The Commission Pages

1.1 The NHS is the outstanding example of a successful public institution. Despite this it has suffered from systematic underfunding throughout its history and has never resolved the tensions over how it should be properly accountable to its users and the wider public. Formally, the Secretary of State for Health is responsible for running the NHS and making its policy in England, and in theory she or he is accountable to the House of Commons, and through MPs, to the electorate. Within the Department of Health, an NHS Executive is responsible for the day-to-day administration of the service. Senior civil servants at the Department of HealthRichmond House formally advise the Health Secretary and ministers on major decisions over health priorities, spending, pay and managerial issues, but in effect often take such decisions themselves. The Health Service Commissioner acts as an external ombudsman reporting to parliament over complaints and best practice, and the National Audit Office and the Public Accounts Committee of the House of Commons scrutinise the use of public funds.

1.2 However, the Health Secretary alone is the formal guardian of the public interest in the NHS. Scotland and Wales have won powers with devolution to decide on different health priorities from Westminster, but within an overall "block" allocation of spending decided by the Treasury. In addition Scotland has the power to introduce primary health legislation. The arrangements in Northern Ireland have yet to be finalised, pending the establishment of the new constitutional settlement if a peace agreement can be achieved.

1.3 Representations by interested organisations are made to the Ssecretary of Sstate, who is responsible for the establishment of the public interest in health care. Yet while overall spending decisions are made centrally, resource allocation decisions within broad parameters are actually made locally by health authorities, a role soon to be assumed by Primary Care Groups and Trusts. This results in, for example, the inequities thrown up by post-code prescribing where eligibility for treatment depends on the health authority area in which you live.

1.4 The public is ever more ready to debate whether the right decisions over health are being made, and to challenge them when it considers they are not. There has, for example, been a resurgence of local campaigns against proposed hospital closures. This has risen in part from deep trends in British society and culture:; individuals are much more readyreadier to challenge authority, to insist on redress of grievances and to resort to law to pursue their rights. No longer can doctors, clinicians, health managers and politicians decide what they consider to be the public interest in health to be behind closed doors with only nominal consultation, and expect their decisions to remain unchallenged. The case of Child B_ is just one example where a health authoritiey's judgement about health priorities was challenged in the courts; the growing number of patient complaints is another. The man or woman from Whitehall, the local health manager and even the surgeon is no longer felt to always know best.

1.5 This trend interacts with a growing insistence that health care must correspond to the best available practice. Whether in faulty breast screening or surgical mishaps, the public is no longer willing to be docile about medical mistakes. It wants compensation and bad doctors struck off the register. It wants proper investigation into mistakes, and recommendations about reformed procedures to be transparently and rapidly put in place. Patients are increasingly willing to protest about poor care - ranging from admissions procedures to treatment and convalescence.

1.6 The rapid pace of drug, technological advance and surgical development has opened up new medical possibilities and increased the cost pressures upon the NHS. A richer population expects to see public health care matching the same standards, wealth and choice that are available in the private sector, while remaining profoundly attached to the NHS as a public institution. It does not view private insurance or privatisation of health care as desirable alternatives to the tax-financed NHS. The judgements by health professionals and ministers are being challenged and increasingly contested in areas ranging from gender reassignment to cancer treatment.

1.7 There is also growing concern about health inequalities, exacerbated by wider inequalities in society and the power of particular lobbies and corporate power to secure their interests. The drug company Pfizer, for example, recently successfully challenged the capacity of the Health Secretary to issue blanket instructions to GPs to stop them from prescribing Viagra; instead such instructions now have to be legally executed by changing regulations to schedule the drug.

1.8 The emergence of a few very powerful drug companies and their capacity to influence clinical priorities and treatments is one problem; another is how powerful single issue lobby groups have managed to secure scarce resources while others - mental health, for example - remain Cinderellas. Health experience has always been closely related to income, but the current levels of income inequality are now generating widening and alarming health inequalities. It is well established that the middle classes benefit most from the clinical and other care that the NHS offers as well as being generally more healthy than less well-off groups in society. Yet at the same time the service benefits from their more demanding and critical evaluation of its standards of care. One of the dangers of the emerging crisis is that they may be driven more and more into the private sphere, except for the most acute services, leaving most of the NHS as a second-rate rump. How can the NHS remain a truly national service, serving all the British people, while its services and care are also more equally distributed - and more is done to raise the health standards of working class people and disadvantaged groups?

1.9 These are not the only concerns the government must satisfy. There is a growing range of high visibility issues with health implications ranging from the recent BSE crisis to the debate over the potential dangers of genetically modified foods. The difficulty is that the government is suffering the other side of the coin of the accountability and legitimacy gap; it is simply no longer believed or trusted on such issues. The judgements of government scientists are disputed, and even routine warnings to asthma sufferers over potential smog risks are regularly ignored.

1.10 In short, a gap has opened up between government and citizen over health care that urgently needs to be closed. The NHS needs to be more accountable, not just to improve its legitimacy, but also to ensure that its decisions correspond to those that the community wishes to make for itself. - and wWhere there are divergences it should to open up a debate that allows everybody to be educated about the issues. A number of submissions to the Commission from professional associations in the NHS have stressed their concern that patients need to be better informed about health issues, so that they understand , for example, the consequences of "no-shows" for appointments or inappropriate abuses of the system. While there has been a general welcome for Patients' Charters as a way of raising the awareness of the public about their rights in the NHS, some NHS staff and professionals have voiced dissatisfaction. There is no reciprocal requirement on patients to use the NHS responsibly and it is felt that they encourage patients to have unrealistic expectations. There is no requirement on patients to, for example, let health staff know if appointments cannot be kept, return equipment when it is no longer needed, or inform their surgery when they change address.

1.11 There is a more general official concern that "Do Not Attends" (DNAs), which in some parts of the NHS constitute up to 20 per cent of appointments, are raising costs and represent a casual attitude by patients towards their own responsibilities, suggesting the public is too feckless to deserve more empowerment. However, research_ _ shows that while "forgetting" plays an important part in DNAs, forgetfulness is in part explained by long waiting times, poor systems for telling and reminding patients of their appointments and difficulties encountered in trying to cancel appointments - general system failures. Some hospital initiatives to reduce DNAs have been abandoned because they are not cost-effective. The numbers of hard core offenders is small. DNAs do not undermine the case for making the NHS more accountable; rather they reinforce it.

1.12 For their part, patients increasingly refuse to be treated as subjects of a paternalistic health service; they want voice, influence over decisions that affect them and redress for their grievances. They want the NHS to look out for their individual concerns. There is a growing temptation to turn to the courts and the language of human rights to fill the gap.

1.13 There is no doubt that the concept of individual rights has a valuable role to play in securing justice and fairness in particular cases in the National Health Service. There might well also be occasions where the assertion of rights such as the right to life or the right to security of the person (both to be found in the Government's recently enacted Human Rights Act) provide an important means of improving the quality of NHS provision for the general public. But it would be a mistake to see reliance on the courts and human rights as a substitute for thinking hard about issues of principle relating to the public interest and to the proper accountability and therefore the legitimacy of the National Health Service. The assertion of individual rights through litigation is no substitute for the expression of the public interest through collective decision-making rooted in democratic choices, thoroughly canvassed social preferences and with built-in checks, balances and processes of accountability.