The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2023

Explanatory Note

(This note is not part of the Regulations)

These Regulations are made in discharge of the duty, in section 6E of the National Health Service Act 2006 (c. 41), as inserted by section 78(2)(b) of the Health and Care Act 2022 (c. 31), to make regulations which impose requirements or “standing rules” on NHS England and integrated care boards, to make provision as to the arrangements that NHS England and integrated care boards must make for enabling persons to whom services are to be provided to make choices with respect to specified aspects of them. They do so by amending the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (S.I. 2012/2996) (“the Standing Rules”). They also include other provisions to protect and promote the rights of persons to make choices in relation to treatments or other services.

Regulation 2 amends the Standing Rules to—

• omit the definition of “Choice Directions” in consequence of the revocation of regulation 43 (by paragraph (5)), substitute the definition of “elective referral” and insert new definitions of “interface services” and “NHS Standard Contract” in regulation 38 of the Standing Rules (regulation 2(2));

• specify “qualifying contracts” in relation to the duty to offer a choice of health service provider under regulation 39 of the Standing Rules (regulation 2(3));

• insert new regulations 42A, 42B, 42C and 42D into the Standing Rules (regulation 2(4)):

  • new regulation 42A prohibits NHS England from restricting the ability of a person to apply for inclusion in the list of patients of a practice providing primary medical services, or to express a preference to receive such services from a particular medical practitioner or class of medical practitioner;

  • new regulation 42B allows a health service provider to ask an integrated care board or NHS England (a “relevant body”) to assess it for an offer of a new NHS Standard Contract in relation to services in respect of which patients must be offered a choice of provider or where the patient is offered a choice of provider where the relevant body has not restricted the number of providers from which patients may choose. This regulation requires the relevant body to provide information in relation to the form of contract that would be offered following such an assessment and requires the relevant body to conduct the assessment as soon as reasonably practicable but in any event within six weeks of the date on which the provider has asked to be assessed;

  • new regulation 42C sets out criteria which must be considered by a relevant body when assessing a health service provider as to whether it should be offered a new NHS Standard Contract or modification of an existing NHS Standard Contract;

  • new regulation 42D allows the assessment process in new regulation 42B and the criteria in new regulation 42C to be used in respect of proposed modifications to existing NHS Standard Contracts;

• omit regulation 43 of the Standing Rules which contains spent transitional provisions (regulation 2(5));

• insert new regulations 43A and 43B into the Standing Rules (regulation 2(6)):

  • new regulation 43A contains a transitional provision to ensure that contracting arrangements already in place at the coming into force of these Regulations are unaffected unless the health service provider actively requests a modification of an existing NHS Standard Contract in respect of a service under new regulation 42D;

  • New regulation 43B contains a transitional provision to ensure that NHS England may commence or continue any investigation of an integrated care board, in respect of a complaint under regulation 13(1) of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (S.I. 2013/500) as though it were an investigation commenced on or after that date under section 6F of the National Health Service Act 2006. This applies only in situations where the grounds for the complaint arose before the coming into force of these Regulations;

• amend regulation 46 of the Standing Rules to align with updated guidance on the calculation of waiting times (regulation 2(7));

• amend regulation 50 of the Standing Rules to refer to updated guidance on the calculation of waiting times (regulation 2(8)).

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen. A full impact assessment has been prepared in relation to the provisions of the Health and Care Act 2022 to which this instrument gives effect, and a copy is available at https://www.gov.uk/government/publications/health-and-care-bill-combined-impact-assessments. A hard copy can be obtained by writing to the Department of Health and Social Care, 39 Victoria Street, London, SW1H 0EU.