What can a patient on a waiting list do to speed up NHS treatment?

The NHS waiting list for elective treatment in England has been growing since 2013 – almost tripling in size over the decade to 7.7 million[1]. The waiting list had already reached 4.6 million before the pandemic. During the pandemic the waiting list grew sharply, as care was suspended. The elective care recovery plan, published in February 2022, set out ambitions to reduce long waits for treatment and an expectation that the waiting list would be falling by March 2024. In January 2023, the Prime Minster pledged that ‘NHS waiting lists will fall and people will get care more quickly’. However, the number of people waiting list to start elective care reached a record high of 7.77 million in September 2023, dropping to 7.71 million in October 2023[2].

Most patients on waiting lists are referred to their local NHS hospital, which is run by the local NHS Trust. As is well known, NHS hospitals are overburdened by the number and complexities of patients and, given the way the NHS is funded, cannot recruit additional staff to meet the extra demand[3]. Hence, in practice, NHS Trusts have no choice but to require patients to wait their turn for elective procedures. However, there are two sets of legal rights that individual patients have which, if exercised, could result in patients securing much faster, NHS funded treatment. Both of these rights are created by the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”), although neither set of rights is either widely understood or followed in practice[4].

Option 1: Exercising patient choice rights at the point of referral.

This right arises at the point the patient is referred for elective treatment. Where a person “requires an elective referral”, regulation 39 of the 2012 Regulations gives the patient the right to be referred to “any clinically appropriate health service provider with whom any relevant body has a commissioning contract for the service required as a result of the referral qualifying contract”. All of these terms are defined in the Regulations but, in summary, NHS Integrated Care Boards (“ICBs”) across England contract with a wide range of providers of medical services. Some providers are NHS Trusts and others are private companies (such as BUPA, Spire or Circle) who do a mixture of NHS and private health care. All of these providers are regulated by the Care Quality Commission to provide services against the same set of standards.

A patient who, for example, is referred for a knee replacement is entitled to be referred to any provider that has a team led by a consultant and has a contract with any ICB across England for knee replacement surgery. Until 31 December 2023, the patient could only be referred for an NHS funded first appointment. However, as from 1 January 2024, this legal right for the NHS to pay for treatment by any contracted provider has been extended to include “any subsequent treatment required as a result of that elective referral[5]”. Hence, a patient in the Wirral faces a 12 month may have to wait for a knee replacement at his local Trust. After 1 January 2024, the patient can insist on being referred to a private hospital in Manchester which contracts with an ICB in Cheshire where the waiting time is only 3 months. It is irrelevant that his local ICB has no NHS commissioning contract with the private hospital in Manchester. The Wirral patient has these rights as long as another ICB has such a contract. Once the referral is made, the Wirral ICB has to pay the private hospital in Manchester for the initial outpatient appointment and for surgery if this is required[6] following the referral.

Option 2: Exercise 18-week breach rights.

If a patient has already been referred but treatment has either not commenced within 18 weeks or will not have commenced appropriate treatment within 18 weeks, then (subject to some exempted cases such as transplant surgery) the patient has the right to have their referral transferred by the ICB from the existing provider to one who can see and commence treatment more promptly.

The Regulations are hugely prescriptive and there are 10 conditions which have to be satisfied before the ICB have to make the transfer. These are: 

1. The initial referral must have been made 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 initial referral must be to a consultant or a member of the consultant’s team[7] [Regulation 47(3)]. There term “consultant” means 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 treatment has not commenced or will not commence within the 18 week period from referral).
5. The alternative referral can only be sought to another “consultant” or a member of that consultant’s team at the alternative provider. 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 work within a “suitable provider” as that term is defined in Reg 44. That means the consultant works[8] 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, either at this point or in the past, has entered into a commissioning contract with a CCG/ICB or NHS England [see Regulation 2]. Hence a suitable provider which has not previously contracted with an NHS commissioner 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.

Whilst these seem a formidable list of conditions, they should all be capable of being met in a standard case of an elective referral for something fairly straightforward. Private sector providers who contract with the NHS tend to have much shorter waiting lists than NHS Trusts, in part because they get paid per procedure and thus do not have the blockage on expanding capacity that arises with NHS providers.

Finding out which providers are contracted to provide which NHS services?

ICBs have a positive legal duty to offer these treatment choices to NHS patients on their waiting lists. However, in practice, few ICBs are proactive about informing patients about alternative options because every patient who makes use of their options results in the ICB incurring additional costs[9].

