The National Health Service draft Constitution was published yesterday by Health Secretary Alan Johnson, who urged “everyone with an interest in preserving what's best about the NHS, as well as ensuring that it is fit for the future,” to participate in the 14-week consultation which began immediately.

The draft Constitution, which is the first of its kind in the world, brings together in one place and clarifies for staff and patients, for the first time, their rights and responsibilities. In particular, it makes clear the responsibilities of primary care trusts to provide patients with treatments recommended by the National Institute for Health and Clinical Excellence, if appropriate.

The draft is in fact a short declaratory document which is “not set in stone but is a good basis for further consultation,” said Mr Johnson. “I think it strikes the right balance between the need for clarity and avoiding undue litigation, between the need to state what is enduring while ensuring the NHS has the flexibility to change and keep pace with rising expectations and medical advance,” he added.

The Health Secretary also emphasized that the draft Constitution content “was not dreamt up by me or civil servants in Whitehall. It is something that has arisen out of discussions with thousands of NHS staff and patients across the country.”

For patients, the Constitution collects together important rights, including:

- the right to drugs and treatments approved by NICE for use in the NHS if clinically appropriate. Patients will also have a right to expect local decisions on funding of other drugs, where NICE has yet to issue guidance or where NICE will not be appraising a drug, to be made rationally following proper consideration of the evidence. If the local NHS decides not to fund a drug that a patient and their doctor feel would be right for them, the PCT will have to explain that decision to them. The government says that it will also work with NICE to speed up the process for appraising new drugs so that it can issue the majority of its appraisal guidance within a few months of a new drug's launch;

- the right to make defined choices about NHS care with clear options. This is a new legal right which seeks to enable patients to make choices about their healthcare based on information made easily accessible by the NHS, including the right to choose their general practice and express a preference for consulting a particular doctor;

- the right to be treated with dignity and respect and given a professional standard of care, by appropriately qualified and experienced staff in a clean and safe environment; and

- the right to complaint and redress. The Constitution sets out a number of rights and pledges to ensure patients and the public are able to make complaints and get access to swift redress if they are unhappy with their healthcare. The government emphasises that “we do not want to create a litigious culture with the development of an NHS Constitution, but we do want to ensure that it has enough teeth to make a difference.”

The draft also stresses the importance of patients playing their part and recognizing their responsibilities. Patients will still be treated based on clinical need, but there will be an onus on them to contribute to their own good health and take some personal responsibility. Patients will also be expected to register with a GP and keep appointments, or cancel within a reasonable time.

For staff, the draft constitution outlines a series of pledges which, the government says, the NHS will “strive" to deliver, to ensure that staff are provided with rewarding jobs and with the training and support they need to do their jobs as well as they can.

All the rights and pledges contained in the draft are underpinned by existing law or policy, except the new right to choice. The government will be obliged by law to renew the NHS Constitution every ten years, and a new legal duty will be placed on all NHS organisations to take account of the Constitution in decision-making.

Speaking ahead of the draft's launch at the weekend, Mr Johnson pledged to end the “post-code lottery” in access to NICE-recommended drugs, and said that £100 million would be provided to ensure their supply. Critics cautioned that the requirements on PCTs to provide such treatments must be spelt out clearly and not open to interpretation, while others have warned of the economic implications for the nation’s drugs bill of guaranteeing access to advanced and expensive new treatments for every patient who would benefit from receiving them.