The regulation behind Right to Choose
Part 8 of the Standing Rules Regulations 2012 contains the whole thing: regulation 38 defines the referral, 39 creates the duty, 40 and 41 remove services and people from it.
The short version
- There is no Act of Parliament called the Right to Choose Act. The duty is in secondary legislation.
- Regulation 38 defines an elective referral. Regulation 39 creates the choice. Regulations 40 and 41 take it away again in defined cases.
- Regulations can be amended by ministers without new primary legislation.
People arguing about this pathway online tend to cite something that does not exist. There is no Right to Choose Act. The duty lives in four consecutive regulations of one statutory instrument, and reading them in order takes about ten minutes and settles most disputes.
Regulation 38: what counts as a referral
Regulation 38 is the interpretation provision, and it defines elective referral as referral by a general medical practitioner, a general dental practitioner, or an optometrist, to a health service provider, including when the referral is first assessed by a person providing interface services, for treatment that is not identified as being immediately required at the time of referral.
Two consequences follow immediately. A referral from anyone outside that list is not an elective referral for these purposes, which is the legal reason a self-referral does not open the choice. And a case identified as immediately required is outside the definition entirely.
Regulation 39: the duty itself
Regulation 39(1) creates the obligation on the commissioner. Regulation 39(2) sets out the two limbs of the choice and opens with the words subject to regulations 40 and 41, so the exceptions are built into the duty rather than bolted on.
Regulation 39(6) defines clinically appropriate by reference to the referrer's opinion, which is where the real limit on this pathway sits. Regulation 39(8) defines qualifying contract, which is where the practical limit sits.
Regulations 40 and 41: the carve-outs
Regulation 40(1) removes services subject to the cancer diagnosis duty and maternity services. Regulation 40(2) removes any service where it is necessary to provide urgent care.
Regulation 41 removes people rather than services. The duty does not apply in relation to any person who is detained under the 1983 Act, detained in or on temporary release from prison or other accommodation described in regulation 10(2), or serving as a member of the armed forces. The 1983 Act is the Mental Health Act 1983.
Why the instrument type matters
These are regulations made under the National Health Service Act 2006, not an Act in their own right. Secondary legislation can be amended by ministers without a fresh Act of Parliament, and this instrument has been amended repeatedly since 2012.
Nothing here is a prediction that the ADHD choice will be removed. It is a reason not to describe it as permanent, and a reason to check the current text on legislation.gov.uk rather than a summary of it written some years ago.
Questions people ask about this
Is there a Right to Choose Act?
No. The duty sits in regulation 39 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, which is secondary legislation made under the National Health Service Act 2006. Any page citing a Right to Choose Act is citing an instrument that does not exist.
Which regulations take Right to Choose away?
Regulation 40 removes services: those subject to the cancer diagnosis duty, maternity services, and any service where it is necessary to provide urgent care. Regulation 41 removes people: anyone detained under the Mental Health Act 1983, anyone detained in or on temporary release from prison or other prescribed accommodation, and serving members of the armed forces.