Defining the Boundaries between NHS and Private Healthcare Policy

This refers to care provided to a patient under a personal and individual contract with their private or independent healthcare provider and funded either through a private insurance scheme or on a pay as you go basis (i.e., the patient is responsible for providing funding for their care). The healthcare provider could be an NHS Trust, as many have specific wings to provide private services, a private or independent hospital or an individual doctor. The healthcare may include treatment that would have been available to the patient as part of their usual local NHS funded care, or it may be healthcare that is not normally commissioned by their local ICB.

Patients attending the private wing of an NHS Provider organisation pursuant to an agreement to provide privately funded healthcare are private patients and not NHS patients.

This is is healthcare for patients which is funded by the ICB. Essex ICB has policies that define the elements of healthcare which the ICB is and is not prepared to fund, and Individual Funding Request processes to consider purchasing care for individual patients outside of commissioned healthcare and these policies.

This may include care commissioned by the ICB from a local or national non-NHS independent private provider, in accordance with their agreed local commissioned pathways and clinical thresholds, to improve choice and access to timely treatment for their patients. The patient has the right to choose this option if the patient’s GP agrees this is the most clinically appropriate option. See NHS England Patient choice guidance for further information on Right to Choose. December 2023.

The process of assessing needs, planning and prioritising, purchase and monitoring health services, to get the best health outcomes.

Where the Government has passed Regulations that require patients to make a financial contribution to the overall cost of NHS commissioned care.

The term used to describe proposals that have been made by doctors and patient pressure groups which seek to permit patients to pay for some elements of their care and for the NHS to provide other elements of care within the same episode of care. Co-funding is currently against Department of Health and Social Care policy and is not permitted by the ICB. Essex ICB will not consider any funding requests of this nature.

This is the same as co-funding.

A period of engagement between an NHS commissioned healthcare intervention and the patient in which NHS commissioned care is provided to the patient. The following are examples of episodes of care:

• A single visit to the GP
• An outpatient appointment
  • A series of diagnostic tests relating to the same person at an NHS hospital on the same day
  • A day case operation with all the supporting clinical activity before and after the operation on that day
  • The initial assessment and prescription of a cancer drug. If the drug is required to be given at a series of outpatient appointments, then each attendance will be a separate episode of care.

These are to be considered when privately funded treatment is provided within an NHS setting. Attributable costs mean all additional costs which would not have been incurred by the NHS had the patient continued with NHS care and not sought private treatment.

If an NHS patient has also gone to a private provider to buy a drug not available as part of the NHS care package, then they are expected to pay for any additional monitoring needed for the drug (blood tests, CT scans, etc.) and also for the treatment of predictable complications of receiving the drug. If a patient chooses to seek privately funded healthcare for a treatment that is not normally commissioned by the NHS, the patient is expected to pay all attributable costs. It is not acceptable, for example, to add a private monitoring test onto routine monitoring the patient might be having in parallel within the NHS.

This is a list of medicines approved for local use and identifies those where a shared care agreement is necessary. The aim is for the formulary to cover around 90% of prescribing; however, it is recognised that there are occasions when it is clinically necessary for a non-formulary medicine to be prescribed.

Non-formulary medicines should be prescribed only when formulary choices are not suitable or have been exhausted. Non-formulary prescribing should not be used to bypass usual NHS commissioned pathways.

This is a written agreement between a patient, their GP, and a specialist-often a hospital consultant- that allows the treatment of a patient’s condition to be shared between the specialist and the GP. The purpose of a shared care agreement is to facilitate appropriate clinical oversight and maintain patient safety. GPs are not obliged to enter into a shared care agreement.

The ICB Board has overarching responsibility for the commissioning of services and consequently is responsible for ensuring that access to services is equitable.

The Commissioning, Quality and Resource Committee has responsibility to ensure equity of access of service provision and will therefore be assured through this policy that equitable access to NHS services is maintained.

The Commissioning, Quality and Resource Committee is therefore the sponsoring committee for this policy.

The Executive Medical Director oversees compliance with this policy.

The Director of Pharmacy, Medicines and Clinical Policies has operational responsibility for ensuring that systems and processes are in place to deliver the requirements of this policy and will report to the Executive Medical Director and relevant committee providing assurance that the policy is being followed.

The ICB IFR Team/Panel/Appeals Panel will ensure that any individual funding requests relating to transfer of care from private to NHS care transfer comply with this policy.

