Guidance

Public health supplement to the NHS Constitution

Published 27 July 2015

Applies to England

The NHS Constitution: what does it mean for the public health system?

Introduction

The Health and Social Care Act 2012 (2012 Act) paved the way for a stronger public health system in England. Local government leads the public health system at a local level. At a national level, Public Health England (PHE – an executive agency of the Department of Health and Social Care), provides an authoritative national voice and source of expert advice and services.

The National Health Service (NHS) (the part of the health service under the NHS Act 2006 provided and administered by NHS bodies, such as the NHS Commissioning Board and clinical commissioning groups) also has a big part to play in improving and protecting public health.

The 2012 Act means that local authorities in England have a statutory duty to take steps to improve the health of the people in their area (see Section 2B of the NHS Act 2006 – as inserted by section 12 of the Health and Social Care Act 2012), as well as other public health functions. The relevant local authorities are:

• a county council in England
• a district council in England, other than a council for a district in a county for which there is a county council
• a London borough council
• the Council of the Isles of Scilly
• the Common Council of the City of London

With these functions comes the responsibility for a range of services that were previously commissioned and provided by NHS bodies. The annex to this document lists examples of services that local authorities arrange.

This does not mean that local authorities are NHS bodies, but it does mean that when they are undertaking their public health functions they are an important part of the comprehensive health service (the comprehensive health service established in 1948, which the Secretary of State has a duty to continue to promote under Section 1 of the NHS Act 2006), and, like NHS bodies, must have regard to the NHS Constitution.

The Secretary of State for Health and Social Care also has a duty to have regard to the NHS Constitution. As an executive agency of the Department of Health and Social Care, PHE must also have regard to the NHS Constitution when exercising its functions in relation to the health service in England. This is particularly applicable when it is exercising the Secretary of State’s duty to protect public health.

These changes mean that local authority staff commissioning or providing public health services and staff in PHE need to be aware of the NHS Constitution and what it means for them.

This supplement to the NHS Constitution aims to inform shared understanding and is produced jointly by the Department of Health and Social Care, PHE and the Local Government Association (LGA).

What the NHS Constitution is

The NHS Constitution sets out the principles and values of the NHS in England, which includes public health. While it does not impose new duties or confer new rights, it brings together in one place information on what staff, patients and the public can expect. This information falls into 4 categories:

• principles – 7 principles that guide the NHS in all that it does
• values – 6 values that should underpin everything comprehensive health service providers do
• rights and responsibilities – some required by law
• pledges made by the NHS about the way it will work with patients, the public and its staff

Rather than refer throughout to ‘the NHS and local authorities exercising public health functions’, the NHS Constitution and its handbook use the term ‘the NHS’ to include local authority public health functions. It should also be noted that references to the ‘Secretary of State’ automatically include executive agencies of the department, including PHE.

However, local authorities are not NHS bodies and the NHS Constitution may have different applications to local authority public health functions, where the legal framework and local government context is quite different from other parts of the health service.

How the NHS Constitution applies to public health functions and interventions

Local authorities have a statutory duty to have regard to the NHS Constitution when exercising their public health functions under the NHS Act 2006. In particular, this means that when making a decision relating to public health functions, a local authority must properly consider the NHS Constitution and how it can be applied, in so far as it is relevant to the issue in question.

This does not mean that local authorities must apply the NHS Constitution in exactly the same way as NHS bodies do. Their health-related functions and duties are not the same as those of the NHS, but the requirement for them to have regard to the NHS Constitution does mean that they should always consider whether and how it applies to the health services that they provide or arrange.

Having due regard to the NHS Constitution in decisions about the public health system offers an opportunity to local government and PHE, to deliver benefits to the public.

The principles, values, rights, responsibilities and pledges, alongside other sources of information, evidence and advice, all provide a helpful perspective that can, for example, be focused through the work of local health and wellbeing boards on joint strategic needs assessments and joint health and wellbeing strategies.

Principles

All 7 of the key principles in the NHS Constitution are as relevant to public health functions as they are to any other health service. Local authorities and PHE must have regard to them and users of services should expect to see them put into practice.

Values

The 6 values that are intended to underpin the culture of the NHS are all also relevant to local authorities when carrying out their public health responsibilities and are already in practice. The values are intended to become integral to the culture of all NHS bodies, as well as local authorities delivering public health functions and PHE.

Rights

The rights that the NHS Constitution describes are all based in law. Some of these rights apply to everybody across the comprehensive health service, regardless of whether the organisation dealing with the patient is a NHS body or a local authority. For example, the right not to be unlawfully discriminated against and the right to receive services free of charge.

However, there are other rights that do not apply to local authorities, and where this is the case, the NHS Constitution and the handbook to the NHS Constitution makes this clear.

