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Healthcare (International Arrangements) (EU Exit) Regulations 2023

Volume 831: debated on Wednesday 5 July 2023

Considered in Grand Committee

Moved by

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

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.

My Lords, I congratulate my noble friend on bringing forward what I view as very welcome regulations for us this afternoon. I have to declare an interest, as I currently have an EHIC, which I assume will expire at the end of this year, and visit a very small number of the countries on this list. Given that the list on page 5 in the Schedule seems very full, I take this opportunity for my noble friend to put my mind at rest, because originally—it was a year ago, 2022—it was pointed out that the GHIC, which my noble friend explained will replace the EHIC in the regulations, originally did not cover countries such as Norway, Iceland or Liechtenstein, but they appear on the list. Is that because the original primary legislation did not cover them, or were we just waiting for the regulations before us this afternoon? Can he confirm that the EHIC covers those three countries and that the GHIC will also cover them?

From a practical point of view, I have never yet had to make a claim. I once, rather unfortunately, contracted salmonella poisoning as a Conservative candidate at a hotel which will remain nameless in north London, which rather sorrowfully served chicken drumsticks but did not have the foresight to defrost them. Unwittingly, I was so hungry I ate the chicken drumsticks, and within 36 hours I was in a very sorry way, but not as bad as some of my older colleagues at the time, who had to be hospitalised because of salmonella poisoning. I was then fortunate enough to be injected, not in my arm but in another part of my anatomy by a French doctor and had to have a course of whatever tablets they were.

Are we under these arrangements required to pay similar costs to those in that scenario up front, keep receipts and claim them back when we are back in the UK? Is that how it works? I think most of us are covered, and I know the department and the Foreign Office encourage all of us who travel outside the UK to have the fullest possible medical insurance that we can. Is it reciprocal? Does, say, a Norwegian, a Dane, a Liechtensteiner or someone from whatever third country pay here and is then reimbursed by their medical authorities—just to be absolutely clear on the reciprocity of the situation?

I give the regulations before us this afternoon a very warm welcome.

As I understood it, the Schedule on page 5 covers overseas territories and dependent territories. I note that the Cayman Islands is not listed. I have not had time to check whether anywhere else is off the list, but I wondered whether my noble friend could find out and let me know. I ought to declare an interest: one member of my family is working in the Cayman Islands, and there may be others. I recently attended a conference of all the overseas territories and dependent territories, and there seemed to be rather more than appear here, but that may be me and my memory bank. I leave that question with my noble friend.

My Lords, I also welcome this statutory instrument, which seems to be a helpful tidying-up exercise overall. Of course, it is humane and to our credit that we seek the maximum number of reciprocal arrangements so that people in the UK travelling to other countries can get healthcare when they need it and people coming here can benefit from our health service. That is important as a humane response.

First, on the comments from the noble Baroness, Lady McIntosh, I have a GHIC card; I think I was one of the first out of the traps in 2021. My understanding—the Minister will confirm this later—is that the “G” is rather more aspirational than material; that the GHIC is really an EHIC because it does not count in any other places, such as Australia or New Zealand; and that it is really a version of the EHIC rebranded with a rather fetching union jack. I am interested to hear from the Minister whether I have understood that correctly. Of course, it seems to be the Government’s aspiration that, one day, the “G” in your GHIC will be meaningful but as I say, as I understand it today, it is an “E” rather than a “G”.

We are pleased that there was consultation with Ministers in Northern Ireland, Wales and Scotland. Again, a regular theme of the stuff that we debate in this House is that there have been a number of other instances where that has not happened, such as with the minimum service levels Bill. It is good to see that, here, Ministers have given their approval.

I want to ask a few questions. The first is a material one on the scope of UK-insured persons; that is some of the language used in the instrument. My understanding is that there is a difference. For example, as long as they are a UK-registered resident, somebody who is resident and a taxpayer in the United Kingdom—whatever passport they hold—can get a GHIC card and use it in the European Union but they would not be able to do so in Switzerland because it has a narrower category of people who qualify; people there would, I think, need a UK passport to take advantage of the relationship.

