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PART 8E+WStanding rules: choice of health service provider

InterpretationE+W

38.  In this Part—

[F1“elective referral” means referral by—

(a)

a general medical practitioner,

(b)

a general dental practitioner, or

(c)

an optometrist,

to a health service provider, including when the referral is first assessed by a person providing interface services, for treatment that is not identified as being immediately required at the time of referral;]

F2...

[F3“interface services” means services that are provided otherwise than by—

(a)

a consultant,

(b)

a consultant-led team, or

(c)

a health care professional specialising in mental health services,

which provide clinical triage, assessment and treatment services, but does not include services provided under a primary care contract;

“NHS Standard Contract” means a contract in the form of a model commissioning contract drafted by NHS England pursuant to regulation 17(2);]

“prison” includes any other institution to which prison rules made under section 47 of the Prison Act 1952 M1 apply.

Textual Amendments

Marginal Citations

Duty to ensure persons are offered a choice of health service providerE+W

39.—(1) A relevant body must make arrangements to ensure that a person—

(a)who requires an elective referral; and

(b)for whom that body has responsibility,

is given the choices specified in paragraph (2).

[F4(2) Subject to regulations 40 and 41, the choices specified for the purposes of this paragraph are the choice—

(a)in respect of a first outpatient appointment with a consultant or a member of a consultant’s team [F5, inclusive of any subsequent treatment required as a result of that elective referral], of—

(i)any clinically appropriate health service provider with whom any relevant body has a [F6qualifying contract], and

(ii)any clinically appropriate team led by a named consultant who is employed or engaged by that health service provider; and

(b)in relation to an elective referral for mental health services in respect of which the patient’s first outpatient appointment is not with a consultant or a member of a consultant’s team [F7, inclusive of any subsequent treatment required as a result of that elective referral], of—

(i)any clinically appropriate health service provider with whom any relevant body has a [F8qualifying contract], and

(ii)any clinically appropriate team led by a named health care professional who is employed or engaged by that health service provider.]

F9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The arrangements referred to in [F10paragraph (1)] must include such arrangements as are necessary to ensure that a person may make the choices specified in [F11that paragraph] where that person—

(a)has not been offered that choice by the person making the initial referral; and

(b)notifies the relevant body who has responsibility for that person that that choice was not offered.

(6) For the purposes of this Part, a health service provider, or a team led by a consultant or a health care professional, is clinically appropriate if, in the opinion of the person making the referral, they offer services that are clinically appropriate for that person in respect of the condition for which that person is referred.

[F12(7) Where—

(a)a person makes a choice pursuant to the arrangements required by paragraph (1), and

(b)the relevant body which is responsible for that person does not have in place a commissioning contract for the service required as a result of the referral,

the terms of the qualifying contract referred to in paragraph (2) under which the service is to be provided apply to the provision of the service required in respect of the person’s referral.

(8) In this regulation, “qualifying contract” means an NHS Standard Contract which—

(a)is signed and in effect before the date on which the referral is made,

(b)is a commissioning contract for the service required as a result of the referral,

(c)requires that service to be provided from the location specified in that contract or sets out the criteria specified in that contract which determine the means by which a service will be accessible to patients, and

(d)is not a contract put in place solely to provide that service to a specified individual.]

Textual Amendments

Services to which the duties as to choice do not applyE+W

40.—(1) Regulation 39(1) does not apply to the following services—

(a)cancer services which are subject to the 2 week maximum waiting time by virtue of regulation 52; [F13or]

(b)maternity services; F14...

F15(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) [F16Regulation 39(1) does] not apply to any service where it is necessary to provide urgent care.

Textual Amendments

Persons to whom the duties as to choice do not applyE+W

41.  [F17Regulation 39(1) does] not apply in relation to any person who is—

(a)detained under the 1983 Act;

(b)detained in or on temporary release from prison [F18or other accommodation described in regulation 10(2)]; or

(c)serving as a member of the armed forces.

Textual Amendments

Duty to publicise and promote information about choiceE+W

42.—(1) A relevant body must make arrangements to ensure that the availability of choice under the arrangements it makes pursuant to regulation 39 are publicised and promoted.

(2) Without prejudice to the generality of paragraph (1), those arrangements must include arrangements for—

(a)publicising, and promoting awareness of, information about—

(i)health service providers for the purpose of enabling a person to choose a health service provider in accordance with arrangements that the relevant body has made pursuant to regulation 39(1),

(ii)consultant-led teams for the purpose of enabling a person to choose a clinically appropriate team in accordance with arrangements that the relevant body has made pursuant to regulation 39(1), and

(iii)teams led by health care professionals providing mental health services for the purpose of enabling a person to choose a clinically appropriate team in accordance with arrangements that the relevant body has made pursuant to [F19regulation 39(1)]; and

(b)publicising details, and promoting awareness, of where that information may be found.

