Healthcare (International Arrangements) Bill

Baroness Manzoor Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 19th February 2019 Lords Chamber

[Baroness Manzoor (Con)]

My Lords, I thank the noble Lord, Lord Patel, for moving Amendment 11 and highlighting the importance of an appropriate definition of healthcare in the Bill.

We have adapted the definition set out in the Health and Social Care Act 2012 to include the additional element of ancillary care, as the noble Lord noted. This is to reflect where current arrangements provide for ancillary costs, such as travel costs, which do not strictly fall within the definition of healthcare. This would be for use in such circumstances as in France, where residents are reimbursed with a contribution to their travel costs when attending healthcare appointments. The definition of healthcare in Clause 3 ensures that we can implement arrangements that are based on the current EU arrangements, if negotiated in future.

The noble Lord indicated that this is a probing amendment and, as a former clinician, he will understand that limiting the definition to exclude certain conditions would be inappropriate, as it is not in the UK’s jurisdiction to determine what level of access to healthcare should be provided in another country. It is up to each country to determine what is available as part of its public healthcare system, as we do here in the NHS. The government definition would enable individuals to access healthcare on those terms under reciprocal healthcare agreements. The Government are committed to ensuring access to healthcare in line with current arrangements, and that UK nationals can continue to benefit from them, as they do now.

The Government have been clear during the passage of the Bill—this alights at the heart of the noble Lord’s question—that access to social care in England would not be provided through any reciprocal healthcare agreement. However, it is worth noting that some types of treatment related to dementia care can be medical in nature and may be provided by the NHS. As the noble Lord knows, in the UK, we treat all people with any physical or mental health condition. This demonstrates the complexity of the issues that narrowing the scope of such an important definition in the Bill may afford. I hope the noble Lord, Lord Patel, will therefore agree that the definition used in the Bill is the most sensible. However, I thank him—he is a noble friend—for raising this important issue. With the assurances I have given, I hope he will feel able to withdraw his amendment.

[Lord Patel]

My Lords, I thank the Minister for her comments. I raised this issue only to make sure that whenever such agreements are made, it is borne in mind that there may be implications for other conditions not directly regarded as mental or physical health conditions; for example, an increasing number of people have dementia. On that basis, I beg leave to withdraw the amendment.

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[Baroness Manzoor (Con)]

My Lords, in Amendment 15 the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Finlay, and my noble friend Lord Dundee raise an important issue on the importance of financial reporting and facilitating parliamentary scrutiny, which I can assure noble Lords that the Government are committed to ensuring. As the noble Baroness, Lady Wheeler, said, this was also the subject of Labour Front-Bench amendments in the Commons and is an issue that the Government have carefully considered. I would like to reassure the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee that—as the Minister, my noble friend Lady Blackwood, set out at Second Reading—the Government are committed to openness in managing public money. I understand the desire for transparency in this area. Noble Lords can be reassured that, as indicated by the noble Baroness, Lady Wheeler, there are existing robust annual reporting processes, overseen by the Comptroller and Auditor-General, that are used today and cover reciprocal health and other departmental spending.

Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts, and this will continue. This reporting allows for scrutiny by both Houses of Parliament, as well as the Public Accounts Committee. As now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. The Government are also committed to transparency and the prudent use of public money. This is why we have committed to going beyond the current reporting requirements.

As explained by the Minister, my noble friend Lady Blackwood, at Second Reading, the Government have committed to issuing an annual ministerial Statement on the operation of the reciprocal healthcare arrangements. The noble Baroness, Lady Wheeler, asked what this ministerial Statement would include. I am afraid that I cannot comment on that, because it is subject to any arrangements we enter into with the countries concerned. The Statement will be published as soon as is practical at the end of each financial year. It will include, but will not be limited to, reporting on the expenditure and income of reciprocal arrangements as a whole. This could include aggregated expenditure and income for the year, as well as country-by-country sums of expenditure and income. It could also provide an overview of the operation of arrangements, identifying areas of successful operation. I hope that that allays the fears that the noble Baroness, Lady Finlay, expressed. The types of reciprocal agreement entered into will determine the content of the Statement, as I said. However, I am happy to meet the noble Baroness to discuss these details further.

