Health secretary Andy Burnham has set out his proposals to give patients waiting time and health check rights.

But the Department of Health’s impact assessment for the policy - which could apply from April next year - shows it is banking on only a few patients exercising their rights.

It is a major departure [to] guarantee what patients can expect through legislation [and] it is vital to be wary of any unintended consequences - particularly around how meeting the target might affect other local health priorities for PCTs

Mr Burnham proposes to turn the 18 week target for referral to elective treatment, the two week cancer wait target and the health check for over 40s into legally enforceable patient rights.

The proposals were set out last week in a consultation document called The NHS Constitution: a consultation on new patient rights.

Mr Burnham said patients would be able to “seek redress” from their primary care trusts if waiting targets were not met, but that it “would be up to the patient to enact their right”.

The rights - which will be embodied in the NHS constitution - will involve the DH issuing “legal directions” to PCTs. These will require them to take “reasonable” steps to find alternative providers if a waiting time target is due to be missed or if local health check services for the over 40s are unavailable.

Patients could bring a judicial review against a PCT if their rights were not met.

Mr Burnham said: “We are ruling out that the NHS can ever manage financial pressure by building up waiting lists.”

The impact assessment says the DH expects the change to be “largely cost neutral”.

This is because, although up to 402,000 patients missed the 18 week target for reasons other than personal choice or clinical exceptions last year, the DH expects fewer than half of such patients would act on the rights.

The assessment also shows while alternative treatment might be provided in private hospitals, the DH would not expect it to be priced above the tariff.

It also suggests in practice PCTs will write the waiting time requirements into their contracts with acute trusts, so that although PCTs will not pay extra for patients that are treated privately, acute trusts may have to.

However, “redress” is not likely to mean “compensation”.

A draft version of the impact assessment, accidently published on the DH website, contained the comment: “I wouldn’t describe this as ‘redress’ because it makes me think that I can ask the NHS for compensation.”

NHS Confederation policy director Nigel Edwards said: “It is a major departure [to] guarantee what patients can expect through legislation [and] it is vital to be wary of any unintended consequences - particularly around how meeting the target might affect other local health priorities for PCTs.”

New legal rights

Proposed from 2010

  • GP referral to elective procedure within 18 weeks
  • GP referral to cancer specialist within two weeks
  • Heart disease, stroke, diabetes, kidney disease health check every five years for 40-74 year olds.

Additional rights the DH is seeking views on

  • Choice to die at home
  • Diagnostic tests for cancer within one week of GP referral
  • NHS dentistry
  • Personal health budgets, where clinically appropriate
  • Evening and weekend GP appointments