Right to Choose

If a GP needs to refer an NHS patient for a physical or mental health condition, in most cases patients have the legal right to choose the hospital, service or team they would like to go to for elective care. The GP firstly has to decide if it is clinically appropriate to make a referral.

Further information regarding right to choose is available at: https://www.nhs.uk/using-the-nhs/about-the-nhs/your-choicesin-the-nhs/

Patients are entitled to choose any provider, including private or independent providers in England, that holds a relevant NHS commissioning contract for the services they require and is considered clinically appropriate by their referrer.

The legal rights to choice of provider and team only apply when the:

• Patient has an NHS elective referral for a first outpatient appointment
• Patient is referred by a GP, Dentist or Optometrist. Patients cannot self-refer.
• Referral is clinically appropriate (as determined by the referrer)
• Provider service and team are led by a consultant (physical and mental health) or a mental healthcare professional (mental health only)
• Provider has a commissioning contract with any ICB or NHS England for the required service.

Right to choose does not apply to patients:

• Who have self-referred
• Already receiving care following an elective referral for the same condition
• Referred to a service that is commissioned by a local authority (not part of a joint commissioning arrangement) or delivered through primary care
• Accessing urgent or emergency (crisis) care
• Serving as a member of the armed forces
• A prisoner, detained in hospital under Mental Health Act 1983 or a secure service.

No. If the choice criteria are met and a service is commissioned anywhere in England under an NHS commissioning contract (and no other exceptions to the legal right to choice of provider and team apply to the referral), then the legal right to choose applies, regardless of whether the responsible commissioner directly contracts the chosen service/provider or provides similar services locally.
However, under RTC, the private provider is only allowed to provide the service which has been commissioned by the NHS under the terms of the original NHS contract.

The rules are not place based, so a referral to secondary services can include those services provided in the community (where other conditions to the legal right apply).

No, the right to choice applies to both physical and mental health care once a patient has chosen a provider, that provider will normally treat the patient for their entire episode or spell of care, unless the patient’s diagnosis changes significantly or care is transferred back to primary care. Assessment services, such as adult autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) assessment services are within the scope of the legal right to choose. Further information is available in the NHSE guidance regarding Choice in Mental Health Services.

No prior commissioner approval is required for referrals where the patient has exercised choice of provider under their legal rights. However, GPs are expected to comply with any ICB commissioning policies and only refer in line with these, and will need to understand exactly what NHS service the patient will receive before they refer into the service. Where initiatives such as Clinical Assessment Services or Single point of Access (SPA) are put in place, these should not obstruct the patient’s legal rights. In these circumstances choice should be offered at the most appropriate point in the pathway prior to an elective referral.

No patients cannot self-refer to a private provide under RTC.

A patient can be referred by a GP, Dentist or Optometrist. These categories of healthcare professionals are listed in the NHS Responsibilities and Standing Rules Part 8 as those who are legally able to refer patients under right to choose. For mental health services, this would be limited to the patient’s GP.

The legislation does not include Pharmacists and therefore Pharmacists cannot refer patients under RTC themselves, however if the patient is registered with a GP at the practice or PCN where the Pharmacist is working, they may be able to refer patients on behalf of their GP, according to locally agreed referral protocols and processes. However, in this instance the patient’s GP would remain the responsible referrer and must ensure that any such referrals on their behalf are clinically appropriate.

If you are satisfied that the patient meets the criteria for referral for the indication under investigation and the private provider:

• Holds an NHS commissioning contract for the services required
• The request is clinically appropriate and
• You know what service will be provided by the private provider.

Then the patient should be referred to the private provider.

The referrer (GP, Dentist or Optometrist) determines whether a referral is clinically appropriate. There may be several considerations which go into this assessment, for example a patient’s comorbidities, whether the patient is suitable for an online assessment or requires a face to face assessment, pathways of care, ongoing prescribing responsibilities etc. and any local commissioning policies.

No – RTC does not apply to choice of treatment. However, once a patient has been referred under right to choose to a private provider and accepted as a patient, the patient must be treated in accordance with the specification in the host or original commissioner contract.

No – the GP retains the right to not agree to shared care if they feel the request is not clinically appropriate, or if they do not feel clinically competent to do so.

Both the provider and the patient’s GP should ensure requests for shared care are in accordance with the GMC Good Prescribing practice principles.