The ICB Pharmacy and Medicines Team will ensure that relevant providers, including GP Practices, are fully aware of the policy as applicable to medicines and medicines-related devices when asked to advise on the transfer of patients from private to NHS care.

In commissioning services those charged with commissioning will ensure that the principles of this policy are applied to due process.

The ICB Contracting Team or those charged with contract management, through the management of contracts, will ensure that providers comply with this policy.

The ICB Complaints team will co-ordinate the investigation of complaints regarding the ICB’s refusal to fund NHS care in an individual case, whether the care has been previously privately funded or not. The ICB Complaints team will co-ordinate investigation of the patient’s concerns in line with the ICB’s complaints procedure and will assess the decisions made against this policy and the relevant ICB commissioning policies. If complaints are not resolved to the patient’s satisfaction after it has been investigated locally, a patient can ask the Parliamentary & Health Service Ombudsman to review the complaint. The Ombudsman can be reached through the Parliamentary and Health Service Ombudsman making a complaint webpage or via Helpline 0345 015 4033.

NHS funded care is made available to patients in accordance with the policies of the ICB. However individual patients are entitled to choose not to access NHS funded care and/or to pay for their own healthcare through a private arrangement with doctors and other healthcare professionals. Except as set out in this policy, a patient’s entitlement to access NHS funded care should not be affected by a decision by a patient to fund part or all of their healthcare needs privately.

An individual who is having treatment which would have been commissioned by the ICB is entitled to commence that treatment on a private basis but can at any stage request to transfer to complete the treatment in the NHS. In this event the patient is entitled, as far as possible, to be provided with the same treatment as the patient would have received if the patient had had NHS treatment throughout. This cannot be used as a justification to provide care that is not available to other NHS patients and may mean the patient having to wait for the continuation of treatment, to put that patient in the same position as any other NHS patient.

Patients are entitled to seek provision for part of their treatment for a condition by a privately funded healthcare arrangement and part of the treatment to be commissioned by the ICB, provided the NHS funded care is delivered in episodes of care which are clearly differentiated from any privately funded care. However, the NHS funded treatment provided to a patient is always subject to the clinical supervision of the treating clinician. There may be times when an NHS clinician declines to provide NHS treatment if they consider that any other treatment given, whether as a result of privately funded treatment or for any other reason, makes the proposed NHS treatment clinically inappropriate.

An individual who has chosen to pay privately for an element of their care such as a diagnostic test is entitled to access other elements of care through the NHS, provided the patient meets NHS commissioning criteria for that treatment. However, at the point that the patient seeks to transfer back to NHS care:

• the ICB is at liberty to request that the patient be reassessed by an NHS clinician.
• the patient will not be given any preferential treatment by virtue of having accessed part of their care privately.
• the patient will be subject to standard NHS waiting times.

Patients electing to see a private specialist should do so on the expectation that all recommended tests, procedures and prescribed medicines will be paid for privately and not provided on the NHS.

A recommendation from a private specialist for a medicine that is available on the NHS does not entitle the patient to NHS prescriptions for that medicine.

Self-funding patients who refer themselves to a private provider for treatment are expected to pay the full cost of any and all treatment they receive in relation to the care provided privately.

Any drugs prescribed or treatment provided by a clinician in the course of or following a private consultation will be at the patient’s expense.

Where a patient has been seen privately and a treatment is recommended that is normally commissioned by the ICB, the patient’s NHS clinician (e.g. GP or NHS consultant) may prescribe the treatment within the NHS, provided that:

• the clinician considers the treatment to be clinically appropriate and accepts full clinical responsibility for prescribing.
• the treatment is routinely commissioned and supported by the ICB’s formulary.
• the clinician is competent and willing to prescribe and monitor the treatment under NHS arrangements; and
• the treatment does not require a shared‑care agreement unless such an agreement is already in place within the ICB formulary.

A recommendation from a private clinician does not create any entitlement to treatments that are not routinely commissioned, nor does it bypass existing clinical pathways, formulary restrictions or commissioning policies. NHS clinicians must apply the same commissioning rules regardless of whether the patient has received private care.

There is no obligation on the part of the clinician e.g. GP or consultant to prescribe the recommended treatment if it is contrary to his/her normal clinical practice. The private consultant’s advice on choice of treatment is advisory, and the NHS clinician may choose to prescribe an alternative product bearing in mind national and local guidelines/formulary. By prescribing, a clinician assumes clinical responsibility for the treatment.