Textual Amendments

[F20Patient choice: primary medical services E+W

42A.—(1) NHS England must not restrict the ability of a person—

(a)to apply for inclusion in the list of patients of the practice of the person’s choice;

(b)to express a preference to receive services from—

(i)the practice in whose list of patients the person is included, or

(ii)a particular performer or class of performer,

either generally or in relation to any particular condition.

(2) Paragraph (1) does not apply to the inclusion in a contractor’s contract of any term which provides for the contractor to refuse an application for inclusion in its list of patients, or not to agree to any preference expressed to receive services from a particular performer or class of performer, in accordance with—

(a)Part 2 of Schedule 3 to the National Health Service (General Medical Services Contracts) Regulations 2015 (other contractual terms - patients: general),

(b)Part 2 of Schedule 2 to the National Health Service (Personal Medical Services Agreements) Regulations 2015 (other required terms - patients: general), or

(c)arrangements for the provision of primary medical services made under section 83(2) of the 2006 Act (primary medical services).

(3) In this regulation—

“contract” means, as the case may be—

(a)

an arrangement for the provision of primary medical services made under section 83(2) of the 2006 Act, including any arrangements which are made in reliance on a combination of that provision and any other powers to arrange for the provision of health care services for the purposes of the NHS,

(b)

a general medical services contract made under section 84(1) of the 2006 Act (general medical services contracts), or

(c)

an agreement made in accordance with section 92 of the 2006 Act (arrangements by the Board for the provision of primary medical services);

“contractor” means a person who has entered into a contract with NHS England;

“the NHS” means the comprehensive health service continued under section 1(1) of the 2006 Act, except the part of it that is provided in pursuance of the public health functions (within the meaning of that Act) of the Secretary of State or local authorities;

“performer” means a medical practitioner included in a list maintained in accordance with regulations made under section 91(1) of the 2006 Act (persons performing primary medical services);

“practice” means the business operated by a contractor for the purposes of delivering primary medical services under Part 4 of the 2006 Act under a contract for the provision of such services.

Textual Amendments

Requests for NHS Standard Contract assessment E+W

42B.—(1) This regulation applies in relation to a decision by a relevant body as to whether it should offer an NHS Standard Contract to a provider where the service being offered by the provider is one which the relevant body arranges or intends to arrange for the persons for whom it has responsibility and in respect of which (if that provider held such a contract) a patient would be permitted to choose that provider as a provider—

(a)in accordance with regulation 39, or

(b)otherwise than in accordance with regulation 39 where the relevant body has not restricted the number of providers from which patients may choose.

(2) A provider may express an interest to a relevant body at any time in being assessed for the award of an NHS Standard Contract under this regulation.

(3) Where a provider expresses an interest under paragraph (2), the relevant body 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 this regulation.

(4) Following the provision of any local terms and conditions under paragraph (3) (or confirmation from the relevant body that no such terms and conditions are to be included), a provider may request a relevant body to assess it against the criteria in regulation 42C for the purposes of—

(a)the award of an NHS Standard Contract where the provider does not have an existing NHS Standard Contract with the relevant body, or

(b)the award of a further NHS Standard Contract where the provider already has an existing NHS Standard Contract with the relevant body, but wishes to be assessed in relation to—

(i)the provision of new services,

(ii)the provision of existing services from a location other than that specified in the existing NHS Standard Contract, or

(iii)a change to the criteria specified in that contract which determine the means by which a service will be accessible to patients.

(5) The relevant body must assess a provider who has made a request under paragraph (4) against the criteria in regulation 42C as soon as reasonably practicable but in any event before expiry of a period of six weeks beginning with the day on which the provider has requested to be assessed against those criteria.

(6) Where the criteria in regulation 42C are met, the provider must be offered an NHS Standard Contract, which must include any local terms and conditions referred to in paragraph (3).

Textual Amendments

Qualification of providers: criteria E+W

42C.  The criteria referred to in regulation 42B(4) to (6) are that—

(a)the provider must be registered with the Care Quality Commission under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the regulated activities which are relevant to the services to be provided;

(b)the provider must, unless exempt, hold a provider licence issued by NHS England under Chapter 3 of Part 3 of the 2012 Act;

(c)the provider must demonstrate to the satisfaction of the relevant body that it will be able to comply with the terms and conditions of the NHS Standard Contract, including those in any supporting schedules, in respect of the services to be provided and in relation to the location from which those services will be provided;

(d)the provider must demonstrate that it—

(i)is a member of an NHS Clinical Negligence Scheme under the National Health Service (Clinical Negligence Scheme) Regulations 2015 or the National Health Service (Clinical Negligence Scheme for General Practice) Regulations 2019,

(ii)has undertaken to join such a scheme, or

(iii)has put in place equivalent alternative indemnity arrangements to the satisfaction of the relevant body.

