Healthcare (International Arrangements) (EU Exit) Regulations 2023

Lord Markham Excerpts

Wednesday 5th July 2023 Grand Committee

Moved by

[Lord Markham]

That the Grand Committee do consider the Healthcare (International Arrangements) (EU Exit) Regulations 2023.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, reciprocal healthcare arrangements enable UK residents to access healthcare when they live, study, work or travel abroad. They not only provide an added safeguard for our residents when they travel but support those with long-term pre-existing conditions to avoid them facing expensive insurance premia or funding private treatment. This is why the UK Government are proud to have concluded healthcare arrangements that provide our residents with greater access to healthcare in countries across the world, such as with the European Union, Switzerland and our overseas territories.

Last year, we amended our primary legislation that enabled the implementation of comprehensive reciprocal healthcare arrangements in the European Economic Area and Switzerland. Thanks to the Health and Care Act, which noble Lords played a crucial role in scrutinising, the UK can now implement comprehensive healthcare arrangements with countries around the world—not just in Europe—where it will be to the benefit of the UK. This means that we can implement arrangements that include the reimbursement of costs and exchange of data, such as the one we have with the European Union, across a wider geographical area where it is in the interest of the UK to do so. Overall, extending arrangements offers potential benefit for all UK residents, providing them with greater reassurance when travelling and deepening diplomatic ties with our international partners.

Following the amendments to our primary legislation, secondary legislation is now necessary to continue implementing our existing reciprocal healthcare arrangements, as well as future ones. I am pleased to introduce the regulations to the Committee. They will replace implementation regulations made under our former primary legislation, the geographical scope of which was limited to the European Economic Area and Switzerland.

While these regulations remain substantively similar to the regulations they replace, they also provide the necessary legal framework to implement any future arrangements with countries around the world. They work by conferring functions on the NHS Business Services Authority and local health boards across the UK to give effect to our existing healthcare arrangements. For example, they enable the NHS Business Services Authority to make payments, process applications and provide information to the public, including issuing the global health insurance card.

The regulations also confer functions on Welsh and Scottish local health boards so that they can deliver planned treatment provisions within our arrangements, which is an area of devolved competence. Until a Northern Ireland Executive are in place, we will save our existing implementation regulations to ensure that planned treatment can be delivered across the UK according to our obligations under the reciprocal healthcare arrangements that we have with the EU, EEA states and Switzerland. We have worked closely with the devolved Administrations in the drafting of the regulations and they have confirmed, through a formal consultation, that they are content.

We have included a Schedule to these regulations, which consolidates all the healthcare arrangements that the UK currently has with countries and territories around the world. It includes not only our arrangements with the European Union, which contain reimbursement provisions, but our existing international arrangements, where no money is exchanged and where the cost of treatment is waived, with countries such as Australia and New Zealand. To add a new country or territory to the Schedule, it must be amended by affirmative statutory instrument, providing noble Lords with the opportunity to scrutinise the implementation of any new arrangements.

The regulations enable the Secretary of State to make payments outside of an arrangement only when there are exceptional circumstances to justify the payment and only in countries or territories where a reciprocal healthcare arrangement with the UK is in place. Having this power means that we can support UK residents when they face difficulties and extraordinary situations when accessing healthcare abroad is critical. This will be accompanied by a policy framework, which we have developed and consulted on publicly. The framework will guide exceptional payment decisions while providing adequate flexibility for the Secretary of State to assess cases individually.

Finally, I take this opportunity to reassure your Lordships on concerns which were raised previously in the House about the interaction of reciprocal healthcare and trade. I reiterate that these regulations are not about trade deals or privatising the NHS; they are about implementing reciprocal healthcare arrangements and supporting UK residents to access healthcare abroad.

I am happy to bring forward this legislation today. These regulations are crucial to honour our current commitments and obligations under our existing healthcare arrangements, and to continue supporting the people who depend on these arrangements to access the healthcare they need while abroad. I beg to move.

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[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for his introduction to the SI and the other noble Lords who have spoken to it. For the record, we wanted to look very closely at it, given the discussions, commitments and reassurances made last year by the Government and the then Health Minister, the noble Baroness, Lady Penn, about the Government’s policy intentions on reciprocal health agreements during the passage of what is now the Health and Care Act.

We had strong concerns that any provisions under the Act which reflected post-Brexit arrangements should be confined to the implementation of reciprocal healthcare arrangements, not to the negotiation of international health agreements which could be used for wider and different purposes, such as the privatisation of parts of healthcare. The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 included explicit constraints to make such agreements on the powers of Secretary of State in this regard. We also had concerns that the new arrangements should not change the definition of future reciprocal healthcare agreements.

Reassurance from the Government that the purpose of the 2019 Act was not to implement trade deals and that reciprocal healthcare agreements do not relate to the commissioning and provision of services for the NHS were very welcome. We are therefore content that the SI properly reflects this; I thank the Minister for his reassurances in his opening remarks. We are also pleased that the affirmative procedure ensures that Parliament is able to be kept up to date with developments and that these issues are properly debated.

