Healthcare (International Arrangements) Bill

Justin Madders Excerpts

Wednesday 14th November 2018 Commons Chamber

[Justin Madders (Ellesmere Port and Neston) (Lab)]

Of course, the Opposition welcome any efforts to safeguard healthcare for the estimated 190,000 UK expats living in the EU and the 50 million or so nationals who travel abroad to EEA countries each year. We have concerns about some clauses, which we will address in Committee. It is 874 days since the UK voted to leave the EU, although for many of us it seems a whole lot longer. It is also a year since the European Union (Withdrawal) Act 2018 was introduced, so it is a matter of some concern that this Bill is only now being introduced.

As the Minister rightly said, the Bill gives the Secretary of State wide-ranging powers, including the power to amend primary legislation through a Henry VIII-style clause, but it places no obligation on the Secretary of State to report back to Parliament, even in the event that a reciprocal deal cannot be reached. That, combined with the scope for extensive use of statutory instruments under the negative procedure, represents to us an unacceptable lack of parliamentary oversight of an issue that will impact on the daily lives of millions of people. The Secretary of State ought to have learned from previous attempts that this Parliament does not react kindly when asked to sign a blank cheque. We will, therefore, seek to ensure that any new powers granted are proportionate and that all regulations are subject to the affirmative procedure.

We recognise the need for this Bill, because without a reciprocal agreement, UK citizens living in the EU, and vice versa, could find themselves having to pay for and make complicated arrangements to access healthcare in the country in which they live or that they visit. The biggest impact will be felt by the 190,000 state pensioners living abroad, and by those with long-term health conditions who could be prevented from travelling for business and leisure by prohibitively high insurance costs. There does appear to be some doubt about the figure of 190,000. The DWP website Stat-Xplore, which provides details of UK pensioners across EU and EEA countries, shows the figure for the EU27 as 468,793 in May 2018. I would be grateful if the Minister offered some clarification on that discrepancy.

We support the Government’s aim of retaining the current model of reciprocal healthcare. We are, however, extremely concerned that, with just over four months to go until we leave, there is still a great deal of uncertainty about whether all the hoops can be jumped through. Although the arrangements may continue as part of a withdrawal agreement if it gets through Cabinet, Parliament and the rest of the EU, there is just as much chance that we will need a whole new set of arrangements, which could radically alter the situation.

The Government’s impact assessment seems seriously to underestimate the consequences of a no-deal scenario, and I would welcome clarification from the Minister on that when he sums up. There are a number of reasons why I say that. As one would expect, the impact assessment sets out that the cost of establishing a future reciprocal healthcare arrangement on the same basis as the current one would be around £630 million per year, which is about the same as the cost of the current arrangements. However, the impact assessment goes on to say that, in the event of a no-deal scenario, the costs are expected to be similar or less, depending on the number of schemes that are established. Assuming that we still need and want to have an agreement with every country with which we do now, that would seem to imply that fewer people might need treatment. I doubt that even the biggest advocates of a no-deal Brexit would claim that leaving the EU without a deal will somehow miraculously lead to an upturn in people’s health.

Some clarity from the Minister would be appreciated, because the impact assessment appears completely to underestimate the complexity and cost of implementing what might end up being a diverse array of agreements. When they gave evidence to the House of Lords European Union Committee, the British Medical Association and the Royal College of Paediatrics and Child Health were clear that should no EU-wide reciprocal agreement be achieved, the significant costs of establishing bilateral reciprocal arrangements with EU and EEA countries would fall on the NHS. The BMA said:

“Managing access to health services by non-EU citizens is bureaucratically more burdensome than managing access for EU nationals currently”

which,

“in the event that the current reciprocal arrangements with the EU were to be discontinued, could have considerable resource and administrative implications for hospitals in both the UK and the EU.”

I therefore ask the Minister why those associated potential administrative costs have not been included in the impact assessment.

Expenditure on UK state pensioners and their dependants accounts for approximately 75% of the total amount that we spend on reciprocal healthcare and supports UK state pensioners and their dependants living in Europe. In 2016-17, that equated to an estimated £468 million. The Department for Health and Social Care has accepted that the system is extremely cost-effective for the UK, not least because treatment overseas is often cheaper than it is in the UK. For example, Spain’s latest average pensioner cost is €4,173, compared with £4,396 in the UK. If we were unable to reach a full agreement, there would be two likely outcomes. In some cases, UK expats would face having to fund private medical insurance. However, in many cases, particularly for those with chronic conditions or complex healthcare needs, such insurance could be prohibitively expensive, if it could be found at all. In those cases, the planning and funding provision for those individuals would fall on the NHS.

