National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017

Lord O'Shaughnessy Excerpts

Thursday 16th November 2017 Lords Chamber

[Lord Leigh of Hurley (Con)]

My Lords, the National Health Service is a cherished national institution, historically the envy of the world, and in theory none of us has a problem with overseas visitors using it. However, we currently have a huge issue of capacity. Unfortunately, it is not clear that we have the capacity to treat on the NHS all the overseas visitors that we would like to treat. Already the NHS is in breach of vital targets, such as waiting times for operations and to start treatment for cancer. Consequently, our cancer survival is the worst in western Europe, Canada and Australia. Only a few countries in eastern Europe have worse survival for common cancers.

We all love the National Health Service, so it is only right that anyone using our very valued NHS should make a fair financial contribution to help ensure its sustainability and the continued provision of world-class facilities—just as the British taxpayer does. Although I do not agree with the Motion, I am pleased that the noble Lord, Lord Hunt, tabled it, because it allows this House the opportunity to discuss matters relating to it, and the implementation.

I have no interest to declare, but I have been taking an interest in health tourism since I raised an Oral Question on this subject in March 2014, and we have seen great progress from the Government since then. Indeed, it was mentioned as an objective in my party’s manifesto. Over the past four years the Government have prioritised improved cost recovery, and as a result we have achieved more than ever before, with identified income for the NHS from overseas visitors quadrupling from £89 million to £360 million. All that income is, of course, directed back into front-line services. That sounds good. However, it should be recognised that £200 million of the £360 million comes from the immigration health surcharge, and in return 450,000 IHS visas are issued every year. Therefore, for £200 for immigrants and £150 for students—a subject that has been debated in this House—free NHS treatment is offered, without exclusion of pre-existing conditions, for nearly half a million people.

The regret Motion shows that the noble Lord, Lord Hunt, is concerned about racial profiling but, at the time of registration and to avoid any form of discrimination on arrival for a new hospital appointment, the same baseline question must be asked by an overseas visitor manager of every patient, in every department—using, according to the guidance, these exact words:

“Where have you lived in the last 6 months?”.


If the patient replies “In the UK only”, no further questions are asked regarding residency or immigration status. That is it. If the answer given is yes, there are to be no further questions. I fear that it will soon become common knowledge that, in the NHS, care is free to anyone who answers yes to this single baseline question.

This is spelled out in chapter 11, on page 88, of the Department of Health Guidance on Implementing the Overseas Visitor Charging Regulations. Furthermore, it clearly states at chapter 11.16:

“Administrative staff must avoid discrimination when asking these questions”.


Needless to say, vulnerable groups will be excluded from up-front charging. The guidance issued by the NHS specifically excludes asylum seekers, trafficked people and every other variety of vulnerable grouping. Furthermore, the guidance confirms that up-front charging will apply only to patients presenting for elective treatment. GP services and A&E are, of course, specifically excluded.

Health tourism is a huge issue. On 1 February 2016, my noble friend Lord Bates, the then Minister in this department, gave an estimate to the House that the cost to the NHS was some £2 billion. Possibly unlike the noble Lord, Lord Hunt of Kings Heath, I am pleased that the Government are now running 35 pilot schemes in 19 NHS trusts to ask patients for two forms of identification to show ordinary residence. Again, this is just for elective surgery, for which there is plenty of time to plan, not emergencies such as complicated pregnancies, where we have seen real evidence of people coming specifically to the UK and literally being taken to hospital from the airport for free—for them—using extremely expensive medical assistance. Needless to say, in Europe if one is unfortunate enough to have to go to hospital, anecdotal and other evidence says that the first thing the hospital asks is to look at your insurance or E111. Our system of state-funded and provided medicine has for too long been lax in properly obtaining payment where it is due.

The real issue we should be discussing is how inadequate we are in terms of OVMs. In September 2017, Professor Meirion Thomas, who has become the country’s expert in this area purely as a matter of public service, sent freedom of information requests to NHS trusts. He asked eight acute trusts in London, two acute trusts in Birmingham and eight acute trusts in Greater Manchester for details of their OVMs. The trusts in London and Birmingham do have OVMs, but a grossly inadequate number. I will not bore your Lordships’ House with the numbers but the proportions are frightening. However, in Manchester, the results are even worse. Only one trust—the Christie hospital—has an OVM, and I would be pleased to provide my noble friend the Minister with details, should he so wish. This research proves that the NHS is not prepared for new legislation: seven acute trusts in Manchester have no mechanism for up-front charging. Therefore, I am afraid that I cannot support this regret Motion. The question we have to ask at another time is not how up-front charging can work in terms of the Motion, but how we are going to implement this to ensure a fair playing field for those who pay for and deserve proper treatment.

