major centres:
(1) HPA Colindale (2) HPA Porton
(3) The Centre for Radiation, Chemical and Environmental Hazards in Chilton (4) The National Institute for Biological Standards and Control in Potters Bar.
There are also local and regional offices across England.
The HPA Act requires the Agency to be accountable for the standards of the health care services it provides as if it were an NHS authority. This means that the Agency is subject to registration by the CQC.