Analysis by the Nuffield Trust has found that, if British pensioners lost their healthcare cover in EU states and had to return to the UK to access care, the additional annual cost to the NHS could amount to as much as £1 billion. The trust also predicts significant additional resource implications. It said in a report from 2017:

“Looking at relative hospital demand by age group, we might expect 190,000 people to require 900 more hospital beds and 1,600 nurses, as well as doctors, other health professionals, and support staff such as porters. This number of additional beds would be equivalent to two new hospitals the size of St Mary’s Hospital in London.”

The implications for and potential demand on resources if arrangements are not made are huge. Of course, if the higher figure for pensioners in the EU is correct, those demands could more than double.

The European health insurance card benefits everyone who travels from the UK to EEA countries, but it is particularly beneficial for those with long-term conditions. The Academy of Medical Royal Colleges has set out that the EHIC enables such individuals to do so

“without the need for expensive travel and health insurance.”

One example of that is the 29,000 patients in the UK who receive kidney dialysis, typically three days per week. For those 29,000 patients, who can currently access dialysis across Europe—from Rotterdam to Rome—taking away the EHIC would take away their freedom. Travelling for work, for leisure or to visit family would be prohibitively expensive for them if we were not able to reach a comprehensive reciprocal healthcare agreement. Even if the Government were able to negotiate bilateral agreements, it would be of little comfort to a kidney dialysis patient who wished to attend a family wedding in Italy if they could access treatment only in France, Spain or Ireland.

The BMA and others have set out that patients with disabilities would be among the most affected if there were no reciprocal healthcare agreement. According to the BMA, without the EHIC, people with disabilities could find that travel or health insurance was

“especially expensive and potentially difficult to arrange”.

The Law Society of Scotland has reported that more than a quarter of disabled adults already felt that they were charged more for travel insurance, or simply denied it, because of their conditions. It is a matter of concern that the impact assessment does not explore the consequences of not reaching a deal for disabled people and those with long-term conditions. I therefore call upon the Minister to ensure that such an analysis is undertaken as an early priority.

Another question mark that hangs over the entire process is how dispute resolution will work, in either a deal or a no-deal scenario. Throughout the entire Brexit process, one of the red lines in the negotiations has been the role played by the European Court of Justice. However, I have yet to hear any suggestion about how, if we manage to reach a full reciprocal healthcare agreement with the EU27, disputes could be resolved without some reference, ultimately, back to the ECJ. The same would apply to bilateral agreements. If, for example, we reach an agreement with Spain and there is a disagreement about a payment made or the administration of the scheme—that could happen from time to time—who will determine which side is in the right?

When he gave evidence to the Health Committee, Martin McKee, professor of European public health at the London School of Hygiene and Tropical Medicine, considered this dilemma and said that

“as the two simplest ways”

of resolving dispute resolution

“have been ruled out by the Prime Minister, I do not see how you can do it.”

What kind of dispute resolution procedure does the Minister envisage either in a full agreement scenario, or in the case of bilateral agreements with individual states? Can he confirm whether the Government’s position is still that the ECJ will have no jurisdiction over such issues?

Clause 4 provides a legal basis for processing data to facilitate any agreements after the UK leaves the EU. Although facilitating data processing is a necessary element of any reciprocal agreement to support the making of payments for healthcare outside the UK, I note that appropriate safeguards are referred to in the Bill, and I ask for clarification about what those safeguards are and how they would work in practice. We have concerns that the Bill appears to allow the Secretary of State to hand personal data to private providers and to allow private providers to process that data. We will look to explore that further in Committee if the Minister, in winding up, is not able to satisfy us on the need for those powers, the extent to which they will be used, and what safeguards will be applied.

Another issue we will face, particularly if we are not able to agree a full reciprocal agreement, is cost recovery. Members have already referred to the challenges on that. The BMA set out clearly to the House of Lords Committee that:

“Managing access to health services by non-EU citizens is bureaucratically more burdensome than managing access for EU nationals currently”,

and that

“in the event that the current reciprocal arrangements with the EU were to be discontinued…could have considerable resource and administrative implications for hospitals in both the UK and the EU.”

