Brexit and the NHS – the risk to the provision of healthcare as a fundamental matter of human dignity

Tamara Hervey & David Rowland | February 5, 2019 | Blog

The toxic debate about Brexit has inevitably spilled over into discussion about the future of the NHS. But have we fully quantified the risks to the NHS’s founding principles?

The main concern which has featured in the media and in Parliament is that the NHS – across the whole UK – will suffer significantly if the current arrangements with the EU are not in some way maintained in the future. Chief among these concerns is that the NHS’s heavy reliance on doctors, dentists, nurses and care workers from within the EEA means that anything that limits this form of free movement will exacerbate existing workforce shortages.

Without doubt these are substantial risks to the day-to-day functioning of the health service. In addition, a failure to reach an agreement on the terms of the UK’s withdrawal from the EU has the potential to significantly disrupt the supply of medicines and medical devices, which in turn will put lives at risk and cause unnecessary chaos and worry for patients and healthcare workers.

But while the focus is on how Brexit will impact on the day-to-day functioning of the NHS there are other threats to the founding principles of the NHS which have yet to be fully considered. These are not a direct consequence of the terms of the UK’s withdrawal, but they form a crucial part of the post-Brexit political environment.

The Overseas visitor charging regulations, first introduced in 2011, can be seen as part of a more general move away from the idea of the NHS as a publicly-owned and collectively-funded service that provides care on the basis of need. Instead, the NHS is now mandated by law to issue charges for certain healthcare procedures if some individual patients are not able to demonstrate that they are “ordinarily resident” in the UK.

These charges apply to anyone seeking non-emergency based hospital care (but not primary care) and mandate NHS Trusts to charge 150% of the cost of providing an NHS operation. In 2015-16, NHS hospitals levied charges of £69 million on overseas patients, with unpaid debts being handed over to debt collection agencies. Some NHS hospitals are charging upfront before care is provided – 2000 patients over a 9 month period have been asked to pay for their care in advance, which often means that much needed treatment is not received.

Because of the difficulty of distinguishing who is and who isn’t entitled to free NHS care, mistakes are inevitably made, particularly as NHS staff are required to exercise their judgment based on the “demographic data” available to them.

The case of Albert Thompson a UK citizen and resident for 44 years who was wrongly required to pay a £54,000 bill before the Royal Marsden Hospital would commence his cancer treatment is the most high profile example of how this shift in entitlement and access has the potential to affect anyone. Indeed, mistakes about entitlement go beyond the “Windrush” generation – the campaign group Maternity Action recently reported the case of an EU citizen who was wrongly given a bill of £4000 by the NHS after giving birth.

Irrespective of the form of Brexit that emerges over the next few weeks there is a very real risk that EU citizens who live and work in the UK will be affected by this new charging regime and a related risk that increasing numbers of NHS patients will be mistakenly billed for their care.

If the Withdrawal Agreement enters into force, that will protect the rights of EU citizens and their families who are in the UK or move to the UK before December 2020 (the end of the transition period). They will be able to access the NHS in the same way as now, and be able to rely on that right under the Withdrawal Agreement. Those who have been continuously resident in the UK for 5 years will be granted “settled status”, others will be granted “pre-settled status” until they have been resident for 5 years. As the rules currently stand, assuming settled and pre-settled status encompasses “ordinary residence”, those EU nationals and their families will be able to show they are entitled to access the NHS without paying a surcharge.

If the UK leaves the EU without a Withdrawal Agreement, the relevant law from 29 March 2019 will be UK immigration law. The current information about the settled status scheme envisages that it will apply even in the event of ‘no deal’. In that case, applications will need to be made by end December 2020 in order for EU citizens currently here to be able to demonstrate the “ordinary residence” that guarantees free access to the NHS. But unlike under the Withdrawal Agreement, the government could change these rules at any time, with only minimal parliamentary oversight.

And for anyone who comes to the UK after end December 2020, only UK immigration law will apply. The recently published Immigration White Paper (heralding new immigration law which the government insists will apply to the whole of the UK) indicates that the Immigration Health Surcharge could be applied to EU citizens who come to the UK after the end December 2020.

The Immigration White Paper describes ‘resetting the conversation’. EEA migrants’ position will change from one of ‘rights’ to one of conditional ‘permission’; based on skills, rather than on a shared EU citizenship. The government’s current estimate of the cost of providing NHS care to EEA citizens is £200m a year and so this is the financial burden which could be transferred to patients as a condition of permission to reside in the UK.

Obviously, if the NHS did begin to charge nationals from EEA countries this is likely to affect the UK’s ability to negotiate continuity of the current free healthcare entitlements of the 1 million or so British citizens who are living in Europe and so there will be a strong incentive for the government to avoid this. It is for this reason that the government has recently tabled legislation to allow it to make reciprocal healthcare agreements with other countries.

But we should not underestimate the extent to which the toxic debate about Brexit has started to corrode the NHS’s founding principles. Those who exploited public support for the NHS during the referendum campaign wrongly characterised it as a “British NHS for British people”. Rather than championing it as a health service based on healthcare as a matter of human dignity, or a shared set of European values, they painted it as a service which was under threat from immigration and appealed to the voters to give “our” money to “our” NHS rather than to “them” in Brussels/the EU.

And if the economic impact of Brexit does hit the public finances in the way that has been predicted this will make it even more difficult to fund the NHS properly. And if the conversation continues along these lines, this is likely to add to calls to restrict free healthcare to only those who can easily demonstrate their “Britishness”.

As a result, maintaining the founding principles of the NHS in the face of the post-Brexit political turmoil will be a much bigger challenge than sorting out disrupted medical supply chains, though we do not wish to diminish that risk. The potential risk of harm to both individual and population health if the NHS charging regulations are extended to European citizens in the UK is significant. It would signal a significant change in understanding about whom the NHS is for and entrench the idea of healthcare in the UK as permissive entitlement rather than a fundamental matter of human dignity.

The support of the Economic and Social Research Council (ESRC) grants ES/R002053/1 and ES/S00730X/1 is gratefully acknowledged.

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About the authors

Tamara Hervey

Tamara Hervey is Jean Monnet Professor of EU Law at the University of SheffieldSee all posts by Tamara Hervey
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David Rowland

David Rowland is CHPI's Director. He joined the organisation in 2019 after over a decade of working in senior policy positions within the healthcare regulatory sector. For David's full bio see our People pageSee all posts by David Rowland