Responsibilities

The NHS Constitution sets out some of the things that patients and the public can do to help services work well, and these apply equally to public health functions. Some are already focused directly on people and public health – participation in health improvement and protection initiatives, for example, or taking some personal responsibility for your own and your family’s health.

Pledges

The pledges in the NHS Constitution go above and beyond the legal requirements. They set out aspirations for health and public health functions, and local authorities and PHE must have regard to them. The pledges represent things which the health service is committed to working towards achieving.

Although the pledges are not legally binding, local authorities should work towards delivering on those commitments and strive to ensure that the pledges are achieved. Among other things, the pledges cover the need to ensure smooth transitions between services and to make decisions in a clear and transparent way about the public’s health.

Staff

While NHS organisations, local authorities and PHE are different employers with different terms and conditions of service, staff working on health and public health activity have similar roles. This makes the rights, responsibilities and pledges set out in the NHS Constitution equally relevant to all 3 workforces.

What the NHS Constitution does not apply to

In some cases, the NHS Constitution does not apply to local authorities or PHE. These include:

• maximum waiting times – there are no nationally-imposed waiting times for public health functions arranged by local authorities, but the need to avoid unnecessarily long waits is strongly implicit across the rest of the NHS Constitution
• choosing a GP practice and seeing a particular doctor there – this is not something that local authorities are responsible for

Of course, much of what local authorities and PHE do under their public health duties will be focused on communities and populations rather than services to individuals.

The NHS Constitution applies to both sorts of activity – for example, it is clear on the need for population-level activity, such as assessing local needs for services, in which local authorities should engage.

Functions and staff covered by the NHS Constitution

The requirement to have regard to the NHS Constitution applies to a local authority’s exercise of its public health functions. With the growing emphasis on integration of functions it might not always be obvious to either staff or the users of a function whether or not it is ‘public health’.

It is worth noting, that the NHS Constitution contains a combination of legal rights that apply across the board and good practice that is relevant across the entirety of local authority service delivery, and which authorities are unlikely to find burdensome in any context.

In some cases, it will be clear that the local authority is exercising a specific public health function under the NHS Act 2006, such as the weighing and measuring of school children, providing contraceptive and other sexual health services or providing NHS health checks.

In other cases, the question will be whether the provision of that service is a step which the local authority is taking under its duty in section 2B of the NHS Act 2006, i.e. its duty to take such steps as it considers appropriate for the purpose of improving the health of the people in its area. The key issue therefore will be the purpose for which local authority provides the functions in question.

There will be other factors which in practice indicate whether a public health service is delivered under these new functions – for example, whether it is funded or part-funded by the local authority’s ring-fenced public health grant, whether it is one of those listed in the annex to this document, or whether the authority’s director of public health is accountable for it.

The NHS Constitution applies to the whole of PHE’s activity, but it is directly relevant to functions such as specialist health protection functions or specialist advice on health improvement and population healthcare.

What local authorities should do

Local authorities have a statutory duty to have regard to the NHS Constitution, and so need to be sure that staff who may be involved in providing or commissioning public health functions are aware of the NHS Constitution and its content.

Consideration of the NHS Constitution should be incorporated in decision-making about public health, and such consideration should be properly recorded.

Local authorities should also consider how to make sure that people who use those functions (and the wider population of those who might) know that the NHS Constitution exists as a clear guide to the standard of service they should expect.

What Public Health England should do

The PHE National Executive and its Advisory Board have committed to have regard to the NHS Constitution in their advice and decision-making.

Annex: local authority public health functions

Functions required by regulations:

• weighing and measuring children (the National Child Measurement Programme)
• universal health visitor reviews
• health check assessments (NHS Healthcheck)
• open access sexual health services (including contraception, but excluding abortion, sterilisation and HIV treatment)
• providing public health expertise and advice to clinical commissioning groups
• working with local partners to protect the health of the local population

Discretionary services can include, but are not limited to:

• tobacco control and smoking cessation services
• alcohol and drug misuse services
• public health services for children and young people aged 0 to 19
• interventions to tackle obesity, such as community lifestyle and weight management services
• locally-led nutrition initiatives
• increasing levels of physical activity in the local population
• public mental health services
• dental public health services
• accidental injury prevention
• population-level interventions to reduce and prevent birth defects
• behavioural and lifestyle campaigns to prevent cancer and long-term conditions
• local initiatives on workplace health
• supporting, reviewing and challenging delivery of key public health funded and NHS delivered services, such as immunisation and screening programmes
• local initiatives to reduce excess deaths as a result of seasonal mortality
• the local authority role in dealing with health protection incidents, outbreaks and emergencies
• public health aspects of promotion of community safety, violence prevention and response
• public health aspects of local initiatives to tackle social exclusion
• local initiatives that reduce public health impacts of environmental risks