Your
Rights
In England you have a legal right to make choices about your NHS healthcare that could mean you or your loved ones get seen faster and feel better quicker.
Choose the Hospital
You have a legal right to have your free NHS treatment at an NHS or private hospital of your choice,* anywhere in England, when referred by your NHS GP. There are exceptions as to which please see below.
Choose Which Consultant
Patients have a right to start consultant-led treatment within 18 weeks of referral (or two weeks in the case of urgent suspected cancer), or request an offer of alternative providers that can start their treatment sooner. The NHS must take all reasonable steps to meet patients' requests. There are exceptions, as to which please see below.
This means you will either see a consultant or a member of his/her team, but the Consultant will be responsible for your care.
Waiting for over 18 week to start treatment?
You can ask to be referred to a different hospital if:
you have waited more than 18 weeks before starting treatment.
you have waited more than 2 weeks before seeing a specialist for suspected cancer.
There are a number of other important government pledges around waiting times, and of course there are exceptions (e.g. emergency or urgent treatment and maternity services). See below for more information and/or follow the links set out below.
Many people aren't aware of these rights, but by knowing and acting upon them, you have the opportunity to cut your waiting times and be treated quicker at NHS or private hospitals, funded by the NHS, and to have your treatment at higher ranked hospitals, across the country.
The sources of your rights in law are spread across a number of enactments and regulations including under the rules introduced by section 75 of the Health and Social Care Act 2012 (the "Act") and related regulations. This Act and related regulations introduced important changes to the structure and organisation of the NHS and enhanced people's rights further.
Your Rights Include
You can choose which GP practice to register with, as well as which doctor or nurse you'd like to see. That practice must make every effort to allow you to see the person you've chosen, however there may be occasions where this is not possible.*
When an NHS GP initially refers you to see a consultant or specialist, you can choose with your GP which hospital you'd prefer to be referred to.
You can choose an NHS hospital, or a private hospital that is contracted to do NHS work. You can make this choice ahead of your first appointment, whenever you are referred for a physical or mental health condition.*
The 2012 Regulations (referred to below) which set out this right to choose a hospital state that a patient's right to choose a hospital is in respect of the patient's first appointment. Which is a little confusing. Nevertheless, this appointment tends to be to discuss treatment options and in practice it follows that the treatment is provided by that hospital in the absence of good reasons why this is not appropriate.
The commissioning body (whether this is your local CCG, or the newly formed Integrated Care Boards (ICBs) or Integrated Care Partnerships (ICPs) are also bound to exercise their duties with a view to enabling patients to make choices and it therefore may be unlawful to move a patient to another hospital for further courses of treatment unless there is a very good reason.
Don't forget, there's no cost whatsoever to you (and no extra cost to the taxpayer) if you choose to have your NHS funded treatment or procedure at a private hospital. If your GP refers you for NHS treatment then the NHS pays for it.
You can choose which consultant-led clinical team will be responsible for your NHS treatment, so always discuss your options with the person referring you.
For a physical condition you will be seen by a consultant, or a clinician from their team. For a mental health condition, you will be seen by a consultant, a mental health team leader or a member of their team.
You can ask to be referred to a different hospital if:
- you have to wait more than 18 weeks before starting treatment for a physical or mental health condition, if your treatment is not urgent.
- you have to wait more than 2 weeks before seeing a specialist for suspected cancer.
Waiting times can vary between hospitals and you have the right to be referred to another hospital that may be able to start your treatment sooner.
Waiting times start from the day the hospital receives the referral letter, or when you book your first appointment through the NHS e-Referral Service.
These are legal rights but there are exceptions.