As I set out before, it is deeply concerning that this potential challenge does not appear to have been considered in the impact assessment. Even under the current arrangements, cost recovery is something that we do not appear to have handled satisfactorily and the fault lies with the Government.

In 2012-13, the NHS charged only about 65% of what it could have done to visitors from outside the EEA and Switzerland, and only 16% of what it could have done to visitors from within that area. I accept that things have improved since then, and that the Department set itself a recovery target of £500 million overall and £200 million for EEA and Switzerland patients, which it hoped to achieve by 2017-18, but it still appears to be well behind on those targets. I would therefore be grateful if the Minister could advise us on the latest projections for that. He mentioned a figure of £66 million earlier, but it was not clear which particular period that related to.

The Law Society of Scotland was clear on the importance of this issue when it gave evidence to the Lords Committee. It said:

“as the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”

Even the Health Minister in the other place admitted that there was a “job to be done” on cost recovery. Irrespective of Brexit, it is deeply concerning that millions of pounds that should be spent on UK patients by the NHS is going to waste because of a failure to get a grip on cost recovery.

Giving evidence to the Public Accounts Committee, NHS Improvement said that it was going to monitor charging and cost recovery, and intervene where trusts have not met their statutory obligations. Will the Minister advise us on whether it has done so? If there is an additional administrative burden on the NHS in setting up new systems of cost recovery, will the Minister give a commitment that NHS providers will be adequately compensated?

It is a concern that the Bill gives the Secretary of State wide powers with little recourse to Parliament. Where are the checks and balances if the NHS ends up having to police 27-plus different sets of arrangements? What if the deals reached end up costing far more? What if our cost recovery continues to lag well behind what it should be? There needs to be greater parliamentary oversight of all these issues.

The importance of getting a good deal on reciprocal healthcare is more significant in the countries where it is accessed most, none more so than in the case of the island of Ireland. For anyone who has visited some of the more rural areas along the border between Northern Ireland and the Republic of Ireland, as I did during the summer, it is clear the extent to which crossing the border is a part of day-to-day life for those communities. The border area has a dispersed population of around 2 million people. Currently, this combined population offers the economies of scale necessary to provide health services, which would be completely unsustainable were a hard border to be put in place. Cooperation and Working Together, a partnership of health services from both sides of the border, has set out clearly that there are many examples where patients’ lives have been saved because of free and open access for emergency services across the border. If we do not get the right agreement in place, there is a real danger that we could see a situation where one ambulance drives up to one side of the border and another from the other side meets it to transfer a patient. These are the very practical implications of the Bill we are discussing today.

Reciprocal healthcare arrangements on the island date back to before the UK and the Republic of Ireland joined the EU, but they are now underpinned by EU law. We welcome the commitment by both Governments to ensure that the current arrangements will continue after Brexit, but the UK Government have yet to explain clearly exactly how they will approach these issues in practice. The border issue has clearly been a sticking point in the overall negotiations, so we will have to monitor very closely what the final deal says on that.

I want to say a few words about devolution. The Scottish and Welsh Governments have clearly and robustly articulated their support for a continuation of reciprocal healthcare agreements. I would be grateful if the Minister could set out the extent to which he has engaged with the devolved Administrations as part of that process. The House of Lords Committee was clear in its recommendations that there should be active participation of the devolved Administrations in setting the UK’s position on future arrangements, but I am not aware that anything has taken place to date. The Bill gives wide-ranging powers to the Secretary of State, but places no obligation on him to consult or engage with the devolved Administrations before making regulations. What assurances can the Minister give us that that will take place, particularly well ahead of any new arrangements being put in place?

In conclusion, this is a very short Bill, but one that will have far-reaching implications. The Secretary of State is asking for powers, which will have a direct influence on the day-to-day lives of hundreds of thousands of people without providing us with clarity on how he will use them. The Bill has been two years in the making and yet the impact assessment provided is totally insufficient, if not inaccurate, and there seems to have been little appreciation of the complexity of the task at hand or the implications if things go wrong. All of that is amidst the deal or no deal circus we have at the moment. The Government are asking for the powers to make agreements with other countries, but they cannot get an agreement around the Cabinet table. We will see, possibly by the end of the debate, whether that turns out to be correct.

We are in no doubt that the continuation of reciprocal healthcare is absolutely essential. We will not oppose the progress of the Bill today, but we will press for the safeguards needed to ensure that proper regulations and oversight are put in place, and that the interests of patients are protected.