Strengthening Democratic Accountability in the NHS: Opportunities in Constitutional Reform

By: Keegan Clay Shepard

Introduction

My name is Keegan Clay Shepard and I am a Research Fellow at the Constitution Society where I am exploring the concept of democratic accountability within the NHS. In this blog I discuss the open consultation aimed at influencing change to the NHS Constitution. In particular, I evaluate existing accountability mechanisms and their inclusion within the NHS Constitution, identify any gaps, and explore how we can use this consultation to strengthen democratic accountability in the NHS going forward.

While some readers may wonder about this article’s relevance to the Constitution Society, I strongly believe that those interested in the UK Constitution more generally should also be interested in the NHS Constitution specifically. The NHS version codifies many fundamental constitutional principles like equity, fairness and justice within a crucial public service funded by the taxpayer. In particular, it provides a practical example of balancing rights and responsibilities, ensuring public governance, as well as demonstrating the importance of democratic participation and accountability, thereby enriching understanding of how constitutional principles impact the everyday lives of those across the country.

The Secretary of State for Health and Social Care, the Rt Hon Victoria Atkins MP, has opened this consultation, offering an invaluable opportunity to everyone impacted by the NHS and its services to provide feedback that could inform improvements. Therefore, I’d urge readers to consider responding to ensure that the NHS Constitution continues to reflect the principles, values, rights and pledges they wish to see in our health system.

Simply put, the NHS Constitution establishes the fundamental principles and values guiding the NHS in England. It outlines the rights of patients, the public, and staff, and sets forth the responsibilities each group owes another to ensure fair and effective operation. As a cornerstone document, it guides decision-making and policy, mandating a transparent and accountable system that upholds dignity and respect for all.

First published in 2009 following a recommendation by Lord Darzi, and updated in 2013 and 2015, the NHS Constitution is due for a ten-year review as required by the Health Act 2009. The current open consultation, closing on 25 June 2024, seeks to canvas responses to inform any improvements. A safe and accountable NHS is a popular one.

While the document covers a broad set of seven principles, this blog will focus on one in particular: accountability. Accountability, or more specifically democratic accountability, is vital in our healthcare system, ensuring NHS services meet the highest standards of equity and quality by holding decision-makers answerable to the public, a matter of great importance given the taxpayer-funded model of the NHS. 

The ongoing consultation offers a crucial opportunity to reinforce these principles. Engaging in this process is essential to shaping a more accountable and patient-centred healthcare system.

What are the existing accountability mechanisms?

Lord Darzi originally planned for the NHS Constitution to “enshrine the values of the NHS,” “increase local accountability to patients and public” and “define the rights and responsibilities of patients”. However, more than ten years on, we should reflect on whether it’s done this and whether it can do more.

The NHS upholds its commitment to accountability through several well-established mechanisms. NHS England oversees the provision of health services, ensuring that local services are effective, efficient, and offer high-quality care. Regulatory bodies such as the Care Quality Commission (CQC), play a pivotal role in maintaining standards by inspecting services and ensuring they meet quality and safety requirements.

Public involvement is also central to accountability; mechanisms like patient surveys and public boards allow the community to voice their concerns and influence service improvements. Furthermore, the NHS is bound by statutory duties of transparency which mandate the publication of performance data, financial reports, and operational outcomes, thereby allowing the public to scrutinise its activities and hold it accountable for its performance.

Together, these mechanisms are designed to ensure that the NHS operates not only with professional integrity but also in a way that remains answerable to the patients and communities it serves.

How are these currently embedded within the NHS Constitution?

The NHS Constitution integrates crucial accountability mechanisms by explicitly supporting the roles of regulatory bodies, like the CQC, which ensure compliance with health and safety standards. It mandates NHS England to oversee service efficiency and quality, ensuring that resources are used effectively. Public involvement is deeply embedded, granting the community the right to participate in decision-making processes about healthcare services. 

Additionally, the Constitution enshrines the right to transparency, requiring the publication of performance data and reports, which allows the public to scrutinise and hold the NHS accountable for its operations. These provisions uphold a commitment to a transparent, accountable NHS that engages actively with the communities it serves.

All well and good, but where are the gaps?

While democratic accountability may seem robust within the NHS, significant gaps persist.  Each carries severe implications for patients and the public. Key gaps include the centralisation of decision-making, inadequate oversight mechanisms, limited public influence on policy decisions, enforcement weaknesses in constitutional rights, and transparency issues in operational decisions (Benbow, 2018; Checkland et al., 2013; Holmes, 2022; Saunes et al., 2022).

Individually, these factors might have limited impact, but collectively, they can be fundamentally devastating. For instance, many will recall the recent case of Lucy Letby, the ongoing infected blood scandal, or the findings from the 2013 Francis Report, which investigated the Mid Staffordshire NHS Foundation Trust. The Francis Report estimated that between January 2005 and March 2009, 400 to 1,200 patients died due to financial pressures, staffing shortages, and a detrimental organisational culture, all contributing to the acceptance of substandard practices (Ball et al., 2013; Francis, 2013).