If you have to wait for more than 18 weeks for non-urgent treatment to start, you do not have a legal entitlement to ask to be referred to a different hospital if:
- the services you are using are not led by a medical consultant
- you choose to wait longer for your treatment to start
- delaying the start of your treatment is in your best interests. For example, if you need to lose weight or stop smoking or for other personal medical reasons before treatment can start
- you fail to attend appointments which you had chosen from a set of reasonable options
- you decide not to start, or you decline, treatment
- a doctor has decided that it is appropriate to monitor you for a time without treatment
- you cannot start treatment for reasons not related to the hospital, for example, you are a reservist posted abroad while waiting to start treatment
- your treatment is no longer necessary
- you are on the national transplant list
- you are using maternity services
If you have to wait for more than 2 weeks for an appointment to a cancer specialist, you do not have a legal right to ask to be referred to a different hospital if:
- you did not go to an appointment that you agreed to go to
- you have declined treatment
Exceptions to your legal rights to choose which hospital to have your NHS treatment.
For example, there are exceptions if you are:
Already receiving NHS care and treatment for the condition for which you are being referred and this is an onward NHS referral
Using emergency services
A serving member of the armed forces
Using maternity services
Someone who is held in a hospital setting under the Mental Health Act 1983
In need of emergency or urgent treatment, such as cancer services where you must be seen in a maximum waiting time of two weeks
Referred to services commissioned by local authorities, as your choice will depend on what has been put in place locally
Background and Further Information
The principle that NHS patients should be able to choose where they are treated for their elective care (non-emergency care) is a key part of Government policy and enactments of Parliament and regulations made over many years; and the Government has continued to enhance these rights. The principle is that patients should be able to choose the doctor or clinician to provide their care, and that the "money" should follow the patient.
The NHS Constitution was created in 2009 and was designed as a summary of the duties and obligations of the NHS and the rights of the public to receive health care and exercise choice.
Section 75 of the Health and Social Care Act 2012 empowered the Government to introduce regulations to enhance patient choice, promote good practice in relation to procurement of healthcare services and to avoid anti-competitive behaviour.
Specifically, Part 8 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the "2012 Regulations") were made under that Act introducing important changes and legal rights of patients to make their own choices. In addition, these rights were supplemented by the National Health Service (Procurement, Patient Choice and Competition) No (2) Regulations 2013 (the "Commissioner Regulations") which were designed to ensure NHS England and clinical commissioning groups procure high quality healthcare services that meet the needs of patients and protect patient choice.
As well as the specific regulations mentioned above there are general duties imposed by other NHS legislation and policy underpinning these rights, such as the National Health Service Act 2006 and statements of Government and NHS policy issued from time to time, such as the "5 Year Forward View" launched in October 2014 and The Government's 2021-2022 mandate to NHS England and NHS Improvement ("Mandate"), which commits the Government to the delivery of the NHS Long Term Plan (January 2019) which in itself promotes improving patient choice. More recently the Health and Care Act 2022(HCA 2022),which became law on 28 April 2022, while making a number of sweeping changes to NHS organisational policy (see below), reaffirmed the importance of the NHS constitution and the concept of patient choice.
The Health and Social Care Act 2012 (the "Act")
The Act also introduced a number of other important policies, whilst creating bodies and structures to authorise, monitor and regulate all primary care providers (GPs) and secondary care providers (public and private sector hospitals) in England. The Secretary of State for Health, NHS England and other bodies oversee this regime, whilst every healthcare provider (e.g. hospitals) needs to be registered with the Care Quality Commission (CQC) which regulates them. Wales, Scotland and Northern Ireland have different rules under which NHS care is provided.
In England, GPs are required to notify patients when they have a choice of provider and inform them where they can find information about the choices they have.
Clinical commissioning groups (CCGs) were created in England to oversee the provision of healthcare in designated regions (authorised by NHS England). CCGs are obliged to consider patient choice (the Commissioners Regulations referred to above) and use providers best suited to offer value for money, quality and efficiency of healthcare services, whether sourced from the public or private sector using the NHS Tariff. This is designed to create a level playing field for NHS hospitals and private hospitals. The HCA 2022 now proposes to replace CCGs with Integrated Care Boards (ICBs) and Integrated Care Partnerships (ICPs) in order to reform the delivery of health and social care services promoting integration of these public services in England so as the create better health outcomes for patients and to delver organisational efficiencies in our health and social care systems.