I hope that the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee feel reassured on our commitment to ensuring that there are sufficient and appropriate checks and balances in place on reciprocal healthcare agreements and agree that it is not necessary to set out in the Bill detailed provisions on reporting. In any case, as I said, the frequency and detailed content of a financial report should and could only be determined once reciprocal healthcare agreements have been made. Currently, the UK and other EU member states are able to collect data and report both nationally as well as at EU level, as provided for in the relevant EU regulations.

The department is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way as they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, the way that and frequency with which information is exchanged and the reimbursement mechanisms that will govern these new agreements. Each of these could differ from country to country. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner. Once these administrative details are known, the Government will be able to confidently speak to the specific measures that can be reported for each country. It is therefore unnecessary to set out detailed reporting provisions in the Bill for aspects that are subject to negotiations.

It must not be forgotten, however, that regardless of the specifics of any arrangements entered into, as with all departmental expenditure, reciprocal healthcare costs are and will continue to be authorised by the Treasury supply process and included in the department’s annual estimates, as well as being included in the annual resource accounts, which, as I said, are audited by the Comptroller and Auditor-General.

The noble Baroness, Lady Finlay, raised this issue, and it was raised earlier this evening. Let me be very clear that we do not need new front-line NHS processes to charge visitors and tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have processes in place for non-EU visitors. After exit day, instead of identifying EU visitors for the purposes of EHIC claims, they will be identified for the purposes of whether they are chargeable directly or covered by a reciprocal healthcare arrangement, in the same way as non-EU visitors are currently identified. They will then be charged as appropriate.

I will end by saying this. As well as the auditing that will be done by the Auditor-General, as I have mentioned, the Government have committed to lay before the House an annual ministerial Statement, which will provide an additional check and balance on the Government’s reciprocal healthcare arrangements. I hope that I have a given sufficient assurances to noble Lords, and that the noble Baroness will feel able to withdraw the amendment.

[Baroness Finlay of Llandaff]

Can the noble Baroness confirm whether she is absolutely confident that the current systems in place to pick up those coming from abroad who should not be treated on the NHS and who should be charged for their care are 100% effective? How many of those systems are not effective? I am concerned that, with a potentially increased number of people coming into the system, any system that is already not functioning well will just fall over unless more people are put in to administer it.

[Baroness Manzoor]

My Lords, no one can ever be 100% confident, but we are putting in place robust charging mechanisms. Each trust has an accountable person to look at how charging is working. We are working very closely with NHS organisations to ensure that, where charging needs to take place, it is done effectively and efficiently.

[Baroness Brinton]

I want to go back to the issue of the report. The noble Baroness read out a litany of different places where different items would be reported. Is there some benefit to having it all in one place? I do not know about other noble Lords, but I would be quite content if the annual ministerial Statement incorporated what is set out in the proposed new clause in the amendment—the information that parliamentarians think they want. But I wonder whether all parliamentarians, or anybody outside, would know all the different places to look for the odd sentence here and there in reports once a year.

[Baroness Manzoor]

I fully understand the point made by the noble Baroness, Lady Brinton. I always believe in a simplified place, but those are the accounting rules that we have for government and therefore they remain. We have gone the additional mile by saying that we will place on record a ministerial Statement at the end of each financial year and that this will include the areas I have indicated.

[Baroness Jolly (LD)]

The Minister referred to arrangements being put into NHS organisations to make this happen—but what about GP practices? If you talk to GPs, they will tell you that they are in private partnerships. Presumably the Government are talking to the Royal College. The last time I had a conversation with GPs was five or six years ago, when they were totally averse to collecting money for their services. Can the Minister clarify whether things have changed?

[Baroness Manzoor]

I can clarify that NHS trusts are funded on the basis of existing agreements and will provide additional funding for any new agreements reached within the powers of the Bill. The same thing will apply to GPs where charges need to be made for people who are not entitled to that care and do not fall within the reciprocal arrangements that we have in place. The procedure would apply as it currently applies and such people would be charged as appropriate. If they are part of the reciprocal agreements that we have, whether bilaterally or multilaterally, such charges will not be incurred.