Despite numerous recommendations in the Francis Report to prevent future failings, many inquiries and reviews into substandard maternity care, such as the Ockenden Report (2022) on the Shrewsbury and Telford Hospital NHS Trust, continue to emerge across England, reflecting issues similar to those observed at Mid Staffordshire.

These recurring investigations highlight the urgent need for comprehensive reforms to ensure the NHS remains responsive, equitable, and transparent. The pressing question is whether changes to the NHS Constitution can play a pivotal role in addressing these systemic issues and enhancing democratic accountability.

How can we strengthen democratic accountability in the NHS?

With a general election scheduled for July 4th, political parties are focusing on reforms to enhance democratic accountability within the NHS. Think tank Reform’s “Close Enough to Care” report advocates for phasing out NHS England to empower local leadership through devolved powers (Beacon, 2024). Conversely, Labour has committed to strengthening the regulatory framework for NHS managers and improving accountability mechanisms for commissioners.

It is clear that the NHS Constitution needs clearer and more robust mechanisms for holding the NHS accountable. Currently, these mechanisms are not well known to the public, leading to inconsistencies in accountability across the system. Revisions to the NHS Constitution should incorporate more concrete principles of democratic accountability, ensuring decision-makers are answerable to the public, promoting transparency and responsiveness.

Expanding public and patient involvement is crucial. While the Constitution includes public consultation, ongoing engagement between reviews is limited, potentially causing a disconnect between constitutional promises and the evolving needs of patients and the public. Therefore, mechanisms such as wider consultations and representation on decision-making panels should be expanded between reviews every ten years.

Further, it’s evident that many aspirational elements of the NHS Constitution no longer reflect frontline realities. The NHS faces persistent challenges such as funding constraints and resource allocation issues, resulting in waiting lists and service delays. Despite guarantees of certain rights, practical limitations often hinder their fulfilment, raising questions about the legitimacy and enforceability of the NHS Constitution. This disconnect highlights the urgent need for mechanisms to ensure these important ideals are actionable and enforceable.

While feasibility might be an issue, a potential solution is to make the NHS Constitution’s provisions legally enforceable, giving individuals clearer grounds to claim their rights and ensuring the NHS meets established standards. By embedding these principles into law, we can create a robust framework that holds the NHS accountable and guarantees patients’ rights are consistently upheld.

However, it is important to note that implementing these proposed reforms to the NHS Constitution could face challenges. Resource limitations might strain efforts, particularly in financing new technologies and staff training. Legislative changes to enhance legal enforceability may encounter bureaucratic resistance, delaying implementation. Additionally, cultural shifts within the NHS could meet resistance from those wary of increased regulatory burdens or changes to professional autonomy. Engaging a diverse patient population effectively raises concerns about equitable participation and privacy management. Ensuring consistent application of reforms across various regions and departments will also be challenging, requiring robust oversight and adaptation.

Conclusion

As emphasised throughout this blog, the NHS Constitution could be a crucial vehicle in strengthening democratic accountability by outlining the rights and responsibilities of patients, the public and NHS staff, thereby ensuring transparency and responsiveness in healthcare delivery. As we are in the midst of its ten-year review, this is a pivotal moment for stakeholders at all levels — from patients and the public to healthcare professionals and policymakers — to actively engage in the consultation process. Your participation can drive effective reforms, ensuring the NHS Constitution remains relevant and reflective of current healthcare needs. By contributing your voice, you can help shape a more accountable and patient-centred NHS, reinforcing its commitment to high standards of care and equity for all. Join the consultation and be part of this essential reform process.

Keegan Clay Shepard.

Keegan Clay Shepard is a Research Fellow at NHS Resolution, where he leads the evaluation of two landmark maternity schemes: the Maternity Incentive Scheme and Early Notification Scheme. He holds a PhD from Edge Hill University and completed a postdoc at the University of Oxford, where he was funded by an NIHR grant to research patient concerns and complaints with the Quality and Outcomes of Person-centred Care Policy Research Unit (QORU) under the direction of the Department of Health and Social Care. He is a Constitution Society Research Fellow.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

References

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  2. Beacon, R., 2024. Close Enough to Care: A new structure for the English health and care system. rep. Reform. Available at: https://reform.uk/wp-content/uploads/2024/04/Close-enough-to-care.pdf (Accessed: March 2024).
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  8. Ockenden, D., 2022. Ockenden review: summary of findings, conclusions and essential actions. rep. Department of Health and Social Care. Available at: https://www.gov.uk/government/publications/final-report-of-the-ockenden-review/ockenden-review-summary-of-findings-conclusions-and-essential-actions.
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