Textual Amendments

Modification of existing NHS Standard Contract E+W

42D.—(1) Regulation 42B(1) to (3) and (5) also applies to the assessment of a provider in respect of a proposed modification of an existing NHS Standard Contract held by that provider, and—

(a)references to the offering or awarding of an NHS Standard Contract to a provider are to be read respectively as references to the offering to modify or the modifying of an existing NHS Standard Contract held by a provider;

(b)the reference in regulation 42B(5) to “paragraph (4)” is to be read as a reference to paragraph (2) of this regulation;

(c)in the application of regulation 42C pursuant to regulation 42B(4) as modified by this regulation, the reference in regulation 42C to “regulation 42B(4) to (6)” is to be read as a reference to paragraphs (2) and (3) of this regulation.

(2) Following the provision of any local terms and conditions under regulation 42B(3) (or confirmation from the relevant body that no such terms and conditions are to be included), a provider may request a relevant body to assess it against the criteria in regulation 42C for the purposes of modification of an existing NHS Standard Contract where the provider has an existing NHS Standard Contract with the relevant body, but wishes to be assessed in relation to—

(a)the provision of new services,

(b)the provision of existing services from a location other than that specified in the existing NHS Standard Contract, or

(c)a change to the criteria specified in that contract which determine the means by which a service will be accessible to patients.

(3) Where—

(a)the criteria in regulation 42C are met,

(b)the proposed modification of the existing NHS Standard Contract is not contrary to any restrictions on modification of contracts imposed by regulations made under section 12ZB of the National Health Service Act 2006, and

(c)the provider agrees to the proposed modification,

the provider’s existing NHS Standard Contract must be modified, and must include any local terms and conditions referred to in regulation 42B(3).

(4) Nothing in this regulation permits the modification of an existing NHS Standard Contract where the proposed modification of the existing NHS Standard Contract would be contrary to any restrictions on modification of contracts imposed by regulations made under section 12ZB of the National Health Service Act 2006.

(5) Paragraph (6) applies where—

(a)the criteria in regulation 42C are met, but

(b)the proposed modification of an existing NHS Standard Contract would be contrary to any restrictions on modification of contracts imposed by regulations made under section 12ZB of the National Health Service Act 2006.

(6) Where this paragraph applies—

(a)the request for assessment of the provider in respect of a proposed modification under this regulation is to be treated as having been a request for assessment of the provider for the award of an NHS Standard Contract under regulation 42B(4) (without the modifications made by this regulation), and

(b)a new NHS Standard Contract must instead be awarded pursuant to regulation 42B(6) in respect of such of the matters for which the provider asked to be assessed under paragraph (2).]

Textual Amendments

Transitional provisionE+W

F2143.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F22Transitional provision: pre-existing contracts E+W

43A.—(1) This regulation applies to any commissioning contract with a provider entered into before 1st January 2024 by—

(a)a relevant body, or

(b)in relation to the period before 1st July 2022, a clinical commissioning group (as established in accordance with Chapter A2 of Part 2 of the 2006 Act as it applied before 1st July 2022),

following a determination referred to in regulation 7(2)(a) or (b) of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.

(2) Nothing in regulation 42B (as applied by regulation 42D), 42C or 42D affects any existing contract of the kind mentioned in paragraph (1) except insofar as, on or after 1st January 2024, the provider requests a relevant body to assess it for the purpose of modification of an existing NHS Standard Contract under regulation 42D.

(3) Where the provider expresses an interest of the kind mentioned in paragraph (2), regulations 42B (as applied by regulation 42D), 42C and 42D apply only in respect of the service in relation to which the provider expresses such an interest.

Textual Amendments

Transitional provision: enforcement E+W

43B.—(1) NHS England may commence or continue any investigation of an integrated care board—

(a)in respect of a complaint under regulation 13(1) of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013,

(b)where the grounds for the complaint occurred before 1st January 2024, and

(c)which has not been concluded before 1st January 2024,

as though it were an investigation commenced on or after that date under section 6F of the 2006 Act (and accordingly section 6F of, and Schedule 1ZA to, the 2006 Act apply to that investigation as appropriate).

(2) In paragraph (1), an investigation of an integrated care board includes any investigation of a clinical commissioning group (as established in accordance with Chapter A2 of Part 2 of the 2006 Act as it applied before 1st July 2022)—

(a)commenced before 1st July 2022, and

(b)continued as against an integrated care board pursuant to regulation 21(4) of the Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022.]

Textual Amendments