Introduction
In October 2017 the UK Government introduced its strictest regulations yet for reclaiming charges from overseas visitors making use of the National Health Service. Anecdotes about overseas visitors flying to the UK specifically to give birth for free, or to get expensive HIV treatment at UK taxpayers’ expense had been regularly appearing in the media and by the time of the 2015 general election were part of the political debate. A Nigerian woman who gave birth to quintuplets in London in 2011 was still making headlines in 2015 as an egregious example of health tourism and inadequate cost recovery.Footnote 1 The NHS Overseas Visitors Charging Regulations 2015, followed by even tougher 2017 revisions, are the Government's efforts to address these perceived abuses.Footnote 2 These new regulations have a dual purpose: to recover costs more effectively for the NHS and to stop ‘health tourism’, the alleged practice of citizens from other countries coming to the UK specifically to make use of the free health service. (This should be distinguished from the practice of travelling abroad for private care.Footnote 3) Under the Regulations, unless persons are ‘ordinarily resident’ or fall within one of a range of exceptions then they are liable to be charged for hospital care (excluding care in A&E),Footnote 4 and charges apply to secondary care delivered outside of the hospital setting.Footnote 5
A recent example of the controversy surrounding these regulations arose concerning the ‘Windrush generation’ migrants from Commonwealth countries who arrived in the UK before 1971. In 2018 The Guardian reported on the case of Mr Albert Thompson, who moved to the UK from Jamaica 44 years ago. Despite decades of work and paying UK taxes, his lack of a British passport or other qualifying residence criteria meant that the Royal Marsden hospital in London asked him to pay £54,000 for radiotherapy for prostate cancer, money which he did not have: ‘It's like I'm being left to die’.Footnote 6 Initially the Government refused to intervene but as the case gained publicity, sympathy and momentum, further examples came to light.Footnote 7 It was argued that the charging regulations would particularly hit those children of the Windrush generation who had never obtained British passports or naturalisationFootnote 8 and that an estimated 57,000 people were potentially at risk.Footnote 9 The embarrassing disclosure that the UK Border Agency had destroyed the original landing cards of migrants which might have proved their residency forced the Prime Minister to apologise and take urgent action to regularise the position of these citizens. This was followed by the resignation of the Home Secretary, Amber Rudd.Footnote 10 Mr Thompson was rapidly granted indefinite leave to remain in the UK and his cancer treatment was able to go ahead without charge. While the fallout from the debacle forced the Government to address the particular needs of the Windrush generation, this case highlights the challenges in proving ‘ordinary residency’ for others who do not have a publicity campaign on their side.Footnote 11
At face value, it seems reasonable for the UK to charge non-residents for non-urgent medical care, reserving expensive resources for its own residents, something which has been the policy of most countries over a period of many years.Footnote 12 Yet there has long been a troubled relationship between the charging regulations and the ethos of the NHS, a system predicated on the principle that healthcare should be free at the point of use.Footnote 13 This is a sentiment which echoes through the decades. For some critics, the regulations threaten to undermine equality and human rights.Footnote 14 The progressive restriction of free healthcare to a country's own residents seems to run contrary to the expressed aim of universal health coverage (UHC). From a right to healthcare approach it could be argued that a basic package of healthcare services should be provided free of charge for overseas visitors. The right to health is included in the 1948 Universal Declaration of Human Rights and UHC is a long-term objective of the World Health Organization (WHO):
UHC means that all individuals and communities receive the health services they need without suffering financial hardship. It includes the full spectrum of essential, quality health services, from health promotion to prevention, treatment, rehabilitation, and palliative care.Footnote 15