[Baroness Wheeler]

I thank the Minister for her response. Whichever way you look at it, it is a complex system for reporting information across a wide range of different sources. The point made by the noble Baroness, Lady Brinton, about having the information in one place as part of the ministerial Statement needs to be pursued, and I hope that the Minister will do that. I noted her agreement to discussing it or exchanging correspondence about it, but important matters need to be set out in the ministerial Statement—albeit that the information is presented elsewhere—in order to reassure and inform us about how these agreements are working. With that proviso, I withdraw the amendment.

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[Baroness Manzoor]

My Lords, I am grateful to the noble Baronesses, Lady Thornton, Lady Brinton and Lady Finlay, for tabling Amendment 16 and providing the opportunity to address two important issues: the processes we have in place to recover costs from overseas visitors and how we support the NHS to deliver services to people covered by reciprocal healthcare agreements. As the noble Baroness, Lady Finlay, noted, there is complexity in the system, but this amendment proposes a new obligation upon the Secretary of State for Health to provide sufficient funding to the NHS to administer reciprocal healthcare agreements implemented using the powers in the Bill.

I reassure all noble Lords that the Government are committed to ensuring that the NHS is funded and fit for the future. Through the NHS long-term plan and the historic commitment of an extra £20.5 billion a year, we are working to make sure the NHS is fit for future patients, their families and NHS staff.

The noble Baronesses, Lady Brinton and Lady Finlay, raised two issues. They asked whether there will be 27 different agreements that require implementation. Our intention is to reach agreement with the EU so that there will be one agreement to implement. If agreements are negotiated with individual countries, it will depend on the content of the agreement being implemented, but I stress that we do not need new systems to implement them. We are not expecting costs to be much greater than at present. Every hard-working taxpayer plays a part in supporting our much-loved NHS, so it is only right that overseas visitors also make a contribution to the health service, whether that be individually, through the immigration health surcharge or through their Government reimbursing the treatment costs incurred.

The NHS has been responsible for delivering the current reciprocal healthcare arrangements for as long as they have been in operation and it has been sufficiently resourced to do so. Funding is distributed to NHS providers as part of general allocations. These support all the administrative costs associated with patient care, not just any costs associated with administering reciprocal healthcare agreements. That applies to clinical commissioning groups, which then apply funding to GPs.

We have robust administrative processes in place to recover costs from overseas visitors. These are managed by overseas visitor managers and their teams, who identify whether visitors are chargeable or are directly covered by an existing reciprocal healthcare arrangement.

Perhaps I may further reassure noble Lords that there are benefits for NHS providers who deliver services to those currently covered by EU reciprocal healthcare agreements. NHS providers receive an EHIC incentive payment of 25% of the tariff for the treatment provided to an overseas visitor covered by an EHIC. Trusts can reinvest these incentives in front-line services, meaning that we can continue to protect the most vulnerable in society and ensure that everyone receives urgent care when they need it. This is a scheme that we would certainly want to continue.

The Government have also made significant progress on charging overseas visitors and recouping funds where appropriate. However, as I indicated on the previous amendment, we want to go further—we are not quite there yet. Since 2015, we have increased identified income for the NHS with reciprocal arrangements by 40% and directly charged income has increased by 86% over the same period. Although we are satisfied that we are moving in the right direction, as I said, there is more to be done. That is why we are working with NHS Improvement to drive further improvements in the practice of cost recovery. A bespoke improvement team is working with over 50 NHS trusts to provide on-the-ground support and to share best practice.

I understand and commend the spirit behind this proposed new clause—we all want to ensure the best for our NHS—but it seems that it would replicate existing duties on the Secretary of State for Health. As the noble Baroness is aware, the Secretary of State is under an existing duty to promote a comprehensive health service, available to all who need the support that it provides. This duty encompasses ensuring that the NHS is funded for the services that it provides. Funding to provide treatment for overseas visitors is, and will continue to be, distributed to NHS providers as part of general allocations.

Further, I reassure noble Lords that any future reciprocal healthcare agreements that the UK implements through this Bill will be subject to thorough consideration and will need to take into account the existing duties on the Secretary of State to promote a comprehensive health service available to all who need the support that it provides.

