Since 19 January 2010, all NHS organisations have been legally required to follow the provisions set out in the Health Act 2009 relating to the NHS Constitution (Constitution). The key legal obligations for NHS organisations include:

  • when performing any NHS function, organisations now have a legal duty to “have regard to the Constitution”; and
  • requiring all providers (both public and independent sector) of NHS services commissioned by an NHS organisation to be aware of their duty to also have regard to the Constitution.

Whilst the wording of the obligation to ”have regard to the Constitution” is somewhat vague, we advise that as a minimum the wording requires NHS organisations and providers of NHS services, when making decisions on the performance of NHS functions, to show that they have considered the principles of the Constitution. However, the true extent of this obligation will not be established clearly until it is tested in the courts.

The practical effect of this is that if a decision by an NHS organisation departs from the Constitution, that organisation must have good reasons for such departure. Therefore, it will be necessary for NHS organisations to put in place robust processes/procedures to ensure that records are made demonstrating that the Constitution has been noted and complied with and similarly, contract clauses that require the same consideration from providers of NHS services. The NHS Constitution and the Health Act can be accessed here.