There is also a binding right to health contained the International Covenant on Economic Social and Cultural Rights.Footnote 16 Rights to health are also recognised in Article 12 of the Convention on the Elimination of All Forms of Discrimination against WomenFootnote 17 and Article 24 of the Convention on the Rights of the Child.Footnote 18 Nonetheless, while a general right to health may be seen as an aspiration, translating this into specific rights to access health services in individual states is problematic in practice. The precise nature of access to health care services can be seen as something which is a matter of resource allocation, left to individual member states themselves to determine. For example, in the context of the jurisprudence of the European Convention on Human Rights, while a right to access emergency health care is in line with the approach taken by the European Court of Human Rights, there is no general right to demand access to specific health care services for nationals or for overseas visitors.Footnote 19 While the UK is a signatory to the Council of Europe's European Convention on Social and Medical Assistance, which provides that parties undertake to safeguard rights to medical assistance as their own nationals to nationals of other Treaty parties ‘who are lawfully present in their territory and who are without sufficient resources’, as we shall see below the issue will depend on whether they are ‘ordinarily resident’ or fall within one of the other exemptions under the Regulations.Footnote 20 Moreover while NHS treatment is free at the point of delivery (with the exception of certain charges, for example for prescriptions in EnglandFootnote 21) neither UK residents nor foreign visitors can demand the provision of specific treatments as this is ultimately subject to clinical discretion.Footnote 22
The extent to which, and procedure by which, overseas visitors should be charged for healthcare has never been simply an assessment of cost-benefit, ie analysis of administrative cost against potential income. It needs to be seen in its political context. The impact upon the financial situation of the NHS is multifactorial, including the pressures of an aging population, increasingly sophisticated (and expensive) medical treatments and (some would argue) chronic underfunding.Footnote 23 However, over many years – as we shall see below – politicians have claimed that the cost of overseas visitors using free NHS services has had a significant adverse impact, resulting in fewer resources for the NHS despite a dearth of detailed empirical evidence to that effect. The other major political issue is that of the link between NHS overseas visitor charging regulations and immigration controls.Footnote 24
Charging patients directly is alien to many, particularly NHS staff who are often uncomfortable with the change in dynamics and their role in this process.Footnote 25 The enforcement of charges for healthcare can be seen as contrary to the founding principles of the NHS, namely that they should meet the needs of everyone, that they should be free at the point of delivery and based on clinical need and not the ability to pay.Footnote 26 They can be viewed as a distortion of the NHS as a public service providing healthcare to patients in need, and of the principles of solidarity which underpin it.Footnote 27 There remains also a difficult relationship between the aims of the Home Office concerning immigration policy and charging patients for treatment. Notably, recently stricter overseas charging regulations can be seen as very uncomfortably intertwined with the Conservative-Liberal coalition and subsequent Conservative Governments’ efforts to create a ‘hostile environment’ for potential migrants to the UK.Footnote 28
This paper focuses upon the position in English law. The situation in the other devolved jurisdictions is different and goes beyond the scope of this present paper.Footnote 29 The charging system is rooted in primary legislation in the form of the National Health Service Act 2006,Footnote 30 secondary legislation – the NHS Overseas Visitors Charging RegulationsFootnote 31 – and related Guidance.Footnote 32 Section 1 of this paper examines the backdrop to the current NHS Overseas Charging Regulations from Bevan and the early days of the NHS to the Conservative Government of David Cameron of 2015–17, with a detailed examination of the parliamentary debates and policy issues which arose as charging regimes were considered, introduced and implemented. It demonstrates that fundamental themes of access to health care which is free at the point of delivery, citizenship, discrimination and cost have been repeated time and time again over the decades. Section 2 of the paper examines the wide-ranging changes to the regulations introduced in 2015 and 2017 under the Cameron Government and further implemented under the Government of Theresa May. It critically explores their rationale, how this can be seen as integrally linked to NHS budgetary constraints and to the recent Home Office hostile environment agenda and the fallout from the implementation, leading to calls for abolition. The final section of the paper discusses the lessons to be learnt and issues which remain to be resolved.
1. Charging overseas visitors for treatment: back to the future
In this section we explore the charging of overseas visitors for treatment from the late 1940s until the present. We chart how the emerging themes prove enduring and equally problematic across the successive decades.