There may be cases where a patient’s private consultant has recommended treatment with a medication which is specialised in nature and the patient’s GP is not prepared to accept clinical responsibility for the prescribing decision recommended by another doctor. If the GP does not feel it is appropriate to accept clinical responsibility for the medication, the GP should consider whether to offer a referral to an NHS consultant who can consider whether to prescribe the medication for the patient as part of NHS funded treatment. See the shared care medicines section below for information on medicines prescribed under shared care arrangements. In all cases there should be proper communication between the consultants and the GP about the diagnosis or other reason for the proposed plan of management, including any proposed medication.

Medication recommended by private consultants may be more expensive than the medication options prescribed for the same clinical situation as part of NHS treatment. This might be because a particular choice of treatment has been deemed not to be clinically effective and/or cost-effective and consequently is not included in the ICB formulary. In such circumstances, the NHS clinician should follow local prescribing advice from the ICB. This advice should be explained to the patient who will retain the option of purchasing the more expensive drug via the privately funded healthcare service.

Patients should be aware that discharge medication following an in-patient stay or medication to take home with them following an outpatient appointment may not be included within their insurance or the quoted cost of the procedure/consultation, and they may need to pay for this separately. Patients should not ask their GPs to prescribe such medication.

Some NHS funded medicines that require ongoing monitoring and specialist clinical input, are prescribed under joint shared care arrangements with an NHS specialist and a GP.

Where a patient has self-referred to a private provider for treatment, GPs should not enter into shared care arrangements with a non-NHS funded provider specialist for these medicines, as this constitutes co-funding of a single episode of care which not permitted.

Note this does not apply to shared care medicines initiated by specialists from a non-NHS provider where the service is commissioned by the NHS, the patient meets locally commissioned criteria for treatment, and the patient has been referred to the service by their GP. Although services are being provided by a non-NHS provider, these services are wholly NHS funded and therefore GPs may, if they would normally do so if the patient was seen by an NHS specialist service, enter into shared care arrangements with the NHS commissioned and funded private provider.

Further guidance on prescribing can be found in PrescQIPP Bulletin 238: Prescribing on the NHS following a private consultation.

NHS care is free of charge to patients unless Regulations have been brought into effect to provide for a contribution towards the cost of care being met by the patient. Such charges, known as co-payment, include prescription charges and some clinical activity undertaken by opticians and dentists. These charges are not “co-funding” (as defined above) but are specific NHS charges set by Regulations, which have always been part of the NHS.

Co-funding, which involves both private and NHS funding for a single episode of care, is not permitted for NHS care. The ICB will not consider any funding requests of this nature.

Patients are entitled to request providers of NHS care to provide privately funded patient care as part of their overall treatment. It is a matter for providers as to whether and how they agree to provide such privately funded care. However, providers must ensure that private and NHS care are kept as clearly separate as possible. Any privately funded care must be provided by a provider at a different time and place to NHS commissioned care. The ICB will not fund any privately funded care within the same episode of care as NHS commissioned care.

In particular:

• Each visit by a patient to a hospital can be an “episode of care” (as defined above).  This means that private and NHS funded care cannot be provided to a patient in a single visit.
• If a patient is an NHS in-patient at an NHS hospital, any privately funded care must be delivered for the patient in a separate building or separate part of the hospital, with a clear division between the privately funded and NHS funded elements of the care, unless separation would pose overriding concerns of patient safety.

A patient is not entitled to “pick and mix” elements of NHS and private care in the same treatment and so is unable to have privately funded and NHS funded drugs or devices provided as part of the same care episode.

Private prescriptions may not be issued during an NHS consultation except where allowed by regulations e.g. GPs may prescribe privately medicinal products listed in Part XVIIIA – Drugs, Medicines and Other Substances not to be ordered under a General Medical Services Contract of the Drug Tariff, or Part XVIIIB – Drugs, Medicines and Other Substances that may be ordered only in certain circumstances (where patients do not comply with the criteria for NHS funding), or drugs for prevention of malaria, or vaccines not included in current public policy and travel packs or drugs solely in anticipation of the onset of an ailment while outside the UK.

Where patients are paying for surgical treatments or procedures, GPs are not permitted to issue NHS prescriptions for drugs required as part of that privately funded treatment or seek NHS funding for investigations which are part of the privately funded treatment. If the patient does not meet the ICB’s commissioning criteria for funding the surgery or procedure, the NHS should not prescribe drugs or support other medical procedures required as part of the privately funded treatment.

