An NHS constitution could be beneficial, but only if drafted correctly, says The King's Fund

There is a case for an NHS constitution, but there are pitfalls to avoid when drafting one, according to a King's Fund report published today: Governing the NHS: Alternatives to an independent board.

The Prime Minister has indicated that he is considering plans for a new 'NHS constitution' as part of Lord Darzi's review of the NHS.

Niall Dickson, chief executive of the King's Fund, said: 'A constitution could provide real benefits but there are dangers if it is not thought through with care.

'A detailed list of patients' rights could become caught up in endless legal wrangling. On the other hand, a constitution which simply reiterates core principles or restates existing targets, such as 18-week waiting times, without any enforceable rights for patients would lack credibility.'

Yet the report goes on to argue that a constitution that sets out lines of accountability, as well as the roles and relationships in today's more devolved health care system, could help clarify what the NHS is designed to do and how it is governed. It could also place appropriate legal checks on ministerial and departmental decisions.

The report also concludes that as recent reforms have begun to increase the autonomy of health service organisations and reduce central government control, an independent board to manage the NHS would be unnecessary. Foundation trusts, GPs with new commissioning powers, regulatory bodies such as Monitor and the Healthcare Commission and NICE, who make decisions on acceptable treatment costs, are all examples of autonomous bodies involved in the running of NHS services.

Co-author of the report, Anna Dixon, acting director of policy at the King's Fund, said:

'People have legitimate concerns about excessive central control and the 'politicisation' of operational decisions in the NHS. There will always be short-term political pressures on whoever is making decisions, whether it is politicians or members of an independent board. However, recent reforms creating autonomous NHS providers, patient choice and devolved commissioning and delegated responsibility for regulation have shifted power over the day-to-day running of the NHS away from central government.'

Anna Dixon added:

'Those who propose an independent board to manage the NHS believe it necessary to reduce politicisation and micromanagement, but our assessment found those arguments unpersuasive. A board would be under the same pressures now faced by Ministers, especially media scrutiny, and it is hard to accept that decisions about such a large chunk of public spending should be made by an unelected, unaccountable board. The fact is that control of operations is shared among many bodies in the modern NHS meaning the Department of Health is no longer the sole, or main, source of rules and regulations that govern NHS organisations.

'This report sets out constructive ideas to help ensure that future decisions about health policy are more transparent, strategic and focused as much as possible on outcomes.'

The authors suggest some other measures that might be considered to help secure operational independence and ensure that decisions about the NHS are as free from short-term political pressures as is possible. These include:

  • an explicit commitment to local decision-making where possible
  • a stronger role for parliament – giving MPs more opportunities to debate health service reforms
  • promoting better understanding of when responsibility lies with local managers rather than national figures
  • improving transparency by requiring Ministers and the Department to make information on policy decisions, and the evidence underpinning them, available to the public
  • strengthening local accountability – by increasing the clout of local authority oversight and scrutiny committees.

Read the report Governing the NHS: Alternatives to an independent board

Notes to editors: 

  1. Download the full report on The King's Fund website.
  2. For further information or interviews, please contact the King’s Fund media and public relations office on 020 7307 2585, 020 7307 2632 or 020 7307 2581. An ISDN line is available for interviews on 020 7637 0185.
  3. The King’s Fund is an independent charitable foundation working for better health, especially in London. We carry out research, policy analysis and development activities, working on our own, in partnerships, and through funding. We are a major resource to people working in health and social care, offering leadership development programmes; seminars and workshops; publications; information and library services; and conference and meeting facilities.