Draft Reciprocal and Cross-Border Healthcare (Amendment etc.) (EU Exit) Regulations 2020

Jo Churchill Excerpts

Wednesday 4th November 2020 General Committees

[The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill)]

I beg to move,

That the Committee has considered the draft Reciprocal and Cross-Border Healthcare (Amendment etc.) (EU Exit) Regulations 2020.

It is a pleasure to see you in the Chair, Mrs Miller, and to serve under you. My right hon. Friend the Secretary of State for Health and Social Care has laid before the House this statutory instrument, which concerns reciprocal and cross-border healthcare. In summary, it is a technical instrument that updates the 2019 legislation, taking into account the withdrawal agreement, which was not in place when the legislation was made in 2019 and offers significant healthcare protections for those relying on reciprocal healthcare arrangements in the EU. The aim is to ensure that the statute book is ready for the end of the transition period.

The Government are introducing the statutory instrument under section 8 of the European Union (Withdrawal) Act 2018 and under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. On 31 December 2020, the transition period will end and the EU withdrawal Act will automatically retain the relevant EU law, and the domestic implementing legislation, in UK law. If we did not legislate further, the retained law would be incoherent and unworkable. There would also be uncertainty and a lack of clarity about patients’ rights to have UK-funded healthcare in EEA countries and Switzerland.

In April 2019, the Government made three statutory instruments to correct the deficiencies in retained EU law relating to reciprocal healthcare, as part of the UK’s preparations for leaving the EU without a deal. The UK has since agreed with the EU reciprocal healthcare arrangements under the withdrawal Act and entered a transition period. The purpose of this instrument is basically to fix this issue—first, to reflect the transition period and the withdrawal agreement by making consequential and technical amendments to four EU exit instruments, which will come into force on 31 December. Those are the Social Security Coordination (Reciprocal Healthcare) (Amendment etc) (EU Exit) Regulations 2019, the National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU) Exit) Regulations 2019, the Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019 and the Health Services (Cross-Border Health Care and Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019. I will refer to those, for ease, as the 2019 EU exit regulations.

The purpose of this instrument is, secondly, to update references in NHS legislation to EU forms, to entitlements under EU treaties and to concepts such as “EU rights” that will no longer be appropriate after the end of the year; and, thirdly, to set out clearly the rights of patients in a transitional situation who will access pre-authorised or ongoing treatment in the EEA under the cross-border healthcare directive following the end of the transition period. This instrument will allow the Government to complete the funding of those patients who are in the middle of treatment at the end of the year, or if they have already applied for authorisation.

As the instrument is quite technical, I am sure that members of the Committee will welcome a summary of the 2019 EU exit regulations. As Committee members all know, those regulations were made in preparation for our exit from the EU and will come into force at the end of the transition period. They revoked the EU reciprocal healthcare legislation and social security co-ordination regulations, as well as the domestic legislation implementing the cross-border healthcare directive, in relation to England, Wales and Northern Ireland. As the arrangements are inherently reciprocal, it would not be possible to operate them without reciprocity from the member states.

The regulations enabled the continuation of reciprocal healthcare arrangements until 31 December 2020, to the extent that that was agreed with member states through bilateral reciprocal healthcare arrangements. They made provision for the UK to protect patients in a transitional situation accessing reciprocal healthcare on exit day in the event that the UK left the EU without a deal, in so far as that was possible unilaterally. The regulations conferred functions on the NHS Business Services Authority and on health bodies—that is, NHS England and devolved Administrations’ health boards—to implement aspects of reciprocal healthcare arrangements. That includes the administering of healthcare payments.

In addition, in March 2019 the House passed primary legislation—the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019— providing the legal basis for funding and implementing future reciprocal healthcare arrangements.

I will now outline the reciprocal healthcare arrangements that have been agreed with the EU under the withdrawal agreement since the 2019 EU exit regulations were made. In practice, the agreement that we have reached with the EU means that there are no changes to the reciprocal healthcare access for state pensioners, workers, students, tourists and other visitors, the European healthcare insurance card scheme, or planned treatment before 31 December 2020.

From 1 January 2021, reciprocal healthcare arrangements will not change for those individuals who are in scope of the withdrawal agreement. This means that, regardless of any future healthcare arrangements, state pensioners and workers who have moved to the UK or the EU and are resident there before 31 December 2020 will continue to have lifelong reciprocal healthcare rights for as long as they live in that country and are covered by the agreement.

The agreement also protects UK and EU nationals who find themselves in a cross-border situation over the end of the transition period. For example, somebody whose holiday begins before 31 December 2020 but ends afterwards can continue to use their EHIC to access any treatment they need until they leave that country by travelling to another EU member state or returning to the UK.

A student who habitually resides in the UK but is studying in the EEA or Switzerland before 31 December 2020 can continue to use their EHIC to access immediate and necessary healthcare in the country of study for the duration of their course. People receiving planned medical treatment in the UK or through the EU S2 route will be able to commence or complete their treatment, provided that authorisation was requested by 31 December 2020. This provides certainty to patients, as it guarantees that they will be able to complete their course of treatment.

I will now address the amendments made by the instrument and the reasons for making the changes now. As I have just set out, the withdrawal agreement protections mean that several transitional measures under the 2019 EU exit regulations have now been superseded by the withdrawal agreement protections. Therefore, they are being revoked through this instrument.