The Explanatory Memorandum is very helpful. I look forward to the Minister’s response to the issues raised by the noble Lord, Lord Allan, about scope, because they are important.

We recognise that the regulations are vital to implement international healthcare agreements following our exit from the EU. Reciprocal healthcare agreements support people to access healthcare in the listed countries. Those faced with the stress and worry of a healthcare emergency abroad will rightly expect suitable arrangements to be in place where possible. That is particularly true of people with a disability, those who are older or who live with a pre-existing or chronic health condition.

The amendments to the Act allow the Government to implement more complex agreements with the ability to make financial reimbursement at cost, as the UK currently does with many EEA countries, and confer further powers on the Secretary of State. Can the Minister outline further details about the Government’s plans for other international healthcare co-operation outside the EEA and Switzerland and what these plans might look like?

From our understanding of the SI, we think that payments can be made only if both the following conditions are met: the healthcare treatment is in a country with which we have an international healthcare agreement, and the Secretary of State considers that exceptional circumstances justify the payment. Can the Minister explain the Government’s thinking on what would constitute exceptional circumstances and how the policy framework might work? What guidance is being issued by the NHS Business Services Authority, which has certain administrative functions conferred on it through the SI?

The public consultation on the policy has just closed but we understand that the results and an analysis of it will be published this month. An early indication of the timetable and results would be welcome.

On the role of the NHS BSA, can the Minister provide more detail on the work currently undertaken to establish and maintain the public information and advice service on healthcare provision under relevant healthcare agreements, as set out in the SI? Again, the noble Lord, Lord Allan, mentioned this important function. The importance of transparency has been underlined. It will be crucial in the future to help people understand how reciprocal healthcare agreements work and can be accessed, to ensure they are doing all the right things to be properly covered, and to make claims, as the noble Baroness, Lady McIntosh, said.

I look forward to hearing answers to the questions about the issue of EHIC and GHIC. Specifically, can the Minister update the House on how the transfer from EHIC to GHIC has worked and whether any complications have been experienced—for example, the impact of the non-application to the UK of the EU cross-border healthcare directive, which enabled UK patients to pay for qualifying private healthcare in Europe and to receive reimbursement up to the amount that the treatment would cost the NHS? UK travellers can now no longer seek reimbursement, and I wondered if there had been any instances where the lack of awareness of that has caused problems—for example, for patients needing kidney dialysis where reimbursement for private treatment has not been allowed.

I appreciate that the Minister might need to come back to me on that. I think we are about to have a vote, but I look forward to his response.

[Lord Markham (Con)]

I will try my best, potential votes notwithstanding. I thank noble Lords for their contributions to today’s debate and for the generally received welcome. To try to answer them in turn, on the point made by the noble Baroness, Lady McIntosh of Pickering, I believe the arrangements made with the EFTA countries were signed on 30 June 2023. The expectation is that they will become operational by the middle of 2024—saved by the bell.

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[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

My Lords, I understand that another vote is coming, so I do not think there is any point in having another few minutes of the Minister—fun though that may be. Shall we twiddle our thumbs until the next vote?

[Lord Markham (Con)]

Unless I can finish before then.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

Unless the Minister can finish in the next two minutes.

[Lord Markham (Con)]

Perhaps.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

I will leave it in the Minister’s hands.

[Lord Markham (Con)]

I am happy to try. We will see. I will write a detailed letter after all this, so noble Lords can decide, when the bell rings, whether they want me back for more. That was a nice break in terms of being able to get some—

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[Lord Markham (Con)]

I guess it is probably easier if I recap. On the question asked by the noble Baroness, Lady McIntosh, on the EFTA countries, the situation was that they were indeed under EHIC, but under the Brexit arrangements they effectively fell out. These arrangements mean that they have signed, so they are back in again and will be covered there.

As regards how it works, first, as I believe the noble Baroness got salmonella at a Conservative event, I apologise on behalf of the ex-CEO of the Conservative Party. The way the system should work in most cases is that you can show your GHIC—or your EHIC, which is still valid—and, in most cases, state-to-state paperwork and payment should be made on that basis rather than you having to pay personally. Unfortunately, there are examples where you have to do that. That might be just because a hospital is not fully aware of it at the time. However, there is also an NHS Business Services Authority hotline that you can ring, which can help you through all of it.

On the questions from the noble Lord, Lord Naseby, there is no reciprocal arrangement with the Cayman Islands and the Pitcairn Islands at the moment. There is a quota system, whereby the Cayman Islands and the Pitcairn Islands—he did not mention the latter but it is another example of the same situation—are allowed to send a number of their residents to us each year and they pay on a fully costed basis. However, there is no reciprocal arrangement; it is just on a pay-as-you-go basis. However, I clearly understand the issue, given the desirability of the Cayman Islands; I personally volunteer for a ministerial mission to negotiate there—with help from all sides, clearly.

On the question from the noble Lord, Lord Allan, about the GHIC rather than the EHIC, it is indeed clearly an aspirational ambition. However, there are additional countries—I think I already mentioned Australia, New Zealand and Montenegro—so it is an E-plus; maybe it does not quite deserve a “G” at the front of it yet, but clearly that is the direction of travel.