Leading trusts defy NHS England over 'out of area' referrals

HSJ has also learned that some trusts are planning to challenge the measure on patient safety grounds.

HSJ reported last year that trusts were turning away patients from beyond their immediate catchment areas for routine care because they were struggling to meet service demand and hit access targets.

The decisions have been controversial as they restrict a patient’s right to choose a provider.

NHS England has attempted to stamp this out by including a new provision in the standard provider contract for 2015-16, published last week. A clause in the contract forbids trusts refusing to treat patients based on where they live.

Technical guidance explains that the contract “introduces a new requirement on providers to accept every referral, regardless of the identity of the responsible commissioner, where this is necessary to enable a patient to exercise his/her legal right of choice of provider”.

NHS England consulted on this measure late last year and received strong objections from providers.

An NHS England spokesman said it would be up to local commissioners to “determine how to enforce a provision in the standard contract” and whether to use sanctions on providers.

University Hospitals Birmingham Foundation Trust, the first trust to publicly make the case for closing its doors to “out of area” patients, is continuing to do so despite the contract changes.

Restrictions apply to routine care across a range of specialisms, and the trust applied a new restriction for ophthalmology services last month.

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However, it has agreed to remove the restrictions on referrals from six GP practices in Worcestershire, following negotiations with Redditch and Bromsgrove Clinical Commissioning Group, as these were judged to be close enough to its main Queen Elizabeth Hospital site.

A trust spokeswoman said: “The latest national contract documentation will be reviewed by the trust.”

Salford Royal Foundation Trust hopes to work with NHS England to resolve its dispute, said trust chief executive Sir David Dalton. He said: “I remain of the view that it is not acceptable for trusts to maintain open access to patients when they have no capacity to treat them and when they have undertaken all of their contracted activity.

“It’s not in the best interests of patient safety to have patients waiting over 18 weeks for a referral when they could receive a quicker referral into a provider closer to where they live.

“It is also unfair to penalise trusts that have met all other requirements but breach waiting time targets because the demand for a particular service far outweighs what the organisation has agreed with commissioners to provide.”

Board papers published by Imperial College Healthcare Trust – which has not refused out of area patients and does not plan to – said that the new contractual requirement “is already being challenged by some trusts using patient safety criteria”. The trust told HSJ it was not one of those challenging the measure.

An NHS England spokesman said the new standard contract would protect the right of patients to choose who provides their care.

However, he added: “It is for commissioners to determine how to enforce a provision in the standard contract. Sanctions should always be a last resort and we would expect commissioners to discuss with the provider the issues and factors associated with their performance and decide on appropriate remedial action.”

Miriam Deakin, head of policy for NHS Providers, said: “There is little sense in including this [clause] in the standard contract without ensuring that commissioners are putting in place demand management strategies as this will do nothing to address the underlying reasons why providers might be forced to consider out of area referrals to protect the quality of services in the first place… We are urging commissioners to work with providers to understand how they are expected to manage this requirement in the context of operational pressures.”