UT/2023/000021 - [2024] UKUT 00334 (TCC)

That is similarly why the Trust’s points regarding the NHS constitution and the Trust’s own constitution do not assist either. The Trust’s case does not explain in what respect any obligations arising from such documents mean that the way in which an NHS Foundation Trust provides the services to local authorities is different. As explained in the NHS Constitution, it:

“…establishes the principles and values of the NHS in England. It sets out rights to which patients public and staff are entitled , and pledges which the NHS is committed to achieve, together with responsibilities, which the public, patients and staff owe to one another to ensure that the NHS operates fairly and effectively…”

The NHS Constitution also states in its introduction that “…all NHS bodies, private and voluntary sector providers supplying NHS services, and local authorities in the exercise of their public health functions are required by law to take account of this Constitution” and that “references to NHS services include local authority public health services”. The parties were unable to assist us on the particular legal provision which extended its application to private providers, albeit it seems that the Constitution itself is envisaged to have a wider impact than simply on NHS bodies. That appears to be borne out for instance in the contract for integrated Sexual health service that includes the NHS Services Condition “SC1 compliance with the Law and NHS Constitution” under which the parties “must abide by and promote awareness of the NHS constitution including the rights and pledges set out in it” and the obligation on providers to ensure that all sub-contractors and staff abide by it too.

As regards the Trust’s constitution, the principal purpose clause at article 3 relied upon simply reflects s43 of the 2006 Act. That provision was also referenced in Northumbria ([124]) in relation to what the trust there was empowered to do. However, the reference was not sufficient to constitute a special legal regime but merely the context for Court of Appeal’s specific analysis (at [125]) regarding the particular constraints in the Parking Principles at issue in that case, the court noting that their requirements for safety, convenience, and economic accessibility were not applied to the private car parking operators (whose starting point was considerations of revenue maximisation and profitability).