Patient Choice: NHS England updates its guidance

Patient choice continues to be a key element in the delivery of care (physical and mental), with NHS England leading on the policy development and operational delivery of patient choice.

NHS England provides advice and guidance to patients, the public, commissioners and providers and they have oversight responsibilities to ensure that patients are being provided with the choices they are entitled to, as well as investigating complaints about patient choice and non-qualification of providers.

Their most recent Patient choice guidance published on 19 December 2023 can be found here.

Implementation of the changes introduced by the Health and Care 2022 Act include revisions to the choice provisions in Part 8 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the NHS Standing Rules).

The amendments to the NHS Standing Rules clarify:

This guidance replaces all previous publications produced by NHS England and NHS Improvement in relation to patient choice and aims to:

  • Provide an overview of the choices available to patients in the NHS and the rules that underpin patients’ rights
  • Enable consistency in the application of these rights
  • Explain how commissioners can fulfil their duties in relation to patient choice and meet their statutory obligations
  • Provide guidance on how NHS England will manage enquiries and complaints related to patient choice.

The guidance is helpfully set out into separate sections for commissioners, primary care referrers and NHS and independent sector elective care providers.

Duty to ensure patients are offered a choice

The guidance makes clear the duty on commissioners to ensure that patients who require a physical or mental health referral for a first outpatient appointment can choose:

  • Any clinically appropriate provider that holds a qualifying NHS Standard Contract with any Integrated Care Board or NHS England, for the service which the patient needs as a result of the referral
  • Any clinically appropriate team led by a named consultant employed or engaged by that provider.

In addition to the duty to ensure that patients are offered a choice of provider and team, the guidance sets out NHS England’s expectations regarding the duty on commissioners to publicise and promote information about choice and the duty to offer an alternative provider and team if maximum waiting times will be exceeded.  

Qualification of providers

What is set out in some detail in this guidance is the process and timescales for public, independent and third sector organisations to secure NHS Standard Contracts for the provision of elective services where the legal rights to choice apply.   The guidance sets out the details from expressions of interest, the nature of information that should be provided to interested providers, qualifying criteria and assessment. 

Once the commissioner has determined that a provider meets the qualification criteria and should be offered a contract, the PSR direct award process B must be used to award the contract as set out in The Health Care Services (Provider Selection Regime) Regulations 2023.

Primary care referrers’ role

Primary care referrers also have a key part to play in the delivery of patient choice.  This runs from facilitating the right for individuals to choose their GP practice, their GP or nurse and supporting commissioner obligations to publicise and promote choice by helping patients to find out more about the choices available to them. This includes using the e-Referral Service which GPs are contractually required to use for referrals to acute services.


NHS England’s remit spans to responding to and investigating complaints about patient choice. Concerns can be raised by patients/representatives, providers and other interested parties. NHS England also deals with complaints about the non-qualification of providers. To support this a Choice Provider Qualification Complaints Panel (the Choice Panel) has been established to proactively review and support the timely resolution of these complaints.

This updated guidance offers end to end clarification on patient choice and should not be ignored by anyone involved in the delivery of patient care.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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