Health Bill: What does it mean for Patient Choice?

The Health Bill, introduced in the House of Commons on 14 May 2026, will abolish NHS England and transfer the bulk of its functions to the Secretary of State for Health and Social Care (the "Secretary of State") and to integrated care boards ("ICBs"). In this update, we look specifically at the patient choice functions that will transfer, and how this might affect providers.

Further updates will follow as we look at the other proposals in the new Bill.

Background: a major structural reform

The Bill is the legislative vehicle for a reform first announced in March 2025: the abolition of NHS England and the creation of what the Government describes as a "lean, agile centre". NHS England's main functions will either be conferred on the Secretary of State, conferred on ICBs, or changed as they are transferred. Running alongside the Bill is a wider programme of reorganisation, including ICB mergers, boundary changes and a 50% reduction in ICB running costs.

The accompanying impact assessment, also published on 14 May 2026, assumes that most function transfers will have a "neutral impact" on patients and providers, on the basis that the same functions simply continue in different hands.

Patient choice, however, is one of the areas where that assumption deserves scrutiny.

The patient choice duty moves to the Secretary of State

NHS England has an existing duty, set out in section 13I of the National Health Service Act 2006 (inserted by the Health and Social Care Act 2012) to "act with a view to enabling patients to make choices with respect to aspects of health services provided to them". A parallel duty applies to ICBs under section 14V of the same Act, and is unaffected by the Bill. It is the section 13I duty that the Bill proposes to transfer to the Secretary of State, to be discharged in the exercise of their healthcare functions.

The wording of the section 13I duty is not being rewritten. However, it remains to be seen whether the new holder of the duty - a minister accountable to Parliament - changes the way in which it will be discharged.

Enforcement powers over ICBs: investigation and directions

The Bill also transfers the enforcement mechanism that sits behind the patient choice duty. Under section 6F of the NHS Act 2006, NHS England "may investigate whether an integrated care board has failed or is likely to fail to comply with a requirement imposed by regulations under section 6E(1A) or (1B)" (i.e. the patient choice requirements). NHS England can also direct an ICB to remedy or prevent such a failure. The "patient choice requirements" themselves are the obligations set out in Part 8 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the "Standing Rules"). NHS England is also under a duty, under section 6G, to publish guidance on how it will exercise those enforcement powers. The investigation and direction powers, and the accompanying guidance duty, will all pass to the Secretary of State.

There is a notable statement in the impact assessment: NHS England has never used these powers. These powers have effectively laid dormant and they are untested. Either the transfer is of little consequence, or it may mean that, in new ministerial hands, the power is given a new life and used more readily.

Independent providers are likely to have seen a variety of approaches to the patient choice regime by ICBs across the country, and many will have experienced frustrations with the consistency and transparency of how a patient is actually offered the choice of any clinically appropriate provider.

Guidance and secondary legislation: the detail is yet to come

Perhaps the most important point here is that the Bill is only a piece of the jigsaw. Just as much of the detail of the patient choice regime is currently drawn from guidance, the same will be true moving forwards. The impact assessment states that "How this duty and enforcement powers would be implemented in practice will be detailed in secondary legislation or alternative non-statutory policies."

This means that the consultation, regulations and guidance that will follow will be key.

“Levelling the playing field”- a new exception

Patient choice does not sit in isolation. There is an existing requirement in the NHS Act 2006 for the Secretary of State to make provisions for NHSE and ICBs as to how they exercise their commissioning functions (in the NHS Standing Rules Regulations) and how they procure services (in the NHS Provider Selection Regime). As currently drafted, these functions must not be exercised "for the purpose of causing a variation in the proportion of services provided as part of the health service that is provided by persons of a particular description if that description is by reference to— (a) whether the persons in question are in the public or (as the case may be) private sector, or (b) some other aspect of their status." Some providers may have seen (and continue to see) a variety of situations that test the limits of this provision.

This duty, which the impact assessment describes as the "level playing field" duty, is to be qualified, so that the Secretary of State may exercise its functions in such a way as "to vary the proportions of activity by provider where it is in the interests of the health service to do so" (with emphasis added).

The key here will be this last underlined section. What will be considered to be in the interests of the health service? Is this the same as in the interests of patients? Is it in the interests of the health service for activity to be limited for independent providers and repatriated to NHS Trusts? What if this results in fewer options for patients and potential increase in waiting times? This is a provision to keep an eye on when we have the secondary legislation and guidance.

Our thoughts

The Health Bill has been framed as a straightforward transfer of functions when it comes to patient choice. To an extent, that may well turn out to be true, but the detail is important here. The extent to which the patient choice regime is properly implemented may, in the future, be investigated by ministers to a greater extent than we have seen with NHSE. It also remains to be seen how much flexibility ICBs will have to treat independent and NHS providers differently when that is in the "interests of the health service" - which is a very broad discretion on the face of it.

The next step will be to review and consider the secondary legislation and guidance and respond to consultations in due course.

If you would like to discuss this article or if you have any other questions, please contact Patrick Parkin, Lisa Mulholland, Elizabeth Marke or another member of the Burges Salmon team.