(a) From 1948–1979: from free healthcare for all to charging overseas visitors
A fundamental principle of the National Health Service since its founding in 1948 is that healthcare should be free at the point of delivery. The ‘father of the NHS’, Aneurin Bevan, memorably stated that:
No country can legitimately call itself civilised if a sick person is denied medical aid because of a lack of means.Footnote 33
An NHS publication in 1949 provided that:
The National Health Service will provide you with all medical, dental and nursing care. Everyone, including all visitors to this country, whether of British nationality or not, can use it or any complete part of it. There are no charges except for a few special items, and no insurance qualifications are necessary.Footnote 34
During Parliamentary debate in April 1949 on the National Health Service Leaflet (No 2) and foreign visitors,Footnote 35 this apparent extravagance drew criticism from Conservative MP, Sir Waldron Smithers:
The Minister of Health cares so little for the taxpayers of this country and for the contributors to this scheme that he offers free health services to anyone who likes to come to these shores…Footnote 36
The then Parliamentary Secretary to the Minister of Health (Mr Blenkinsop) responded by stating that:
He asked… about the number of foreigners who have been treated. We cannot give him those figures because we do not – and do not intend to – discriminate between … one section of the people who are here in our land and another. If we were to discriminate – to try to get the sort of statistics the hon. Member wishes – it would inevitably mean that we should have to require the completion of some difficult forms; that we should have to require people of all nationalities inside this country to submit themselves to an examination about their nationality, and all kinds of provisions… Certainly, the Government have no intention of introducing any regulations of that kind, which… would in all probability cost a great deal more than the cost of the minor provisions now being made.Footnote 37
Mr Blenkinsop assessed the cost of treating foreign visitors at around £200,000 per year and said that:
for the very small expenditure which may be involved, we are doing good service to our friends throughout the world.Footnote 38
In the early years of the NHS, save for a few individual MPs, the Labour and Conservative parliamentary parties were in agreement that the ideal situation was one of reciprocal healthcare access with other countries. It was argued that overseas visitors should be encouraged as they contributed to the British economy and Labour Ministers argued that free NHS care could be part of the attraction.Footnote 39 Nevertheless, the Government subsequently agreedFootnote 40 to include an opposition amendmentFootnote 41 which gave the power to make regulations to charge non-resident patients for services.Footnote 42 This provision remained moribund. This was questioned in Parliament in 1957 as part of a debate on the rising costs of running the NHS.Footnote 43
The Parliamentary Secretary to the Ministry of Health, JK Vaughan-Morgan, while recognising the resentment caused by those benefiting from the NHS without contributing to it, stated that the powers under the 1949 Act had not been used for administrative reasons relating to the problems of defining ‘non residence’ which could result in extended controls at ports. Moreover, he stated that:
if we exclude non-residents from entitlement to the Health Service we impose upon doctors, dentists and hospitals the responsibility of discovering whether a patient is entitled to receive such treatment. Either the patient must produce something such as an identity card, or a very unwelcome burden is placed upon the practitioner to decide.Footnote 44
He gave Parliament an ‘outside estimate’ of the cost of non-residents using the NHS as around £150,000 a year, the great majority being visitors from Canada and Australia (to put this in perspective, the total NHS budget for 1950 was £460 million).Footnote 45 While reciprocal arrangements were to be preferred, it was noted that only slow progress had been made on this. Not until 1963 was NHS guidance introduced for the charging procedure to be followed.Footnote 46 This stated that temporary visitors should be regarded as private patients, except in the case of emergency treatment or treatment arising for an accident or illness contracted in the UK, which would be free.
In 1977 the legal regulation of the NHS was consolidated in the NHS Act passed that year. Section 121 of the Act confirmed the power of the Government to make regulations to charge non-resident patients.Footnote 47 In the House of Lords, Lord Wells-Pestell, speaking for the Labour Government, explained:
It was simply thought desirable for the Secretary of State to be able, if he chose, to charge a higher rate to individuals, particularly wealthy foreign patients, who might come to this country for highly specialised treatment requiring expensive equipment and skills because such treatment costs less here than in other countries in the world.Footnote 48
As before, it was stated that there were no reliable figures as to the number of foreign visitors to the UK and ‘there was no intention at that time to enact regulations’.Footnote 49 It was also stressed that this provision would not apply to citizens of EEC countries with which the UK had reciprocal agreements.
(b) The Conservative Government of Margaret Thatcher: the first NHS overseas visitors charging regulations
For some Government members it was initially a source of pride that the UK could offer foreign visitors a level of healthcare which they might not get in their own countries. However, as decades passed, the numbers of visitors increased, as did the financial stress on the NHS generally, and critically, the political environment also changed. By the early 1980s the arguments on each side were established and they remained largely along the same party lines for two decades. For proponents of ever tighter regulation (principally the Conservatives), overseas visitor charges were necessary to provide more money for the NHS and to stop health tourism. They also brought the UK into line with most other countries in the world in terms of charging visitors who are patients. Opposing this view (principally the Labour and Liberal position) was the argument that there was insufficient data to justify the charges, and what information there was, suggested that this was a minor issue which did not justify the administrative burden on NHS staff of implementing these regulations. Furthermore, the process of identifying chargeable patients, it was argued, would lead to discrimination and hurt those in society who may be particularly vulnerable such as failed asylum seekers, children and pregnant women.Footnote 50 Both sides claimed to have public and NHS support.
