Comprehensive treatment for all: The NHS Constitution

The proposed NHS Constitution was published on Monday as a part of a consultation process to shape the future direction of the NHS. Daniel Finklestein in today’s Times suggests that the new constitution is an irresponsible document. Some of his criticisms, however, are wide of the mark.

First, Finkelstein seems to interpret the phrase ‘comprehensive treatment for all’ to mean that everyone will have access to everything. Thus, the NHS on Finkelstein’s view aims to provide everything to everyone free of charge. Unsurprisingly, that looks difficult! ‘Comprehensive coverage’ of course can mean ‘broad overall coverage’ rather than everything. Indeed the most reasonable construal consistent with the rest of the consultation document is the broad overall coverage one.

The issue of what counts as comprehensive coverage is an important one because it leads to questions about who should decide about the relevant range of provision. Consistent with his interpretation and with analysis of the NHS Constitution given in yesterday’s Times, Finklestein seems to think that it is the customer (that is, the patient!) who should decide.

Couching such documents as these in terms of rights often brings difficulties of interpretation such as these. When we focus too heavily on the rights of individuals there is a danger of overemphasizing the role of the individual and individual choice. For instance, we need to know whether the rights in question are absolute or defeasible. That is, are there other considerations like cost or effectiveness, say, which can override them? What are the obligations of the system that follow from the rights that people have: Are they negative or positive rights?

In these respects the Consultation document is more careful that Finkelstein. Of note here is that the comprehensive coverage claim that Finkelstein attacks is not a right. Instead it is part of a high-level principle intended to govern "the way the NHS operates and define how it seeks to achieve its purpose." Calling it a principle doesn’t clear too much up but it may avoid some misinterpretation. What is more important is the rest of the principle:

The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, religion or sexual orientation. It has a duty to each and every individual that it serves. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population.

Like most principles stated at this level of generality that are vaguely worthwhile, this gestures towards the problem rather than providing us with the means to solve it. The difficult decisions that need to be made – and this is where Finkelstein is on the right track – lie in the balance between the specific and sometimes demanding needs of particular individuals and the overall, equally regarded needs of the group.

It is far from clear that this document provides the tools to adequately address this issue but it equally unclear that it is meant to do so.

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