That opens up a wider question: what is the Government’s policy? Is it that anyone who is a UK resident and taxpayer here should benefit from the reciprocal arrangements, or are the Government content to leave it such that we limit the scope in some countries? I followed the links to look at the information provided to people on GOV.UK. Oh my God; I am not sure whether I regret going there because it is incredibly complex. If noble Lords look at it, they will see that some countries want a driving licence, some want a passport—some want a UK passport while others want any passport—some want proof of residence and some want the magic card. There is a huge plethora of proofs of identity and qualification. Again, people’s expectations would be that, if they live in the UK and pay their taxes here, they should be able to benefit from the reciprocal arrangement. However, that is not what we see at the moment.

Regulation 6 says that the NHS Business Services Authority has a duty to

“maintain a service making available to the public information”.

Something useful could be done on the BSA working with GOV.UK to give people a much easier way to say, “I am going to country X: do I qualify? If I do, what documents do I need? At the moment, there is a long list that is incredibly confusing”. This is just a thought for the Minister as to whether Regulation 6 would include asking the Business Services Authority to improve the quality of the information offered at present.

My second substantive point concerns Regulation 7, which says that the

“BSA must assist the Secretary of State with the Secretary of State’s exercise of functions”.

Another critical piece of information here is understanding what is happening through this arrangement. What are the costs in and out? How many people from another country are using the NHS? How many people from the United Kingdom are using services in another country? Can the Minister clarify whether, as well as information about the workings of the reciprocal arrangement being provided to the Secretary of State, he anticipates such information being provided to the public and to us as parliamentarians? I do not mean to penny-pinch—as I say, the starting point should be that it is humane to offer treatment at both ends—but it is a matter of information.

The Minister referred to how additional countries might be added to the list. We would all welcome that but, again, when that happens, there will have to be a business case that must make predictions about how much usage of the scheme there will be. I welcome the fact that the Minister says that the addition of another country will come back to us for approval, but I hope that he can also commit to us being given the information we need on existing arrangements and predicted future arrangements to help us make those determinations.

Clarifications on those substantive points about eligibility and the provision of information and data on how the arrangements are working would be really helpful but, substantively, we welcome the instrument.

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.

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.

Sitting suspended for a Division in the House.

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?

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—

Sitting suspended for a Division in the House.

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.

We know that the arrangements in each country are confusing, and one of my takeaways from this is that we probably need to do more work on our side to make it more user-friendly. However, each country has slightly different flavours of rules, for want of a better term. I understand that Switzerland, to take that as an example, wants to make sure that someone also pays national insurance contributions in the country they come from—the UK in this case—which is why it wants a proof of residency as part of that as well. Informally, it has said that it will accept a GHIC, but that is just informal. The situation with Switzerland is that it is checking whether those national insurance contributions are made.

We are trying to negotiate the wrinkles out of all these things, for want of a better word, but this shows that we need a country-by-country guide. I remember that we had something like that during Covid, with red countries and different rules for each country. I know that exists already but I will make an action to look at that with regard to clarity.

That is exactly the idea on some of the exceptional circumstances, because the picture is so confused. The numbers are handfuls—seven, eight, nine, 10, 15. They are published each year. I will give you a flavour of an exceptional circumstance in which, naturally, the Government paid: some mental health care was needed in the Netherlands, and it was thought that was covered, but in fact it comes under social services there, so that instance was not covered by the GHIC.

On the impact assessment and the analysis, we report things only above £35 million in one year or £50 million over three years, as the noble Lord might be aware. Clearly, in these circumstances, we are happy to make that information available. The detail is also covered in our annual reports. We will make sure that negotiations with new countries are also set out and covered.

I appreciate the comments of the noble Baroness, Lady Wheeler, about our assuaging those concerns— I hope—that this is not a back-door mechanism to negotiate things such as privatisation. I hope that the safeguards are in place. Please correct me if I am not correct, but I think that the team has done a good job on having extensive dialogue with noble Lords in this area. We are happy to do that at any point. I will obviously write in detail on all these points, but the team is always open if things such as round tables would be helpful in the future.

I hope that I have managed to cover the points there. Again, we will follow it up with a detailed letter as well. If that does the business—and before any more bells ring—I will commend the regulations to the Committee.

Motion agreed.