Your rights

You have certain rights (and responsibilities) under the NHS Constitution.

(For England only – Published March 2010)

Page numbers refer to the NHS Constitution Handbook, available here

For the first time in the history of the NHS, the constitution brings together in one place details of what staff, patients and the public can expect from the National Health Service. It also explains what you can do to help support the NHS, help it work effectively, and help ensure that its resources are used responsibly.

The Constitution sets out your rights as an NHS patient. These rights cover how patients access health services, the quality of care you’ll receive, the treatments and programmes available to you, confidentiality, information and your right to complain if things go wrong.

What legal underpinning does the Constitution have?

The Health Act 2009 includes provisions related to the NHS Constitution. These came into force on 19 January 2010 and place a statutory duty on NHS bodies, primary care services, and independent and third sector organisations providing NHS care in England to have regard to the NHS Constitution, along with a number of duties placed on the Secretary of State for Health.

At INPUT, we are particularly interested in 2 rights:  your right to NICE-approved treatments and your right to choose your hospital.

The Constitution states:

“You have the right to drugs and treatments that have been recommended by NICE for use in the NHS, if your doctor says they are clinically appropriate for you.”

NICE (the National Institute for Health and Clinical Excellence) is an independent NHS organisation producing guidance on drugs and treatments. ‘Recommended’ means recommended by a NICE technology appraisal.

(Section 2a of the NHS Constitution)

What this right means for patients

NICE health technology appraisals make recommendations on the use of specific new and existing drugs and treatments within the NHS. And when a NICE technology appraisal recommends the use of a drug or treatment, PCTs must fund that drug or treatment for patients when it is clinically needed.

In practice this means that you have a right to receive that drug or treatment if your clinician says it is appropriate for you to receive it and it has been recommended by NICE’s
technology appraisals.

There are a few cases where the statutory duty to fund a particular technology appraisal recommendation does not apply, usually for a limited period in order to allow the NHS
to make arrangements for implementation. In those cases, the right applies once the exemption has expired.

Source of the right

Directions given by the Secretary of State to primary care trusts on the funding of guidance in National Institute for Health and Clinical Excellence (NICE) technology appraisals. The directions are made under section 8 of the NHS Act 2006 and primary care trusts have a legal obligation to comply with such Directions. The Directions require primary care trusts to apply funding so as to ensure that a treatment covered by an appraisal is normally available within three months after the date of publication of the appraisal. The Secretary of State may, by further Directions under section 8 of the
NHS Act 2006, exempt particular appraisals from this right, or extend the period that trusts have to provide funding.

“ You have the right to expect your local NHS to assess the health requirements of the local community and to commission and put in place the services to meet those needs as considered necessary.”
(Section 2a of the NHS Constitution)

What this right means for patients

This is the responsibility of your local PCT, which must assess the health requirements of the local population and provide the services as it considers necessary to meet their needs.

The NHS also provides access to ‘specialised services’ for the small number of people who suffer from rare conditions. These specialised services are commissioned either regionally or nationally from a few specialist centres, depending on the rarity of the condition or treatment.

“You have the right to make choices about your NHS care and to information to support these choices. The options available to you will develop over time and depend on your  individual needs.” (Section 2a of the NHS Constitution)

What this right means for patients

You have the right to choose the organisation that provides your NHS care when you are referred for your first outpatient appointment with a service led by a consultant. There are certain exceptions including:

Persons excluded

• persons detained under the Mental Health Act 1983

• military personnel

• prisoners

Services excluded

• where speed of access to diagnosis and treatment is particularly important, e.g.:

– emergency attendances/admissions

– attendances at a Rapid Access Chest Pain Clinic under the two-week maximum waiting time, and

– attendance at cancer services under the two-week maximum waiting time

• maternity services

• mental health services.

Your right to choose will develop as choice is extended into other areas.

You have a right to information where there is a legal right to choice. Currently, this gives you a right to information to support you in choosing your provider when you are referred for your first outpatient appointment with a service led by a consultant. Information to help you make your choice can be found on the NHS Choices website (www.nhs.uk). PCTs are expected to promote this information and make it more accessible to patients.