As far as the author is aware, there is no publicly available database of alternative providers. However, a google search of providers in your area specifying the type of operation or procedure you need plus the letters “NHS” should reveal a list of NHS bodies and private sector operators who are contracted to the NHS. Many private providers give an indication of the waiting times on their websites or will explain the typical waiting times if called.

What to do if the ICB fails to respond?

If the ICB fails to respond, a patient has three potential ways forward. First, the patient could use the NHS complaints system to file a complaint about the ICB’s failure to abide by its obligations. Secondly, the patient could seek a judicial review of the failure of the ICB to comply with their legal obligations. Thirdly, the patient could simply book a private consultation, pay for the procedure privately and then seek to claim the money back from the ICB. Each of these has potential benefits and risks. It is beyond the scope of this brief article to provide legal advice and thus it is not possible to list the potential advantages and disadvantages of each option and anyone in that position is advised to seek legal advice.

Annex: Specimen letter to ICB to exercise waiting time rights

[Your full name and address]

To the Chief Executive,

[ …. ] Integrated Care Board

Your full name and address

Your NHS numbers:

GP Details : [Your GP name and address]

“Dear Dr/Mr/Ms XXXX,

Request for referral to an alternative provider under Part 9 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012.

I am writing on behalf of […name..] of [ …address..].

I have been referred to [name of the Trust to whom you have been referred] for [Details of the condition for which you have been referred]. The referral was made on [date of referral].

I have been told that the NHS provider to whom I have been referred expects to be able to see me with a view to commencing treatment in about [approximate date when you expect to be treated].

The duty to offer an alternative provider.

Whilst I appreciate that long waiting lists are a regrettable feature of the NHS at present, the ICB remains under a legal duty as a result of Regulation 48 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”) to offer an alternative provider to any patient where treatment has not “commenced" within 18 weeks of the initial referral or, as a result of delays will not have commenced: see Regulation 47(4). Treatment for these purposes means “an intervention that is intended to manage a person’s disease, condition or injury and, insofar as reasonably practicable, avoid further interventions”: see Regulation 44.

Treatment for me will not commence within 18 weeks and she thus has the right to require the ICB to refer her to an alternative provider.

The duty on the ICB is to offer treatment for me “at a suitable health service provider other than the relevant health service provider”. A referral can be made to any other Trust or private provider which operates a team headed by a consultant which has held an NHS contract for this type of work who can offer the service at a date which is earlier than the date offered by the NHS Trust to whom I have been referred. Under the 2012 Regulations, it is not necessary for the alternative provider to hold a current contract with your ICB.

I have done some research and there are a variety of private providers who hold NHS contracts and could undertake this surgery within a matter of weeks. These include [list any providers that you have been able to locate who might have shorter wait times].

Please take this letter as notification that I am informing the ICB of the breach of the 18 week time limit under Regulation 47(5) of the 2012 Regulations.

Can I therefore ask you to confirm within the next 7 days that I can take advantage of the right to be referred to an alternative provider. If the ICB is unable to do this (even though the duty is on the ICB under Regulation 45(1)), can you please confirm that I have the right to arrange this for myself, with the cost of the procedure falling on the NHS.

I can be contacted on [email/mobile number] if a discussion would assist.

Yours sincerely” 

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[1] See https://www.health.org.uk/waiting-list

[2] Some people are waiting for more than one procedure so the number of people waiting for treatment is probably nearer 6.5M: see https://www.england.nhs.uk/long-read/monthly-operational-statistics-november-2023/

[3] Even if more staff were available, NHS Trusts are very largely funded under block contract arrangements which mean that the Trust gets a set sum for providing a service to all referred patients. Hence, for example, a Trust will get a fixed amount for providing hip replacement surgery regardless as to how many people are referred to the Trust for this procedure. There are slight variations due to demand but the sum payable by the ICB to the Trusts is largely fixed, and so the only response to additional elective demand is to require patients to wait.

[4] These rights are explained at https://www.nhs.uk/using-the-nhs/about-the-nhs/your-choices-in-the-nhs/

[5] As a result of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No 2) Regulations 2023.

[6] Surgery would be “required” for these purposes if, applying the policies of the Wirral ICB, the patient’s clinical condition justified surgery.

[7] Or for “interface services” as that term is defined in the Regulations.

[8] Either as an employee or as a self-employed doctor.

[9] Because one effect of the block contracting arrangement is that the ICB has, in effect, already paid for the procedure within the block contract price that the patient is seeking to have funded elsewhere.

This article was written by David Lock KC.