The Act says that paid-for NHS healthcare services must be in accordance with the NHS Tariff, which is published by NHS England.
This is a national standard price for NHS funded healthcare procedures. This aims to create a level playing field for all providers of NHS services, regardless of their status as a public or private sector organisation. This means that if you choose to have your NHS funded treatment at a private hospital, the NHS will pay them the NHS National Tariff to perform it; you pay nothing. If you choose to pay the private hospital yourself or your treatment is funded by your healthcare insurer, you are likely to find you will have your treatment performed even quicker.
Choice in the NHS is about putting patients and the public first, increasing their involvement in decisions affecting them, as well as the choice of healthcare provider for their NHS funded treatment (whether provided by the public or private sector).
Professor Sir Bruce Keogh (NHS England's Medical Director at the time), stated in December 2014 in the introduction to NHS Guidance on "Choice in Mental Health Care"- though his comments apply to both mental and physical health:
"It is important to note that the right choice does not mean that a patient only has their first outpatient appointment with their chosen provider: consistent with physical health care, once a patient has chosen a provider, that provider will normally treat the patient for their entire episode of care unless the patient's diagnosis changes significantly"
The NHS and those who commission NHS services (local Clinical Commissioning Groups, known as CCGs -now being replaced with Integrated Care Boards (ICBs) and Integrated Care Partnerships (ICPs) ) are obliged to promote choice, and cannot be prejudiced to public or private providers, so that nobody gets an unfair advantage in competing with others, whether public or private sector. These rights are reflected in the NHS Constitution and in the legislation and regulations that underpin it.
For further information follow the links below.
The NHS Constitution sets patient's rights to access healthcare services within maximum waiting times and for the NHS to take all reasonable steps to offer a range of suitable alternative providers if this is not possible. Regulation 12 of the Commissioners Regulations is designed to protect this right of choice where maximum waiting times are not going to be met.
Regulation 12 of the Commissioners Regulations requires CCG commissioners to offer patients choice in accordance with Regulation 48(4) of the 2012 Regulations.
Regulation 45 (3) of the 2012 Regulations requires the healthcare provider to make arrangements that not less than 92% of the relevant patients have been waiting to commence appropriate treatment for less than 18 weeks.
In addition, Regulations 47 and 48 of the 2012 Regulations apply where a patient who has been referred for elective care will not have commenced treatment within 18 weeks of a referral being received by the provider to whom the patient is referred.
Under Regulation 48 of the 2012 Regulations, CCG commissioners are required to take all reasonable steps to ensure that the patient is offered an appointment with a clinically appropriate alternative provider with whom a commissioner has a contract to start treatment earlier.
If there is more than one suitable alternative provider for these purposes, Regulation 48(4) of the 2012 Regulations requires the CCG commissioner to take all reasonable steps to ensure that the patient is offered a choice of appointment with more than one provider. There are exceptions as stated above.
It is expected these regulations will be adjusted so that the obligations of CCG commissioners will be assumed by the new commissioning bodies of Integrated Care Boards (ICBs) and Integrated Care Partnerships (ICPs) introduced by the HCA 2022, which among significant reforms to healthcare systems in England reaffirms the NHS Constitution and the importance of Patient Choice.
DISCLAIMER: The guidance above and on the site "healthcompare.co.uk" is provided as general guidance and is not designed to constitute legal advice upon which you can rely. Persons requiring legal advice in relation to their personal circumstances should consult their own professional advisors.
* Your legal right to choose a GP practice or to qualify for NHS treatment may be restricted in some circumstances. See the section entitled exceptions or follow the website links below for more information.
The NHS Choice Framework
NHS Constitution
5 Year Forward View
Mandate
NHS Long Term Plan
The 2012 Regulations
The Commissioners Regulations
Section 75 of the Act
The National Health Service Act 2006
Health and Care Act 2022
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