If a patient is advised to be treated with a combination of drugs, some of which are not routinely available as part of NHS commissioned treatment, the patient is entitled to access the NHS funded drugs and can attend a clinician separately (in a separate episode of care) for those drugs which are not commissioned by the NHS. If the combination of drugs is required to be administered at the same time or within the same episode of care, and there are no patient safety issues, the patient must fund all of the drugs provided and the other costs associated with the proposed treatment. In such circumstances, patients or clinicians may approach the ICB to apply for NHS funding for the whole of the treatment via an Individual Funding Request. However, treatment outside of drugs and other treatments usually provided as part of NHS care can only be provided on grounds of clinical exceptionality. The fact that a patient is prepared to fund part of their own treatment is not a proper ground to support a claim for clinical exceptional circumstances.

When a patient wishes to pay privately for a treatment not normally funded by the ICB, the patient will be required to pay all costs associated with the privately funded episode of care. The costs of all medical services and care associated with the treatment include accommodation, assessment, inpatient and outpatient attendances, tests, rehabilitation, and management of side-effects. The ICB will not make any contribution to the privately funded care to cover treatment or associated costs that the patient could have accessed via the NHS. However, the patient remains entitled to revert to NHS care at any stage and will, at that point, be entitled to be provided with any drugs or other treatment which would have been provided to an NHS patient in the same clinical situation. They should, however, not gain advantage over other patients waiting for NHS care.

Further guidance on prescribing can be found in Prescribing on the NHS following a private consultation.

Any privately funded arrangement, which is agreed between a patient and a healthcare provider (whether an NHS Trust or otherwise), is a commercial matter between those parties.

ICB policies define which treatment the ICB will and thus, by implication, will not fund.  Accordingly, if a patient commences a course of treatment that the ICB would not normally fund, the ICB will not routinely pick up the costs of treatment if, for example, through the course of treatment.

• An individual cannot afford ongoing private treatment costs; or
• Private healthcare insurance does not cover the full treatment costs; or
• The patient requests the NHS to pick up the costs on the grounds that the treatment is clinically effective; or
• Revision of a procedure/ intervention carried out in the private sector initially.

A patient is entitled to ask their NHS clinician to request funding on an individual case based on clinical exceptionality (refer to ICB Policy on Individual Funding Requests). However, where the ICB has decided not to fund a treatment routinely, the fact that the patient has demonstrated a benefit from the treatment to date (in the absence of any other evidence of exceptionality) would not be a proper basis for the ICB to agree to change its policy. Such an approach would result in the ICB approving funding differently for persons who could afford to fund part of their own treatment. It is the responsibility of the Private Healthcare Provider to ensure that the patient is fully informed of the ICB’s position relating to ongoing funding before commencing the private treatment.

If a patient commences treatment privately for a drug or other medical intervention that the ICB routinely agrees to fund, provided the patient’s clinical circumstances are within those defined in the ICB’s commissioning policy, the patient is entitled to transfer to NHS funded treatment at any stage. However, the ICB will not reimburse the patient for any treatment privately funded before NHS funded treatment commences. If a patient seeks funding for a drug or other treatment that is not routinely funded and this application is approved on the grounds of clinical exceptionality, the ICB will not routinely reimburse the costs of any prior privately funded treatment. The ICB is under no obligation to meet such costs. Each case will be considered on its own merits, in accordance with the ICB’s Individual Funding Request Policy.

Individual patients who have been recommended treatment by an NHS consultant that is not routinely funded by the ICB under its existing policies are entitled to ask their GP to be referred for a second opinion from a different NHS consultant concerning their treatment options.

A patient has no legal right to a second consultant opinion under current NHS guidance. However, they are entitled to request one and this should normally be approved if:

• the request is supported by the patient’s GP or consultant (the ‘first consultant opinion’)

AND

• the second opinion is available from an NHS clinical specialist who practices within a relevant mainstream NHS commissioned service. This opinion needs to provide a balanced view of the benefits and risks and for care which is not routinely funded it should be from a specialist who is:
  • independent of the first ‘consultant opinion’ provider
  • independent of the specific service, service provider or provider of the intervention that is being requested (unless no other specialist is available who could provide that balanced opinion).

AND

• the patient is seeking to establish access to care on the grounds of clinical ability to benefit and not social factors (that are not taken into account under Individual Funding Request processes).

The ICB’s Contract Team is available to offer advice on preferred providers in such circumstances.