[The Parliamentary Under-Secretary of State, Department of Health (Lord O'Shaughnessy) (Con)]

My Lords, I thank all noble Lords who have contributed to the debate. While, as ever, I disagree with the Motion in the name of the noble Lord, Lord Hunt, I am grateful to him for raising the topic of cost recovery for the NHS from overseas visitors. It is a very important policy issue and it is crucial that the objectives of these regulations, and the safeguards that we have put in place, are discussed and understood by Members of the House.

In July this year, my department introduced amendment regulations to extend and improve the recovery of NHS costs from overseas visitors who are not ordinarily resident in the UK. This followed a period of public consultation in 2015-16. The Government’s response to that consultation, which set out our intentions, was published in February 2017.

Let me first be clear about the principles that sit behind our policy on cost recovery. As my noble friend Lord Leigh has said, the NHS is a cherished national institution. It is paid for by millions of British taxpayers, who care deeply about it being used fairly, so we must protect it carefully. Our country has always welcomed visitors and the NHS is no different, but I hope noble Lords also agree that it is only right that, when using its services, visitors should also make a fair financial contribution to the NHS’s sustainability. On that basis I welcome the support in principle of the noble Lord, Lord Hunt, and the noble Baroness, Lady Hamwee, for cost recovery. However, it would be wrong not to point out that, when specific proposals come forward, they seem less robust in offering that support.

This principle was not introduced by this Government; regulations and guidance requiring cost recovery from overseas visitors have been in place for over 30 years, as my noble friend Lady Redfern pointed out. As the number of visitors to the UK has grown over the years, the Government have supported the NHS to identify more income than ever before, quadrupling that income over four years to £360 million. The regulations we are discussing today continue this policy of seeking fair payment for NHS services provided and allow the NHS to take further action to support cost recovery in a way that is more efficient, more equitable and more effective.

--- Later in debate ---

[Baroness Taylor of Bolton]

In the list the Minister gave, he did not deal with the point that the noble Baroness, Lady Hamwee, and I raised about failed asylum seekers who are still living in England.

[Lord O’Shaughnessy]

For clarity, they are not covered under the exemptions.

The second change the amendments make is to the requirement that any care not deemed immediately necessary or urgent by a clinician is paid for up front. The published guidance, again, for nearly 30 years, has recommended this. This practice ensures that a chargeable patient can make an informed choice about their care and therefore does not unwittingly incur debts when they could instead, for example, choose to wait for treatment until they have travelled home. Given that our NHS is facing unprecedented levels of demand, I hope noble Lords will agree that mandating this position is a sensible approach and that it will help make sure that all users of the NHS make an equitable contribution to ensure its continued success and viability.

The noble Lord, Lord Hunt, has asked whether this practice will not create barriers between vulnerable patients and treatment and result in racial profiling as the front line seeks to determine eligibility for free care. I have already drawn noble Lords’ attention to the exemptions in place and the fact that all GP and A&E services remain free for all. I am also clear that immediately necessary or urgent treatment—such as all maternity services—will never be withheld, regardless of the patient’s ability or desire to identify themselves or pay. To reassure the noble Baroness, Lady Taylor, and other noble Lords, it is for clinicians, and no one else, to determine whether a treatment is immediately necessary or urgent.

On whether patients may face discrimination, this is always unacceptable and not compliant with anti-discrimination legislation. As my noble friend Lord Leigh pointed out, our guidance is clear that simple, short questions should be asked by trained staff of all patients whose records do not already indicate residency status to assist in identifying those not eligible for free care. That information can then be captured in the patient record for the future.

To support the implementation of these regulations, we have developed with front-line staff a “cost recovery toolbox” containing extensive guidance and template letters to patients and clinicians, as well as patient and staff-facing leaflets and posters and a web-based forum for peer support. As my noble friend Lady Redfern pointed out, working with NHS England and NHS Improvement, the department has published operational guidance to support the introduction of the regulations. This includes an average price list to provide consistency in up-front charging. The department has recruited a senior, experienced cost recovery team of NHS professionals who have led improvement visits to over 20 NHS trusts over the last six months. Action plans are in place for each trust and the team will support improvement and the sharing of best practice across the wider NHS.

I would like to end on an issue which has been raised by many noble Lords in this debate: the assessment carried out before we introduced these changes. As I have explained, up-front charging did not represent a change in policy, but instead has existed for many years before the consultation on other amendments. Over the course of the consultation and decision-making process, the Government carefully considered the impact the charges may have and published a full impact assessment alongside the regulations. This concluded that the package of changes would identify up to £40 million a year for the NHS. This is additional income and takes into account any administrative costs associated with the changes. I will also place in the Library copies of the equality assessments carried out by my department to inform the regulations, so that Members of the House will be able to review how the impact on vulnerable and protected groups was very carefully considered prior to the introduction of these changes.