A working party was established in July 1981 by the Conservative Government to look at overseas visitors’ use of the NHS and its report led to the National Health Service (Charges to Overseas Visitors) Regulations 1982, applicable to England and Wales, with comparable regulations for Scotland introduced shortly after.Footnote 51 The working party report surveyed 8,152 patients and found that only 22 patients were potentially chargeable (before taking into account patients with communicable diseases who would be exempt from charging). The report also found, on the basis of a study of four hospitals, that:
the checks made on patients to establish overseas visitors were infrequent and irregular, the registration of patients was largely carried out by clerical officers, many of whom were not aware of any restrictions on NHS treatment of overseas visitors… and that patients were often questioned about eligibility only if they had given a foreign place of birth or address or were of foreign appearance.Footnote 52
Despite this evidence of the limited utility of the charging process, the charging regulations were taken forward. The Conservative MP Sir William van Straubenzee, had no doubt that the Government had the public behind it:
Few matters arouse more passionate hostility and anger among perfectly decent people who do not have an ounce of prejudice in their veins than the feeling of misuse of the NHS, as they believe, with the occasional actual example, by those who come from abroad.Footnote 53
When introducing the reforms in Parliament the Secretary of State for Health and Social Services, Norman Fowler argued that the measure would:
raise extra income for the National Health Service… which lifts the burden from the British taxpayer and avoids the possibility of racial discrimination in the present hospital admission procedures…Footnote 54
He added that ‘… the provision merely rectifies an anomaly that leaves us out of line with almost every country in the free world’.Footnote 55 The question of whether this would in fact reduce racial discrimination was raised during the debates.Footnote 56 The regulations came into force two months before a landmark House of Lords case in 1982, R v Barnet London Borough Council, ex p Nilish Shah, which established the meaning of ‘ordinary residence’ as the requirement of entitlement to public services, including the NHS.Footnote 57
In the debates on the charging regulations, questions were raised about the absence of effective data demonstrating the need for such regulations. The Conservative Government estimate in 1982 of recoverable costs of £6 million (to put this in context the total health budget for 1982–83 was £10 billion)Footnote 58 was disputed by the Labour opposition, who argued that the regulations were unjustifiable:
to winkle out a minuscule number of foreign tourists, a fraction of whom might be abusing the NHS… the administrative costs of the Government's scheme would most certainly exceed the net savings in preventing abuse.Footnote 59
Kenneth Clarke, Minister of State for Health, downplayed the administrative cost:
The only increase in cost would be for hospitals with a large number of overseas visitors – such as some of the London hospitals – where additional costs might be involved. We are talking about perhaps half a staff post. The £6 million that we hope to gain vastly outweighs any administrative costs.Footnote 60
As the 1982 regulations came into force, the Labour MP Alf Dubs asked a series of questions:
how many overseas visitors had been charged, what the income had been for each regional health authority… extra staff appointed to administer the new procedures… whether the new procedures had been introduced in all hospitals, from which countries the overseas visitors came who had been charged.Footnote 61
But this was rejected and in Parliament when discussing the criticisms made of the scheme Kenneth Clarke stated that
The answer to his inquiry is, first, that we are not collecting centrally the information he wants and, secondly, that it is far too early in the lifetime of the scheme to check any sensible statistics because the information is not readily to hand'.
He went onto say:
I have no intention of organising a massive statistical collecting operation, which would merely impose a high administrative cost.Footnote 62
There was a notable tightening of policy later in the 1980s when the Health and Medicines Act 1988 introduced powers enabling the Secretary of State to charge for healthcare at commercial rates.Footnote 63 This was followed by the enactment of new charging regulations in 1989 across the UK.Footnote 64 There are now different charging regulations operational across the devolved jurisdictions.Footnote 65 The focus of this paper is upon the regulations which operate in England. The revised primary consolidating legislation for the NHS in force today is the National Health Service Act 2006. As with its predecessor, the National Health Service Act 1977, section 175 of the 2006 Act allows the Secretary of State for Health to make regulations for the making and recovery of charges from any person who is not ordinarily resident in Great Britain.