However, a second opinion supporting treatment that is not routinely funded by the ICB does not create any entitlement to NHS funding for that treatment. The fact that two NHS consultants have recommended a treatment would not normally amount to exceptional clinical circumstances.

NHS patients are entitled to make a complaint about any refusal by the ICB to agree to fund care in their individual case, whether the care has been previously privately funded or not. If such a complaint is made, the ICB will investigate the patient’s concerns as quickly as possible using the ICB’s complaints procedure and will assess the decisions made against this policy and the relevant ICB commissioning policies.

There is no legal or policy requirement for the ICB to take over funding responsibility for treatment which has been commenced outside the NHS, and which is not routinely funded by the NHS. ICB commissioners have a responsibility to make rational decisions in the way in which they allocate resources and to act fairly between patients. The ICB makes prioritisation decisions each year which determine how resources are to be allocated. In addition, the ICB may consider in-year service developments and will consider clinically exceptional individual cases.

Where a treatment is not routinely commissioned, patients and clinicians have three legitimate routes to request that the ICB consider NHS funding:

• by submitting an Individual Funding Request on the grounds of clinical exceptionality.
• by requesting that the ICB consider the treatment as a service development for a defined cohort of patients; or
• by proposing that the treatment is considered through the ICB’s annual planning and prioritisation process.

Where a patient has commenced treatment on a privately‑funded basis, the ICB will not assume responsibility for continuing that treatment unless one of the routes described above results in a positive decision. The fact that a patient has self‑funded a treatment or has demonstrated apparent benefit from privately‑funded care, does not in itself justify NHS continuation funding and does not constitute clinical exceptionality.

This ensures equity by preventing privately‑funded treatment from creating an advantage compared to other NHS patients and aligns with the ICB’s policy on the boundaries between NHS and private care. It follows therefore that, in instances where the ICB has not yet agreed to fund a particular treatment, the ICB will not pick up the costs of ongoing treatment.

This approach includes the following situations:

• Ongoing funding of treatment for patients leaving clinical trials carried out in the private sector. The responsibility for ongoing care rests with the sponsors of the trial – usually the company e.g., pharmaceutical industry and the provider initiating treatment. 
• Ongoing funding of treatment for patients who have been started on a treatment through company sponsorship (frequently known as compassionate use funding). The responsibility for ongoing care rests with the company and the provider initiating treatment.
• Ongoing funding for patients who have opted for private treatment for a condition not routinely funded by the ICB and who can no longer afford private treatment.

Note: Different funding rules apply to the continuation of treatments initiated under NHS sponsored clinical trials, but these are not expected to be initiated in the private sector.

Patients can access treatment on the NHS if, and when, the treatment is made available to all patients and/or where the ICB’s services and the patient’s clinical needs meet the ICB’s commissioning policies for that treatment.

If a patient develops a non-emergency complication as a result of a private procedure/intervention, the private healthcare provider should remedy these; and the patient will be expected to meet these costs which would not be funded by the ICB. An example of this would be revision surgery of procedures originally performed in the private sector.

If the cause of the complication is unclear or is an emergency, the NHS will treat the patient and, in this situation, the patient will not be expected to pay for the treatment.

This policy defines the boundaries between NHS‑funded care and privately funded care. It ensures that all providers apply consistent rules when managing the interface between private and NHS treatment, supporting equity of access to commissioned NHS services while recognising individuals’ rights to seek private care. It provides staff with clear guidance to avoid inequity, inappropriate transfer of private activity into the NHS, or preferential access for individuals who can self‑fund.

Equality and demographic information for the Essex population has been reviewed, alongside national evidence on risks of inequity arising where boundaries between NHS and private care are unclear. The policy supports the principle that access to NHS funded care must be determined solely by clinical need and commissioning policy, not by a person’s ability to self fund, which is an important safeguard for individuals with protected characteristics. Internal IFR and prescribing data have also informed the assessment of where inequitable private to NHS transitions may arise.

The policy has been reviewed with senior clinicians, commissioning staff and the Funding Team. Wider public consultation has not been undertaken because this is an internal operational policy clarifying commissioning boundaries and does not alter access to commissioned services. The internal consultation is proportionate to the scope and purpose of the policy.

Any equality concerns arising during implementation—such as appeals, complaints, inappropriate private‑to‑NHS transition requests, or prescribing issues—will be monitored through existing governance processes. Equality data will be reviewed where relevant to ensure no protected group is disproportionately affected by how the policy is applied.

Every 2 years as a minimum and earlier if there are any significant changes in legislation, policy or good practice.

N/A