Patient Choice – Standing Rules amended from 1 January 2024

Introduction

In line with recent developments in relation to the procurement of healthcare services, the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (‘Standing Rules’) - have been amended with effect from 1 January 2024 to include a formal accreditation process for providers seeking to be awarded an NHS Standard Contract by ICBs for services to which patient choice applies. Supplementing the amended legislation, NHS England (NHSE) has issued guidance on patient choice more widely. An annex has also been added to the NHS Enforcement guidance dealing specifically with patient choice – an area which was explicitly excluded from that guidance previously.  

We consider below the amendments made to the Standing Rules and summarise in broad terms what these new provisions introduce.

Regulation 39 amendments

A patient has a right to choice when an elective referral is made to a consultant or member of a consultant’s team in respect of the first outpatient appointment including (as now amended) any subsequent treatment required as a result of the referral. The patient has the right to choice of any ‘clinically appropriate provider’ with whom a commissioner has a ‘qualifying contract’ (no longer a ‘commissioning contract’) and to any ‘clinically appropriate team led by a named consultant who is employed or engaged by’ that provider’. For mental health services, the choice applies in respect of a ‘clinically appropriate team led by a named health care professional’. 

The amendment to Regulation 39 updates the previous reference to a commissioner having a ‘commissioning contract for the service required as a result of the referral’ to ‘qualifying contract’. A qualifying contract is an NHS Standard Contract which, in summary is:

1. signed and in effect before the referral;
2. a commissioning contract for the service required as a result of the referral;
3. requires services to be required from a specified location or other criteria to make the service accessible; and
4. not in place solely to provide the service to a specified individual.

Where a patient is exercising their right to choice in respect of an elective referral, no commissioner approval is required in advance, regardless of whether or not the commissioner has an existing contractual relationship with the provider. 

Regulation 42A

This new regulation applies to choice in primary care. Broadly, it states that NHSE cannot restrict a person’s ability to apply for inclusion on a patient list or express a preference to receive services from a practice or ‘a particular performer.’

Regulation 42B

This new regulation is applicable to a decision of a commissioner as to whether to offer an NHS Standard Contract to a provider either where the legal right to choice applies (in accordance with regulation 39) or where the commissioner has not restricted the number of providers from which patients may choose. 

Regulation 42B confirms:

• A provider can express an interest to a commissioner at any time in being assessed for the award of an NHS Standard Contract.
• Where a provider expresses such an interest, the commissioner must make available to that provider any local terms and conditions for inclusion in any supporting schedules of an NHS Standard Contract it proposes to award as a result of an assessment under regulation 42.
• Once that information has been made available, a provider can request an assessment against the criteria at 42C for the purposes of:
  • An award of an NHS Standard Contract if the provider doesn’t have an existing one with the commissioner.
  • The award of a further contract where it does have one but it wants to be assessed for the provision of new services, for existing services at a location other than the one specified in its existing NHS Standard Contract, or a change to criteria specified in that contract which determine the means by which the service will be accessible to patients.
• The assessment must be carried out as soon as reasonably practicable, but in any event within 6 weeks of the request.
• If the criteria are met, the provider must be offered an NHS Standard Contract.

Regulation 42C and 42D

This new regulation sets out the criteria for the assessment described in regulation 42B which are:

• The provider must be registered within CQC
• The provider must have a provider licence (unless exempt)
• The provider must demonstrate to the satisfaction of the commissioner that it will be able to comply with the terms and conditions of the NHS Standard Contract in respect of the services to be provided and in relation to the location from which they will be provided
• The provider must have certain specified indemnity arrangements in place.

Regulation 42D applies the same rules of assessment to the modification of an existing NHS Standard Contract – but note that the modification has to be done with the agreement of the provider.

Regulations 43A and 43B 

These Regulations deal with transitional arrangements for existing (AQP) contracts with providers (any entered into before 1 January 2024). Nothing in Regulation 42 applies to these contracts, other than the rules relating to modifications, which will apply to modifications made post 1 January 2024. It also confirms that NHSE can investigate any existing complaint made against an ICB under NHS Procurement (Patient Choice and Competition) (No 2) Regulations 2013 prior to their repeal where grounds for the complaint occurred before 1 January 2024 and the investigation has not been concluded before that date, treating that complaint as though it were an investigation under section 6F of the NHS Act 2006 (in force from 1 January 2024).

Enforcement 

Annex A to the NHS Enforcement Guidance confirms how NHS England will exercise its powers to oversee and take enforcement action in relation to ICB compliance with patient choice requirements. These powers apply in relation to patients’ rights to choose under the Standing Rules – so both where there is a legal right to choice and where choice is otherwise offered on an unrestricted basis by the commissioner. The guidance uses the term ‘patient choice requirements’ to refer to both scenarios. 

NHSE can investigate on its own initiative or where it receives information from another source, and outcomes following an investigation can include no action or informal action; undertakings; or, as a last resort giving a direction to an ICB. Where a provider has a complaint about its qualification under patient choice provisions it can seek input from the Choice Provider Qualification Complaints Panel which will make recommendations about NHSE’s use of its investigation and enforcement powers in relation to the complaint. 

Have you got a question on the guidance from NHS England, or the amendments to the Standing Rules? Talk to us today…