Alternative Providers – can the rights ever be exercised?

The NHS Constitution provides that, if an NHS patient is the subject of an elective referral, treatment should commence within 18 weeks or the patient should be referred to a suitable alternative provider for earlier treatment.  The exact wording of the relevant part of the NHS Constitution is as follows:

“You have the right to access certain services commissioned by NHS bodies within maximum waiting times, or for the NHS to take all reasonable steps to offer you a range of suitable alternative providers if this is not possible. The waiting times are described in the Handbook to the NHS Constitution”

There is further detail in the NHS Handbook but the details of the “right” to be referred to a suitable alternative provider are in Regulations 47 and 48 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”).

However, in practice, being referred to a suitable alternative provider is far from straightforward.  The “right” will only arise if each of the following conditions is fulfilled:

1. The referral must be by an eligible referrer such as an NHS GP or NHS dentist (or the referral must be with the consent of an eligible referrer) [Regulation 47(2)].
2. The referral must be to a consultant or a member of the consultant’s team (or for interface services) [Regulation 47(3)]. There is a very specific meaning of the term “consultant” by reference to a person who is on the GMC Consultants list.  Hence a referral to a physiotherapist or a consultant psychologist will not count for the purposes of these Regulations.
3. The 18 week target must have been breached for that individual or will be breached: Regulation 47(4).
4. The provider or the relevant NHS commissioner must have been notified of the breach of the 18 week target [see Regulation 47(4) to (6)]. In practice this means telling the ICB or the Trust to whom the referral is made that the 18 week criteria has not been met or will not be met (because there are longer published wait times).
5. The alternative referral can only be sought to another consultant or a member of that consultant’s team. Hence a referral to someone other than a consultant is outside the rules.
6. The alternative consultant must be prepared to accept the referral [see the definition of “suitable” provider in Regulation 44].
7. The alternative consultant must be part of a “suitable provider” as that term is defined in Reg 44. That means the consultant works for a health service provider who (a) can provide services which consist of, or include, treatment which is clinically appropriate for that person in response to the reasons for the referral, and (b) will provide those services pursuant to a commissioning contract with a relevant body
8. The suitable provider must be a health service provider who, in the past, has entered into a commissioning contract with a CCG/ICB or NHSE [see Regulation 2]. Hence a suitable provider that has not previously contracted with the NHS is excluded.
9. The alternative provider must be able to offer an appointment to commence treatment earlier than the person referred would have commenced treatment if they had continued to wait for treatment at the relevant health service provider:  Regulation 48(3).
10. None of the exemptions in Regulation 49 must apply.  These cover a range of situations including where treatment has been offered and refused or where the consultant decides no treatment is needed.

In practice, these criteria are so complex and stringent that it is nearly impossible to see how they could be of practical benefit to anyone.  Any other contracted NHS provider is likely to be just as overwhelmed as the provider to who the patient has been referred.  Any provider who is regulated by the CQC to provide this service, is willing to do so and is not overwhelmed because it is not presently seeing NHS patients may well be excluded because the provider cannot show that it has or has had a commissioning contract.

David Lock KC is a deputy High Court judge, a visiting professor at LSE and the author of NHS Law and Practice with Hannah Gibbs.