NHS England (“NHSE”) issued new guidance on patient choice on 19 December 2023 (the “New Guidance”) which can be found here. 

The New Guidance replaces previous publications by NHSE in relation to Patient Choice and reflects amendments to Part 8 of  The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. Those amendments  came into force on 1 January 2024.

The New Guidance is separated out for commissioners, primary care referrers, providers of elective services and NHSE.

The New Guidance details existing duties on commissioners and providers in relation to patient choice (including the duty to offer an alternative provider, and to promote patient choice), but also addresses the following new key areas / clarifications:

Duty to ensure patients are offered a choice of provider and team:

The New Guidance makes clear that where a patient requires a physical or mental health referral patient choice applies to the first outpatient appointment and any subsequent treatment required as a result of that elective referral.

The guidance also clarifies that a provider must hold a ‘qualifying contract’ (i.e., an NHS Standard Contract) to be a choice for patients. It also confirms that the terms of the provider’s qualifying contract will apply to the commissioning of the service even where the commissioner does not hold the contract.

Qualification of providers:

A key amendment to the Standing Rules Regulations is the requirement for commissioners to put in place arrangements for providers to qualify for and secure NHS Standard Contracts for the provision of elective services (or other services where the commissioner offers unrestricted choice) where patient choice applies[1]. This broadly replicates the regime under the NHS (Procurement, Patient Choice and Competition) Regulations 2013.

The New Guidance sets out the qualification process in detail but in summary, providers can now ask a commissioner to assess it in relation to:

• the award of a new NHS Standard Contract where the provider does not have an existing contract with the commissioner; or 
• where the provider has an existing NHS Standard Contract with the commissioner, for the award of a further contract in relation to the provision of:
• new services;
• existing services from a new location; or
• a change in the criteria which determines how patients will access the service. 

The guidance details the criteria which commissioners must apply when assessing a provider. If a provider meets the qualifying criteria, commissioners must offer the provider a contract. The New Guidance also confirms that commissioners must use Direct Award Process B under the Provider Selection Regime (“PSR”) to award the contract.

Right to modify an existing contract:

In addition to the qualification process detailed above, providers can also ask commissioners to modify an existing NHS Standard Contract in relation to:

• new services;
• existing services from a new location; or
• a change in the criteria which determines how patients will access the service. 

Providing that the provider meets the qualifying criteria (detailed above), and the proposed modification(s) would not be in breach of the PSR, the provider’s contract must be modified. 

Complaints:

The New Guidance also sets out the newly established Choice Provider Qualification Complaints Panel which will consider complaints from providers who consider that a commissioner has not properly assessed them against the qualification criteria which cannot be resolved by the National Choice Team. 

If you have any questions or would like to discuss this article, please contact Patrick.Parkin@burges-salmon.com or your usual Burges Salmon contact. 

This article was written by Lisa Mulholland and Patrick Parkin.

[1] The amendments to the Standing Rules Regulations 2012 seek to preserve the provisions relating to patient choice under the NHS (Procurement, Patient Choice and Competition) Regulations 2013 which have been revoked following the implementation of the Provider Selection Regime.