57.There is a range of choices that patients should expect to be offered when using NHS services. These are central to the way the NHS operates and, as well as being mandated in legislation, the policy drive to strengthen, enhance and improve choice has been highlighted in many recent NHS publications. The NHS Constitution states that patients have the right to choose any NHS provider (that is clinically appropriate) for their first consultant-led outpatient appointment. Patients also have the right to be offered an alternative provider if they have not received a consultant-led outpatient appointment within 18 weeks of a referral from their GP. NHS England and NHS Improvement are proposing ways to strengthen patient choice and control, including the roll out of personal health budgets (PHBs).
58.The proposals for changes to legislation published for consultation by NHS England in February 2019 included “stronger protection for patient choice.” This strengthening of protection for patient choice was proposed to be implemented by explicitly amending the power to set standing rules in primary legislation to require inclusion of patient choice rights. Simon Stevens, Chief Executive of NHS England, explained that what was being proposed was not only to protect but to enhance patient choice, which was already safeguarded as a statutory right for patients. This view was echoed by many stakeholders. Dr Amanda Doyle, Chief Officer of Healthier Lancashire and South Cumbria, said that there was nothing in the proposals that:
suggests losing the obligation to offer choice at the point of referral, or the obligation to re-offer choice after a lengthy delay in wait for treatment.
59.Although the proposals have been generally welcomed in relation to their impact on patient care, concerns were raised about unintended consequences, particularly over the lack of clarity about several aspects of the proposals. One such example was presented to us by Professor Pritchard, Director for Health and Social Care at Social Enterprise UK. She was concerned that there was a risk that the proposals could lead to a reduction in choice, if commissioners made decisions using a version of a best value test that led to non-NHS providers being excluded from provision of services to NHS patients. Another was explained by Sharon Lamb of legal firm McDermott Will and Emery, an expert in NHS regulatory and contracting matters:
The issue of revoking the 2013 regs is that effectively you remove the right for providers to be listed if they achieve or meet commissioner requirements or standards. By removing the 2013 regs, you effectively remove the right to be listed on an AQP list on NHS Choices, so you have cut off half of the choice entitlement. It is not enough to say that patients have a constitutional right to choice if you do not also allow the market to provide.
60.The ability of patients to choose who provides their care is an important right. In practice, however, the ability of patients to actually exercise this choice is constrained by numerous factors, most notably where they live. Those living in a metropolitan area may have a range of choices which are not available to people living in other parts of the country, as Rob Harwood, Chair of the BMA Consultants Committee, explained. Professor Checkland, Professor of Health Policy and Primary Care, University of Manchester, and a practising GP, pointed out that “in my area, choice tends to be geographical. The patients who live nearer Sheffield go to Sheffield, and the patients who live near Chesterfield go to Chesterfield, and that is all they care about–transport links.” She also explained that “as a GP, my lifelong experience is that, although some people want choice around the edges, most of my patients just want their local hospital to be good.” This point was supported by Dr Gerada, former Chair of the Royal College of General Practitioners, who stressed that while choice is important, the overriding priority should be ensuring “safe, local services that deliver good-quality care to their patients, based on need, not want.”
61.Retaining patients’ right to choose between providers is undisputed. What is disputed is the extent to which the ability of patients to choose helps to create safe, good quality services. When the money follows the patient, as is the case under the payment by results system, patient choice can act as an incentive for providers to improve. However, after 30 years of the NHS internal market, evidence is lacking to support the use of competition as the overriding organising principle of how health and care is organised. Patient choice can be useful “in areas like planned operations, specialist outpatients, and talking therapies,” according to the Nuffield Trust. In the context of the integrated care which these legislative proposals are intended to facilitate, Simon Stevens explained that local areas are mainly focusing on joining up the ongoing care of patients with long-term conditions, rather than one-off procedures which are more likely to be subject to patient choice.
62.The development of integrated care providers and systems is likely to result in a shift in the way health and care services are incentivised, which could undermine patient choice. For example, integrated care providers, and integrated care systems, will be incentivised to provide services within their organisations or partnerships, although a patient may benefit from being referred elsewhere, as the Nuffield Trust argued. One way to guard against this would ensure that there remains a distinct role for commissioners and/or ICSs that is separate from provider interests.
63.We support the intention of NHS England and NHS Improvement’s proposals to strengthen patient choice. The evidence we have taken in the course of this inquiry suggests that practical considerations such as geography have a greater influence on the exercise of patient choice than legislation, and that what most patients want is good quality care close to their home. Using patient choice as a lever to improve quality may help for some services, particularly planned or elective care, but as an organising principle, we believe that encouraging collaboration between providers is a much better way to provide good-quality care for patients, especially those with multiple long-term conditions. Nonetheless, witnesses to our inquiry accepted the desirability of maintaining and enhancing patient choice in the NHS. Those developing the proposals should ensure that they do not have unintended consequences that negatively impact on the ability of patients to exercise their right to choose between providers.
64.It is proposed, as part of the changes designed to enable collaboration, to remove NHS Improvement’s competition powers and duties. The aim of this is to make supporting improvement in the quality of care, and the use of NHS resources, the organisation’s primary focus. A consequence of this proposal would be to remove NHS Improvement’s role as a complaints body, including directly resolving individual issues when a patient believes that their right to choice has been denied.
65.We heard that the number of complaints relating to patient choice has been low. Nevertheless, the ability for patients to be able to access a suitable appeal mechanism when they believe their right to choice has been denied is important. Unless otherwise provided for, future enforcement of these rules would instead be through the courts. This would inevitably be slower and more expensive than the current enforcement regime.
66.We do not suggest a particular body to conduct this work but note that the low number of complaints is likely to make the establishment of a new agency to deal with this specific issue undesirable. This view was supported by David Hare, Chief Executive of the Independent Healthcare Providers Network, who also emphasised that the enforcement body should be independent from the provider of care. The Care Quality Commission or the Independent Reconfiguration Panel could potentially take on this appeals function.
67.Having a right to choice relies on that right being enforceable. We recommend that an appeal mechanism is preserved, within an existing independent body, for patients who believe they have been denied choice.
67 NHS England and NHS Improvement, , March 2019
68 NHS England and NHS Improvement, , March 2019
69 and Simon Stevens
70 Dr Doyle
71 Professor Pritchard
72 The National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013. See paras x to y above (procurement).
73 Sharon Lamb
74 Dr Harwood
75 Professor Checkland
76 Professor Checkland
77 Dr Gerada
78 Nuffield Trust ()
79 Health Foundation (),King’s Fund ()
80 Nuffield Trust ()
81 Simon Stevens
82 Nuffield Trust ()
83 Nuffield Trust ()
84 Andrew Taylor
85 Mr Andrew Taylor ()
86 David Hare
Published: 24 June 2019