What a qualifying NHS contract means

Your choice reaches providers that hold a specific kind of contract, defined in four parts by regulation 39(8). That definition is also where the current rationing happens.

The short version

  • The contract has to be signed and in effect before the date your referral is made.
  • It has to be a commissioning contract for the service you actually need.
  • A contract created to serve one named individual does not count.
  • Because the choice depends on a contract, contract terms are where funded volumes get capped.

The least discussed sentence in this pathway is the one doing most of the work today. Regulation 39(8) defines what a qualifying contract is, and everything about how much assessment capacity exists flows through it.

The four-part definition

Part one explains why timing matters: a provider that signs a contract after your referral date is not one of your choices for that referral. Part two explains why a provider can be a legitimate Right to Choose provider for autism assessments and not for ADHD ones, or for children and not for adults. NHS Black Country ICB illustrates this directly by publishing a provider table with a separate yes or no column for each of adult ADHD, adult autism, children's ADHD and children's autism.

Part four is an anti-avoidance provision. It stops a bespoke one-person contract being used to manufacture a choice that the commissioning framework did not intend.

  1. It is an NHS Standard Contract which is signed and in effect before the date on which the referral is made.
  2. It is a commissioning contract for the service required as a result of the referral.
  3. It requires that service to be provided from the location specified in the contract, or sets out the criteria to determine how that service will be accessible to patients.
  4. It is not a contract put in place solely to provide that service to a specified individual.

Why this is where rationing lives

If the choice runs through a contract, then whoever writes the contract controls the supply behind the choice, and that is exactly what has been happening.

NHS England's October 2025 advice to systems says the new NHS Standard Contract Activity Management provisions can be used to ensure that each provider delivers the right level of activity, and that these provisions allow commissioners to agree or set an Indicative Activity Plan with each provider, whether contracted or non-contract activity, and to manage activity by reference to that plan using the contractual Activity Management process.

So the entitlement in regulation 39 has not been narrowed. The funded volume sitting behind it has been shaped. That distinction is cold comfort on a waiting list, and it is the honest description of what has changed.

Questions people ask about this

Why can I not choose any private clinic?

Because regulation 39(8) limits the choice to providers holding a qualifying NHS Standard Contract, signed and in effect before your referral date, commissioning the specific service you need. A private clinic without such a contract can assess you privately for a fee, but it is not one of the choices the regulation gives you.

Can a provider be available for ADHD but not for autism?

Yes. The contract has to be a commissioning contract for the service required as a result of the referral, so a provider can hold one for some services and not others. NHS Black Country ICB publishes a provider table with separate columns for adult ADHD, adult autism, children's ADHD and children's autism, which is the clearest public example of this.

Where this came from

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