I hope that my explanation has provided further reassurance to noble Lords that the Government are absolutely committed to protecting the NHS, and that the noble Baroness, Lady Brinton, will feel able to withdraw the amendment.

[Baroness Brinton]

I am grateful to the noble Baronesses, Lady Finlay and Lady Thornton, for their contributions to this brief debate, and indeed to the Minister for her response, even though I am somewhat disappointed by it. The point that all three of us were trying to make is that we are asking not for new processes but for reassurance that the costs will be reimbursed to trusts. As the Minister said, there is a general allocation, and one thing that we have discussed repeatedly since Second Reading is that there is a strong likelihood of substantially more non-EEA-type payments if there is a no-deal Brexit or if there are loads of different reciprocal arrangements that will make life very complex for hospital trusts and primary care providers.

As a brief illustration, currently when a non-EEA patient pays, half of it goes to the commissioner and half goes to the trust. The commissioner then pays half of it back to the trust and so it goes on. It is a complex arrangement. If we suddenly have 27 different arrangements just to cope with life after the EEA or with a no-deal Brexit, I can see that it will be very complex. It would be easy for NHS England—and, indeed, the Government—to miss trusts being unable to cope with the deluge of different arrangements they have to support.

At this stage, this is very much a probing amendment. I am happy to withdraw it this evening but I reserve the right to bring it back in the future. I beg leave to withdraw the amendment.

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The final element I want to speak to is that of non-NHS providers. This is rather important, because a number of non-NHS providers provide healthcare on behalf of the health system. It is not just the obvious ones that have been mentioned—I include GPs in that. It might also be private bodies carrying out NHS-funded care. A lot of diagnostic care is carried out by third parties. It might also cover providers of healthcare IT that records data. If we think of such systems as TTP, Cerner, Epic and so on that are used in hospitals, we would clearly want those bodies to be legally able to share that information. Of course, it needs to be connected with the healthcare purpose, but it is important that the Bill allows for that kind of latitude in a variety of ways, as I said. We must be absolutely clear—that is what I am seeking from my noble friend—that because of GDPR, because of the need and demand for adequacy on behalf of another country, a reciprocal partner, we would not be entering into the kind of arrangements that would bring the kinds of concerns that the public and, indeed, parliamentarians would have.

[Baroness Manzoor]

My Lords, I thank the noble Lords, Lord Patel and Lord Kakkar, even though the latter is not here, for Amendment 22, the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, for Amendment 23, the noble Baroness, Lady Thornton, for Amendment 24, and the noble Lord, Lord Patel, for Amendment 25. Each amendment allows me to speak to strict data processing protections in the Bill.

As my noble friend Lord O’Shaughnessy said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, such as the current arrangements we have with the EU. I reassure noble Lords that the Government are committed to the safe, lawful processing of people’s data in healthcare. Clause 4 provides a lawful basis for the processing of data in respect of future reciprocal healthcare arrangements that are outside the EU regulations mechanism. Data processing will be permitted only for the limited purposes set out in the Bill.

Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day. The purpose of including data provision in the Bill is to provide a transparent basis for the processing of personal data for the purposes of funding or arranging healthcare abroad. That is it, my Lords.

On this point, I address Amendment 22, tabled by the noble Lords, Lord Patel and Lord Kakkar, which would limit the scope of personal data processed to data directly related to health. Although I appreciate the sentiment behind the amendment, it would unfortunately undermine the successful operation of reciprocal healthcare arrangements. Personal data is defined in the GDPR as data relating to a living person who can be directly or indirectly identified from that data. Examples include someone’s name, date of birth or residential address.

For example, the current European health insurance card scheme allows for UK nationals to access emergency and needs-arising care when travelling, working short-term or studying in the EU. To establish someone’s eligibility for an EHIC, we need first to establish that the person is living in the UK on a lawful basis and properly settled. Were persons authorised under the Bill unable to process data other than that strictly related to health, they would be unable to make the checks to ensure that those receiving healthcare abroad were entitled to it. Allowing authorised persons to process non-health-related personal data also ensures that we can prevent misuse arrangements and limit fraudulent activity.