All noble Lords have asked about the implementation of these changes and it is right, of course, that we proceed cautiously and sensibly and that we review how we are doing. So I am very aware of the need to keep the impact of these regulations under careful review in order to make sure they are implemented as planned and with no unintended consequences. My department will therefore undertake a full, formal review of how these amendment regulations are implemented, and monitor delivery closely, particularly where healthcare is provided to the most vulnerable. If further action is needed I will commit to update the House accordingly.

I hope I have been able to reassure all Members of this House about the long-standing principles that underpin our approach to cost recovery, the care that has been taken to protect vulnerable groups, and the reflective approach we will take during the implementation of these policy changes. I believe that they provide an equitable and reasonable step forward in making sure that all the NHS’s users, wherever they come from, make a fair contribution to the sustainability of the NHS, which is what British citizens expect. On that basis, I ask the noble Lord, Lord Hunt, to withdraw his Motion.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to all noble Lords who have taken part in this debate. The fact we spent nearly an hour on it as last business on a Thursday is testimony to the importance of the matter, which is why I welcome so many noble Lords having stayed to take part. I will not push this to a vote, and I will withdraw the Motion, but I do think it is an opportunity to raise some very important points with the Government.

First, the noble Baroness, Lady Hamwee, made some very important points about the analysis of the impact assessment, the doubtful financial benefits set against the bureaucratic costs, and the impact this may well have on some of the most vulnerable people—the very people who, not just from their point of view but the public health point of view, need to access these services.

Secondly, from the evidence that I have received—and I have received many such examples—there is a real concern that people who are legitimately entitled to NHS services may get turned away. The noble Baroness, Lady Hollins, rightly asked what the safeguards were to prevent this.

I think it right that we talk about racial profiling because again there is some evidence that, in spite of what the Minister said and what is promised in guidance, this is taking place in some parts of the country. The NHS has many organisations—we have a lot of community organisations—but it turns out that staff who are given such responsibility may not be aware of the importance of this issue and its sensitivity. The obvious case here is British people with foreign-sounding names being challenged in a way which I think is inappropriate.

The Minister did not respond to the point from the noble Baroness, Lady Hamwee, about the Home Office requiring medical records. I do not know whether he will be prepared to respond to her in writing; I understand that the question goes much wider than his brief today, but I am concerned about the ethics of the Home Office requiring people to open their medical records.

The noble Baroness, Lady Hollins, was of course right to point out the barrier to people with mental health and other disabilities. This is not just about who is eligible: having to produce evidence to legitimise a right to treatment could prove difficult for vulnerable people who find everyday living hard and challenging.

Like my noble friend Lady Taylor, I say to the Minister—the noble Baroness, Lady Redfern, and the noble Lord, Lord Leigh, both spoke about this—that I have no problem with the principle of cost recovery. I accept that it is right that the NHS seek to recover costs from the people who are not eligible for NHS treatment. My problem, particularly with these regulations, is that I have a feeling they will be counterproductive and I doubt they will raise very much in the way of resources. My noble friend also teased out the point about the position of failed asylum seekers, who seem to be particularly vulnerable. I welcome what the Minister said about unintended consequences; that is a very important point.

Operational guidance, which the Minister referred to, is one thing. I would have preferred to see some of the points he has made and reassurances he has given in the regulations, rather than operational guidance. I also noted with great interest what he had to say about accident and emergency and GP services. From the confidence with which he said it, can I take it that the Government intend that they will remain free for all in future? Perhaps I can ask him quite what he meant by that, because in the briefings that I have had people have emphasised that it is the Government’s intention to extend the charges to accident and emergency services and GP services.

[Lord O’Shaughnessy]

We are talking about the regulations that we are implementing, and they do not introduce that. That is the point I was making.

[Lord Hunt of Kings Heath]

Noble Lords will interpret that response in the way they wish to. That is a bit disappointing.

The Minister has promised a review. I very much welcome that. He said it would be a full, formal review; let us hope it will also be an independent one. Asylum Matters has reminded me, in the most efficient way that that organisation works, that of course in 2016, a review was promised. I hope this time, we will actually get such a formal review.

Having said that, this has been an important debate. A lot of people are looking with great interest at what your Lordships have discussed tonight. We knew we were not going to be able to stop these regulations but I hope we have expressed those legitimate concerns. I am grateful to noble Lords for taking part and beg leave to withdraw the Motion.