One element, namely cross-border healthcare under the cross-border healthcare directive, was not included in the withdrawal agreement. It will no longer apply as a matter of EU law from 31 December 2020. The cross-border healthcare directive is separate from the reciprocal healthcare rights under the social security co-ordination regulations, for example for pensioners, students, tourists and workers, which relate to the free movement of people. The directive is linked with the single market and the free movement of services, which is ending with the UK’s departure from the EU. The directive facilitated patients’ rights to travel to another EEA country and to receive qualifying healthcare and reimbursement, capped at the cost of state-provided treatment in their own country.

As the cross-border directive is ending, this instrument will ensure that the Government can finish funding those who have received or applied for treatment through this route, and those who are in the middle of treatment at the end of the year. This will provide reassurance for patients, as people will not face an abrupt change in their access to healthcare at the end of the year, and it ensures that their reimbursement rights are protected.

The withdrawal agreement also means that the 2019 provisions that allowed the UK to maintain current reciprocal healthcare arrangements until the end of 2020 are no longer required. These provisions were subject to bilateral agreements with EEA countries and Switzerland. The withdrawal agreement automatically continued current agreements with those countries during the transition period and therefore the 2019 provisions are being revoked as redundant.

As many hon. Members will know, the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 provides powers to give effect to healthcare arrangements, including those that may be comprehensive, bespoke or different from the current arrangements provided by the EU framework. The Act also provides the legislative framework to implement long-term complex reciprocal healthcare arrangements with the EU.

Finally, other technical amendments made by the instrument include updating EU references that will no longer be appropriate following the end of the transition period. The devolved Administrations have been consulted in the drafting of this instrument at every stage and they have provided consent for the Government to proceed. The instrument also makes provision in relation to and on behalf of Northern Ireland and Wales.

I am grateful for the continued collaborative approach in this area. Indeed, the Department and the devolved Administrations have had excellent engagement and clear arrangements in place to ensure the implementation of reciprocal healthcare arrangements after the end of the transition period. I am pleased to say we have worked openly and collaboratively with operational partners in NHS England, NHS Improvement and the NHS Business Services Authority, ensuring that reciprocal healthcare arrangements will be successfully implemented.

Looking to the future, reciprocal healthcare arrangements with the EU are subject to ongoing negotiations. The UK has been clear that it wishes to establish arrangements that provide healthcare cover for tourists, short-term business visitors and service providers.

I am also pleased to report good progress with Ireland on agreeing a specific healthcare arrangement between the UK and Ireland, under the auspices of the common travel area. That will seek to ensure that the residents of the UK and Ireland continue to be able to access necessary healthcare when visiting the other country, as well as benefiting from co-operation between UK and Irish healthcare providers, regardless of the outcome of negotiations with the EU.

Finally, as this instrument proposes no significant changes to the current regulatory regime, we estimate there will be no significant impact on industry or the public sector. As this instrument makes technical amendments, and does not introduce new policy, we have not conducted an impact assessment.

In summary, the overarching aim of the instrument is to ensure that the UK statute book is functional, reflecting the withdrawal agreement and EU exit. It also ensures that reimbursement rights are provided for people accessing healthcare at the end of the transition.

--- Later in debate ---

[Jo Churchill]

There was quite a lot there, and I will try to canter through what I can. As the hon. Lady knows, my door is always open. The majority of what she alluded to is the subject of ongoing negotiations, which are currently being handled with the Foreign, Commonwealth and Development Office. We are working hard to ensure that people can enjoy the travel that they have enjoyed thus far.

I fully recognise that it is challenging for those with pre-existing conditions. I know how difficult it is to secure travel insurance in the current environment when travelling outside the EU. However, the Money Advice Service has recently launched an insurance directory for people with serious medical conditions, which brings together specialist firms with the aim of making it easier to find travel insurance that provides the right health cover. Working with the FCDO, the DHSC stands ready to support UK nationals who might find themselves in difficulty.

On cost recovery, identified income from NHS costs for overseas visitors has increased significantly over the past five years, rising to £760 million in 2019-20. NHS Improvement is working closely with NHS trusts to improve cost recovery. As I said, we have been most grateful for the work that the NHS Business Services Authority has done with us to enable that work to go forward. As the hon. Lady well knows, many of these things will become clearer in the next few weeks, but there have already been good conversations with some member countries. It is hoped that we will shortly be able to have more clarity on the matter.

I want to assure members of the Committee that the overarching aim of the SI is to ensure that the UK’s statute book is functional by reflecting the withdrawal agreement and EU exit, and to ensure that reimbursement rights are provided for people accessing healthcare at the end of the transition period, when the directive will no longer apply to the UK. The withdrawal agreement provides a robust framework for reciprocal healthcare, which includes significant transitional and longer-term protections, as the hon. Lady mentioned. To support people in understanding their entitlements, the Government have published guidance on people’s rights under the withdrawal agreement on gov.uk, and we are keeping the information updated regularly so that people are clear about the reciprocal health rights, their rights and the actions they might need to take as they prepare for the end of the year.

Looking ahead, reciprocal healthcare arrangements with the EU are subject to ongoing negotiations, as I said earlier. Finally, I thank again the devolved Administrations and our operational partners in the NHS, who are working extremely hard. Their collaborative and constructive engagement means that we have clear arrangements in place and assurance for patients’ healthcare at the end of the year. I commend the regulations to the Committee.

Question put and agreed to.