Who the Right to Choose duty leaves out

Two lists exclude people from the choice: one in the regulations, one written by each provider. The second one is longer, less visible and the more common reason a referral goes nowhere.

The short version

  • Regulation 40 excludes urgent care, maternity services and services under the cancer diagnosis duty.
  • Regulation 41 excludes people detained under the Mental Health Act 1983, people in or on temporary release from prison or other prescribed accommodation, and serving members of the armed forces.
  • The NHS adds that an onward referral, where you are already being treated for the condition, is outside the choice.
  • Each provider then applies its own inclusion and exclusion criteria, which are not in any regulation.

Eligibility for this pathway is two questions that get collapsed into one. Does the statutory duty reach you, and will the provider you want accept a referral for someone in your situation. A yes to the first tells you nothing about the second, and most people who are turned away are turned away on the second.

The statutory exclusions

Regulation 40 removes whole services from the duty: those subject to the cancer diagnosis duty in regulation 52(1), maternity services, and any service where it is necessary to provide urgent care.

Regulation 41 removes categories of person. It does not apply in relation to any person who is detained under the Mental Health Act 1983, 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 NHS spells the same list out in plainer terms and adds two more situations to watch for: where you need urgent, emergency or crisis treatment, and where you are already having care and treatment for the condition you have been referred for and it is an onward referral. It also mentions other prescribed accommodation explicitly, giving a court, secure children's home, secure training centre, immigration removal centre or young offender's institution as examples.

The provider's own criteria

NHS South West London ICB draws the line between the two lists better than anyone. Although anyone registered with a GP in England is legally entitled to access Right To Choose, each provider will have their own inclusion and exclusion criteria.

It then gives examples of what that means in practice: this may mean you are not eligible to access an assessment from a particular provider based on certain pre-existing needs, for example having a moderate to severe learning disability or an addiction.

Age is another common one, and it varies by provider rather than following a national rule. ADHD 360 states that it can only accept Right to Choose referrals for children aged 8 plus and adults 16 years and older. Psychiatry-UK describes its scheme service as assessments for adults aged 18 and over.

The ICB's advice on what to do about this is the practical version: your GP will be able to tell you which Right To Choose services are appropriate for you or your child and discuss your options.

Excluded from one provider is not excluded from the pathway

A provider declining a referral on its own criteria says nothing about whether another provider would accept it. The thing to establish before the referral is sent is whether that particular provider takes referrals for someone with your history and at your age.

Questions people ask about this

Can I use Right to Choose if I am already under an NHS mental health team?

Possibly not for that condition. The NHS lists onward referrals among the situations where there is no legal right to choose: specifically where you are already having care and treatment for the condition you have been referred for. Your GP practice is the place to establish whether what you need counts as a new referral or an onward one.

Is there an age limit on Right to Choose?

Not in the regulations, but in practice every provider sets its own range. ADHD 360 states it can only accept Right to Choose referrals for children aged 8 plus and adults aged 16 and over, while Psychiatry-UK describes its scheme service as covering adults aged 18 and over. Check the specific provider before the referral is sent.

Where this came from

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