If the GP is uncertain about their competence to take responsibility for the patient’s continuing care, they should ask for further information or advice from the clinician who is sharing care responsibilities, or from another experienced colleague. If they are still not satisfied and unwilling to accept responsibility for the prescribing under shared care, then the GP should explain this to the specialist clinician and to the patient, including the implications.

Ideally the patient should follow the same pathway as agreed in the original contract with the host commissioner. Appropriate arrangements for continuing care should be agreed between the patient, their GP, the private provider and the local commissioner.

No – the clinical thresholds for referral and diagnosis should be same regardless of the provider being used. For ADHD and attention deficit disorder (ADD) current NICE clinical criteria for diagnosis and referral can be found in the appropriate NICE Clinical Knowledge summary and some ICBs may have local commissioning policies/referral thresholds in place. If you have concerns that clinical thresholds being utilised by the provider are not in accordance with national guidance, then this should be discussed with the host commissioner (ICB) in the first instance.

If the indication and clinical pathway is likely to require ongoing treatment then this should be considered and agreed as part of the initial contract negotiations and included in the contract. The NHS Standard Contract conditions and particulars should stipulate that any treatment should be in accordance with national guidance (i.e. NICE guidance) where applicable.

Treatment outside of national guidance should only be considered by exception and approval sought by the provider from the responsible ICB, prior to the treatment being initiated, unless this has been specifically agreed as part of the original contract terms.

Ideally the clinical pathway in the host ICB contract should include the type and need of ongoing care, including details of the allowed medicinal products and devices and associated terms. The provider must adhere to the terms of this contract for all the patients who are referred to them regardless of patient’s responsible ICB.

The patient is not automatically entitled to NHS treatment under Right to Choose.

If a patient commences treatment privately, provided the patient’s clinical circumstances are within those defined in the ICB’s commissioning policy, the patient is entitled to transfer and return to NHS funded treatment at any stage. However, they should not gain advantage over patients who have been waiting to be seen on the NHS. Patients choosing to return to NHS care will need to be referred to an NHS provider and may need to wait to be seen if the service is oversubscribed.

If a patient has commenced treatment privately for a drug or other medical intervention that the ICB routinely agrees to fund, it is not permissible to enter into shared-care arrangements with a private provider for on-going GP/NHS prescribing where it is necessary for patients to continue to be seen by the specialist private provider for as long as treatment is required e.g. ADHD where an annual medication review by the specialist is required to comply with NICE.

The patient must transfer back into a complete NHS pathway, which includes NHS contracted providers.

Independent Healthcare providers are regulated and inspected by the Care Quality Commission (CQC), where they provide services which CQC regulate, in the same way as NHS Providers. Further details are available on the CQC website. In addition, the host commissioner is responsible for overall contract monitoring and the non-contract activity (NCA) commissioner for the implied contract when referrals are made via this route.

The host ICB is responsible for ensuring that the private provider is providing the contracted services in accordance with the terms of the contract and to agreed quality standards. Any NCA commissioner must ensure that there is an appropriate NHS contract in place with the provider and monitor the non contract activity for their system. If the NCA commissioner is concerned about the agreed terms or the quality and appropriateness of the service being provided, they should contact the host commissioner to discuss their concerns in the first instance.

Where a commissioner receives an invoice for the first time from a provider for which it does not have a written contract, they should check the basis on which that invoice is being submitted before making any payment in respect of that invoice. The commissioner needs to check that the provider does indeed hold an NHS Standard Contract with another NHS commissioner, which properly entitles it to provide those specific services to the original commissioner’s patients on a NCA basis. A provider wishing to provide services on an NCA basis must, on request, share with the NCA commissioner full details of the written, signed contract/contracts it holds with another commissioner/other commissioners and on which it is relying in order to undertake NCA.

No – the commissioned service must be provided to patients from the location as specified in the original host contract. However, by their very nature, virtual assessment and treatment services can be provided to any geographical location across England and therefore the original contract can lawfully be applied on a RTC basis to patients from anywhere in England if they are referred correctly.

Yes – an ICB can establish their own contract with the relevant provider. Having a written contract will always be more robust and clearer than having an implied contract on an NCA basis. There will be less scope for misunderstanding and dispute with a written contract in place. Written contracts, using the NHS Standard Contract format, should be put in place by commissioners with a provider in all cases where there are established flows of patient activity with a material financial value.

Yes. Right to choose can be applied to any indication or clinical pathway, where the relevant criteria are met.

The NHS Choices Framework asks all referrers to ensure they shortlist on average 5 choices from which the patient may choose, where this is practicable, clinically appropriate and preferred by the patient.