Last week we heard that NHS services throughout England will have a legal duty to charge foreign patients upfront, when treatment is non-urgent and not eligible to be free. If they cannot pay in advance, as of April 2017, overseas patients will have to forgo services, and be refused operations.
The announcement came from Health Secretary Jeremy Hunt during a media frenzy regarding the cost of tourists using the NHS, and overall aim is for the NHS to not have to chase costs of treatments for foreign service users.
On the back of this news, Lawyer Monthly reached out to a few experts in the field, who gave us their thoughts on the subject.
Marie Dancer, Managing Partner, Richard Nelson LLP and Medic Assistance Scheme:
Few would dispute that the NHS is at breaking point in terms of its capacity to provide the levels of care expected. The government has recently announced a new scheme of refusing non-urgent NHS treatment for patients who are not British or EEA nationals, unless the treatment is paid for in advance. Many express frustration at the extra burden being placed on NHS resources by so called ‘health tourists’.
A health tourist is someone who travels to the UK from out of the EEA, specifically to benefit from NHS treatment. Treatment for those in the EEA can be invoiced to the Department of Health for costs to be recouped from their governments under reciprocal arrangements. Whether this will continue post Brexit remains to be seen.
One of the real concerns is likely to be how NHS Trusts will identify in advance that patients are non-British or non-EEA and therefore required to pay for non-urgent treatment in advance. Given the diverse nature of our country, this is of course not achievable by sight of patients. Those requiring NHS treatment may in the future have to provide identification of their nationality. For most people that would not be problematic, as most people are able to provide a passport or a driving licence. However, neither of these documents are compulsory to hold and there will be many people, including those on the fringe of society, who arguably are the most vulnerable, who may not easily be able to provide satisfactory identification documentation. No-one wants to see vulnerable British people denied access to NHS treatment because of a scheme designed to relieve the NHS of the burden of international health tourists.
The second major question is who is going to be responsible for performing such identification checks on patients prior to their treatment. Doctor and nurses are not trained to make these assessments. Nor practically would this be desirable given the cost of their time. We would all prefer qualified healthcare professions focused on treating patients, rather than being bogged down by further paperwork relating to nationality assessments. Clearly such assessments are an administrative function. However, to exercise this function, in the short term, it will be necessary for NHS Trusts to expend money on this administrative function, through recruitment and training; before any cost savings will be seen. If indeed they will be, which will remain to be seen.
The third significant question, which is not a politically popular question, but is essential to consider, is whether it will in fact be more expensive to assess patients’ entitlement, process payments and deal with enforcement issues, then the scheme is designed to save.
Philip M.D. Grundy, Head of Catastrophic Injury, St John’s Buildings Barristers’ Chambers:
The issue of charging foreign patients is one of checks and balances, and is underpinned by a clash between the human, moral considerations and the economic facts at play. In my view, lawyers will be called upon by patients and their relatives in the future, unless the process is clear, understandable and simple.
Improved methods of reclaiming funds from foreign patients and countries is a logical avenue of discussion for a government seeking to relieve the increasing pressures on the NHS. The £140bn spent on the service last year is ten times higher than it was 60 years ago, even after adjusting for inflation, yet the UK is spending less of a percentage of GDP on healthcare than most EU countries. With staff seeing one million patients every 24 hours and attendances in A&E increasing by a third over the last 12 months, the pressure on the NHS is tangible.
With political rhetoric, certainly in the last twelve months at least, revolving around the unrealistic recovery of up to £500m in costs to the NHS, the topic of funding is a highly-charged one. Politicians in their quest for soundbites have hastened to claim that hundreds of millions of pounds can be recouped from abroad without any real consideration for how this can be sensibly and reasonably achieved. The reality is that the forecast is now for £346m to be charged, with the amount recovered a different figure.
The efficiency of reclaiming funds has been consistently below par in recent years, resulting in a clear disparity between the figures the NHS has been able to reclaim compared to what has been paid out. In 2014-15, the UK paid £674m to EU countries and Switzerland for the treatment of Britons abroad, but only received £49m in return. In the same year, Poland claimed £4.2m from the UK, yet paid out only £1.5m for NHS treatments – a drop in the ocean for a service costing £140bn last year alone. There can be little doubt that Brexit will change it still further.
Some hospital trusts have admitted they are not charging for services at all, while those that do generally have poor systems of recovery in place. There also exists some confusion about who should be paying for what. Charges determined by “ordinary resident”, not nationality, have created issues for hospitals, administrators, and medics, who have been burdened with the added responsibility of enforcing judgements on who should be charged for medical treatments. This, in many cases, could be for the Courts to determine.
The government’s latest proposals compound those issues. New legislation will see overseas patients that are not refugees or asylum seekers charged prior to treatments deemed ‘not urgent’. What constitutes ‘not urgent’, however, is unclear. This, again, is an issue that could well involve a Judge’s determination.
The idea that medical practitioners should have to make decisions on whether patients should give up their credit card details prior to treatment flies in the face of medics and administrators. It is an irresponsible and fractious approach that creates arguments about whether the patient is or isn’t a resident and whether their treatment is serious enough that no charge is incurred.
Instead, you could argue that travellers to the UK should have travel insurance. But that is perhaps too simplistic. Clearly government needs to provide a robust method of charging the country of origin – but more importantly, we need to have a simple, straightforward approach that isn’t a drain on valuable NHS resources with potential for legal costs.
A simple rule that clarifies if you are from abroad, you or your country pays would suffice. It is, after all, the mantra other EU countries operate under. We could have a bar code, akin to a supermarket, which records the services rendered, but that doesn’t help with entitlement to a “free” service or recoverability. Either way, this is something government is going to have to grapple with.
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