The noble Lord, Lord Kakkar, and others, expressed concern at Second Reading that provisions in the Bill must not open the door to the mishandling of patient data. I believe that this is what Amendment 24, tabled by the noble Baroness, Lady Thornton, is intended to address. I absolutely agree with the sentiment. I should like to set out why we think that it would prevent the successful operation of future reciprocal healthcare arrangements. They are made possible by the close co-operation of different parties and bodies, such as the Department of Health and Social Care, commissioners of Her Majesty’s Revenue and Customs, Ministers of the devolved Administrations, healthcare providers and their opposite numbers in other EU and EEA countries. The Bill is about the provision of healthcare. It must include all possible healthcare providers who may provide NHS care in the UK in the list of those with authority to process data for the purposes of implementing arrangements under the Bill—just under this Bill.

It is also worth reflecting on the place of healthcare providers in the current EU arrangements to illustrate the vital role that they play in both the commission and delivery of healthcare abroad. Currently, under the planned treatment route, known as the S2 route, a UK resident may decide to seek planned treatment abroad. As part of the procedure, the UK resident must visit a healthcare provider in the UK to have such treatment authorised. The clinician will provide written evidence that the person has had a full clinical assessment, which must clearly state why the treatment is needed in the person’s circumstances and what the clinician considers to be a medically justifiable period within which they should be treated—again, based on their circumstances.

Under existing arrangements, this function can be served only by a medically trained healthcare provider. This paperwork is then passed to NHS England or the comparable authority in the devolved Administration—that answers a point made by the noble Baroness, Lady Finlay—for processing. Many of these persons are provided for by Clause 4(6)(b), which refers to NHS bodies. However, some NHS services in England are provided by non-NHS bodies, as was rightly pointed out by my noble friend Lord O’Shaughnessy. For example, some primary care providers, such as GPs, may not be captured by this list of NHS bodies. However, they could be involved in pre-authorisation for planned treatment and so would need to process data in that regard. Such providers not also being termed “authorised persons” may limit what reciprocal healthcare arrangements we could implement under the Bill; it could even prevent us fully implementing an agreement. Under existing arrangements governed by EU regulations, some private providers in the UK already process patient data, which is perfectly legal and proper. Of course, data protection safeguards apply to private providers too.

To further allay any other fears, I remind your Lordships that this clause contains protections to guard against any misuse of data. The persons who can process data for the purposes of the Bill are limited to “authorised persons”—quite rightly, as the noble Lord, Lord Patel, said. The list of such persons can be amended only by way of statutory instrument; the term cannot just be given automatically to anyone. The Government included a delegated power in Clause 4(6)(e) to amend this list because future arm’s-length bodies may need to process personal data to enable reciprocal healthcare arrangements to operate effectively. Amendment 25 in the name of the noble Lord, Lord Patel, would limit that ability. I appreciate that that is out of concern for the safety and security of patient data—a sentiment I share totally—but the amendment would undermine the successful operation of future reciprocal healthcare arrangements.

As the noble Lord knows, the existing reciprocal healthcare arrangements are part of a complex web of systems. They rely on the well-spirited co-operation of a number of parties and bodies, which share accurate and relevant data in a prompt fashion. That extends from patients themselves all the way up to healthcare providers and public sector administrators. In time, public bodies change: they are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State powers to respond to such changes.

Again, I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data, both now and in future. In doing so, I address Amendment 23 in the names of the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, which honourably seeks to include further principles for the safe processing of data in the Bill. As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill.

As has been said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, like our current arrangements with the EU. Before I move on, I will answer a couple of the questions asked by the noble Baroness, Lady Thornton, about the Commons data briefing. I understand that officials met Julie Cooper MP, although I am not clear about the written briefing. However, I will pass the issue on to the Minister and bring it to his attention.

I have already covered data protection in the devolved Administrations, which would have to apply under both the GDPR and the DPA 2018. Of course, I would be happy to meet noble Lords should they wish to discuss those issues any further. My noble friend Lord O’Shaughnessy is right to say that we cannot enter into reciprocal agreements if the other country does not meet our data protection standards.

In the light of the assurances I have given and the safeguards in place to protect people’s information, I hope the noble Lord feels able to withdraw his amendment.