This week saw the launch of a national consultation aimed at updating the NHS Constitution for England, which was implemented in 2009 under Gordon Brown’s Labour Government. The constitution itself sounds wonderful, apparently it
“establishes the principles and values of the NHS in England. It sets out patient and staff rights and responsibilities. It protects the NHS and helps ensure we receive high-quality healthcare that is free for everyone”
So far, so good. It sounds laudable. However, can a constitution really accomplish the things indicated in this quote? For example, at the height of the reform furore some commentators accused the government of reneging on their commitment to free healthcare for everyone. If the constitution were worth its salt then everyone from Unison, to the BMA to the Royal College of General Practitioners should have decried the reforms as unconstitutional. I am not aware of any of these critics invoking ‘a violation of the NHS constitution’ as a means of countering the juggernaut of reform. Far from establishing principles and protecting patients, the NHS constitution is better described as a straw man. It is being used to legitimise political reform that no members of the public either asked for or wanted.
The NHS constitution clearly has a role or function in terms of shaping (or even perhaps determining) how we think about our experiences and expectations of the NHS. The consultation document outlines 10 key areas that ‘need’ to be amended in the current constitution, ranging from patient involvement through to staff rights through to integrated care. The fact of the matter is that the review is necessary to bring the NHS constitution in line with the new (post-Health and Social Care Act) NHS. In effect, this consultation (with its list of NHS Future Forum proposed amendments) marks a further shift away from the principles of health as a public good and lurches towards further embedding the ideology of health as an individual right into the very fabric of the NHS.
The constitution is constructed around sets of 1) rights – across patients, public and staff, 2) pledges – which the NHS is committed to achieving, and 3) responsibilities – which public, patients and staff are obligated to honour, to “ensure the NHS operates fairly and effectively”. It is this conflation of rights and responsibilities that is most troublesome. David Harvey has talked about how processes of individual responsibility are a central part of the neoliberal state project; a process intended to ‘advance’ human wellbeing through the enhancement of private property rights, free markets and free trade. In terms of the issue of responsibility, within neoliberalism the dominant process is to guarantee personal and individual freedom, whereby
“each individual is held responsible and accountable for his or her own actions and well-being. This principle extends into the realms of welfare, education, health care, and even pensions … Individual successes or failures are interpreted in terms of entrepreneurial virtues or personal failings (such as not investing significantly enough in one’s own human capital through education) rather than being attributed to any systemic property”
It is responsibility that is the key issue. Who can be said to be truly wholly responsible for their health? We can be if, and only if, health is construed as an individual right. If health is regarded as an individual property, then health inequalities come to be construed as erroneous lifestyle choices (we choose not to exercise enough, to drink too much etc etc etc, i.e. we are irresponsible in our health choices). This approach functions to factor out the effects of poverty from our understanding of health inequalities. Petersen and Lupton wrote about this very dynamic in their excellent book on ‘the new public health’. Health is not a lifestyle choice. But the processes of responsibilisation inferred in the NHS constitution valorise this individual rights based, health behaviour model at the expense of a broader based approach that addresses inequalities in terms of wider systemic properties.
Health is a collective public good, and society (comprised of a compact between ourselves, e.g. the public, and the government and the health professions) is responsible for everybody’s health. The contract-uralisation and responsibilisation of this compact is an ideologically motivated strategy intended to weaken and diminish it, and ultimately to weaken and diminish the NHS as a collective public good.
Graham Martin on Nov 9, 2012
This individualisation of the constitution reminds me a little of Zygmunt Bauman’s comments on the ‘charters’ of the Major-era Conservative governments in the 1990s, including the Patient Charter. These, he says, constitute the citizen
“not as a person eager to assume responsibility for issues larger than his private needs and desires, but as a consumer of services provided by agencies s/he has little right and no interest to examine, let alone supervise. Citizens’ charters promote that image of the citizen by defining citizens’ rights as first and foremost, perhaps even solely, the right of the customer to be satisfied. This includes the right to complain and to compensation. This does not include, conspicuously, the right to look into the inner workings of the agencies complained about and expected to pay the compensation—much less the right to tell them what to do and according to what principles.”
By individualising the relationship between the NHS and the patient, these proposed changes make the constitution sound less like a constitution (qua set of founding inalienable principles) and more like one of these charters.
That said, there *has* got to be individual responsibility as well as collective action for health and health care. Health may not be a “lifestyle choice,” but individual choices do make a difference to health. Decentring this risks swinging too far towards social determinants and disempowering individuals. It may not be in circumstances of our choosing, but we do make our own history; there is agency as well as structure. So personally I’ve got nothing against a system which makes demands of individuals, places responsibility on them, enfranchises to think and act for themselves–as long as this is in addition to, rather than displacing, the inalienable right to healthcare.
Ewen Speed on Nov 12, 2012
Thanks for your comment Graham. You are right, of course there is agency as well as structure, but in terms of your point re balancing rights and responsibilities, perhaps the more pertinent issue is the type of choices, rights and responsibilities that are available for people to balance. If the dominant social approach is individualist, in policy and practice, then all things will eventually come to be seen in those narrow individualist terms; the framing of the constitution marks another further step down this road. I accept your point that the principle of ‘constitutional rights’ might indeed make demands of individuals, in turn making them responsible for their action and enfranchising them to think and act for themselves – in this context you might argue the constitutional principle is an example of ‘positive power’. I am not however all together convinced that this is something the NHS constitution does. In this context the NHS constitution is more readily described as an example of ‘negative power’, whereby the idea that healthcare and the NHS is a collective public good is denied. This denial is legitimised by invoking an individualist model which asserts individual rights and ignores collective responsibility.
This is not to say the right to healthcare is denied, but it becomes more and more narrowly conceived in terms of individual rights and responsibilities, at the expense of wider debates about the role and import of imbalances in levels of social equality and social justice.
Joe Reeves on Nov 16, 2012
As has just been shown in the case of yesterday’s Police Commissioner elections, a deliberate lack of promotion (online, in print and otherwise) is clearly an effective way to usher-in the desired changes. The cloak and dagger ministerial interference with the NHS – the fact that they are even doing it at all is what worries me most. This back-door approach to “altering” the foundations of the NHS only serves to highlight the fundamental arrogance of this current Conservative government; when you’re a multi-millionaire non-train fare-paying Chancellor of the exchequer, the NHS constitution, like everything else is just another goalpost able to be moved. Similar to the Jimmy Savile scandal, they are carrying out their crimes in plain sight, and somehow they are getting away with it.