What the NHS needs from you in return

The NHS is a vital resource and we can all help it work effectively, and ensure resources are used responsibly. The NHS Constitution explains the ways in which you can do this, including:

  • recognising that you can make a significant contribution to your own, and your family’s good health and wellbeing, and taking some personal responsibility for it
  • registering with a GP practice
  • following courses of treatment you’ve agreed to
  • always treating NHS staff and other patients with respect
  • keeping GP and hospital appointments – or if you have to cancel, doing so
    in good time
  • giving feedback – both positive and negative – about treatment you’ve received

What to do if your expectations are not met

The NHS welcomes and encourages feedback (both positive and negative) from patients, the public and NHS staff. This is a vital source of information and will help the NHS to improve. If patients want to raise concerns, the first step is to contact their clinician or the local NHS (primary care trust) to see if the concern can be resolved immediately.  Details of what to do if you want to raise a concern are given on pages 10–11 of the NHS Constitution Handbook.

NHS Choices states:

If you are unhappy with the advice you have been given by your GP, consultant, or another healthcare professional, you may ask for a second (or further) opinion.

Although you do not have a legal right to a second opinion, you have the right to ask for one. A healthcare professional will rarely refuse to refer you for one unless there is sufficient reason. Your GP or consultant may ask a colleague to provide a second opinion if they are not fully certain of their diagnosis or suggested course of treatment.

What if I would like to see a different GP?

If you would like a second opinion after receiving advice (for example a diagnosis or suggested course of treatment) from your GP, you can ask them to refer you to another GP. You may also consider seeing another GP at your local surgery, if you are registered at a multi-GP surgery. Or you can change your GP altogether.

What if I would like to see a different consultant?

If you would like a second opinion after seeing a consultant, you need to ask your GP to refer you again. If your GP agrees to refer you to a new consultant, they will be told that this is your second opinion and will be sent any relevant test results or X-rays previously carried out.

How long will I have to wait for a second opinion?

If you request a second opinion, you should be aware that this will not take priority, and you may have to wait. A second opinion with a different consultant will usually be at a different hospital, which may involve some travelling.

What is the alternative to seeking a second opinion?

Before asking for a second opinion, it is worth asking your GP or consultant to go over and explain anything you do not understand.

If you are unhappy with your diagnosis or would like an alternative course of treatment to be considered, discuss this with them. Your GP or consultant will be happy to explain things and in many cases there may be no need for a second opinion.

Can I demand a specific treatment?

Your GP doesn’t have to prescribe a particular medication or treatment for you if they think it’s not the right option. You’re entitled to ask for their reasons for the decision.
You’re also entitled to make a suggestion and explain to your GP why you believe that a medication or treatment is a good option.

Remember that:

  • some types of treatment aren’t available on the NHS, and
  • you need a referral from your GP to have some types of treatment on the NHS, such as cosmetic surgery.

If you’re not satisfied with your GP’s advice, you may want to consider getting a second opinion. Although you’re not legally entitled to a second opinion, a healthcare professional will rarely refuse to refer you.

You may feel happier with a different GP, but be aware that they may give you the same advice.

NICE and NHS medicines and treatments

The National Institute of Health and Clinical Excellence (NICE) regularly looks at new medication and treatments to assess whether they:

  • are safe,
  • are more or less effective than other medication or treatments, and
  • represent value for money, by assessing how well a medication or treatment works in relation to its cost.

NICE will not automatically reject a medication or treatment because it’s expensive. NICE recognises that something can be both expensive and represent good value for money.
The NHS in England and Wales is legally obliged to fund medicines and treatments that NICE recommends. This means that when NICE recommends a medicine or treatment, the NHS must ensure it’s available to those people it could help, normally within three months of the guidance being issued. So, if your doctor thinks a medicine or treatment recommended by NICE is right for you, you should be able to get it on the NHS.