(c) Labour Governments of Tony Blair and Gordon Brown (1997–2010)
While the Labour Party had previously been seen as opposed to extending charges to overseas visitors, the mid-2000s saw a shift in approach by the Blair and the Brown Governments. Charging was introduced for maternity care of women not ordinarily resident and this included such persons as refused asylum seekers, trafficked women, and undocumented migrants.Footnote 66 Long before the era of an explicit Government policy of hostile environment, the development of NHS overseas visitor charging regulations often proceeded in tandem with immigration controls.Footnote 67 For example, the 1963 Ministry of Health guidance came one year after the first Commonwealth Immigration Act 1962 and the 1982 NHS (Overseas Visitors) Charging Regulations followed the 1981 Nationality Act. By the mid-2000s there were links in media coverage between migration and health tourism. As Baroness Howells commented in a 2004 House of Lords debate on the case for introducing tighter regulations for charging overseas visitors using the NHS:
The press have mounted a sustained attack on immigration, with campaigns against ‘benefit tourists’ and asylum seekers… we as decision-makers have to be very careful not to breathe oxygen into the fire of intolerance, however good our intentions. The brunt of this hysteria will be borne not only by visitors coming into this country, but also by ethnic minorities who live here legally and those currently seeking asylum.Footnote 68
The link between the restriction of healthcare for overseas visitors and immigration controls became explicit by 2007 when the Home Office produced a strategy document ‘Enforcing the Rules: A strategy to ensure and enforce compliance with immigration laws’Footnote 69 including a planned ‘review of access rules for NHS care for foreign nationals to simplify the process of applying controls’.Footnote 70 In March 2007 the Department of Health (DoH) ‘agreed to a joint review with the Home Office of the rules governing NHS access for foreign nationals’.Footnote 71 (It is of note that the term ‘foreign nationals’ is used here rather than the much broader term ‘overseas visitors’. This terminology is important since, as we explore in this paper, it is not nationality but residence which is the basis for access for NHS services.) The DoH and the Home Office proposed the sharing of information on overseas visitors who had unpaid NHS bills so that they could be refused any future UK visa until the debt was settled. A 2009 impact assessment prepared by the newly-created UK Border Agency, said there were ‘outstanding debts of over £5m owed by non-resident patients to a small sample of hospitals’, and that ‘there is a relatively small number of non-resident patients who appear determined to access NHS services and are not paying charges they owe’.Footnote 72
It was estimated that the cost of implementation of this data sharing was £2.76 million, allowing for a potential net benefit of just over £6 million. The Border Agency stated that ‘one of the main aims is deterrence’ and as repeat offenders were stopped, both the implementation costs and the sums recovered would fall.Footnote 73 Also in 2009 there were reports of care being refused for failed asylum seekers,Footnote 74 which led ultimately to a judicial challenge which confirmed that care could be refused to such patients.Footnote 75
Apart from this data sharing, the finding of the joint ‘review of access’ was that ‘the current policy remains substantially sound’ but the review proposed some further protections for ‘vulnerable groups’.Footnote 76 In February 2010 the Government began a consultation both on these proposed changes, and on other ideas to improve overseas visitors charging. Strongly promoted was the idea of a health insurance requirement for visitors on the grounds that this could simplify the process and facilitate access to NHS resources.Footnote 77 The Government proposed to undertake a comprehensive comparative study to ascertain the approach taken in countries requiring migrants and visitors to have health insurance.Footnote 78 Other suggestions included the introduction of a health insurance fee for temporary migrants and students.
(d) 2010–2020: from Conservative/Liberal coalition 2010 to Cameron and May Conservative Governments
The new Conservative-Liberal Coalition Government, with Andrew Lansley as Secretary of State for Health, published a response to the Labour Government's consultation in March 2011. This document stated that the previous review:
failed to address fundamental issues in the current charging regime. Current rules and practices around charging non-residents are complex and difficult to apply.Footnote 79
The Government indicated that it intended to carry out a further review which would include looking at qualifying residency criteria, exemptions, how to establish more effective and efficient processes, and whether to introduce a requirement for health insurance tied to visas. There was no mention of the previously proposed comprehensive comparative study of systems in other countries. In the meantime, consolidated Overseas Visitors Charging Regulations were introduced for England in 2011.Footnote 80 These incorporated the 1989 Regulations, subsequent amendments and further exemptions for certain failed asylum seekers, children in the care of a local authority, and participants in the 2012 Olympic and Paralympic Games – the enhanced exemptions which had been proposed by the previous Labour Government.
While there had been amendments to the charging regulations over time, a new and more rigorous policy was pursued following Jeremy Hunt taking office as Secretary of State for Health in September 2012. The notable and rapid change in emphasis on reclaiming costs became linked to concerns of the NHS ‘deficit’.Footnote 81 This can in turn be seen as Government concern regarding costs of services in an era of austerity.Footnote 82 There have been numerous attempts to estimate the cost of treatment of overseas visitors to the NHS. In 1949 the estimate had been £200,000 per year, by 1957 the calculation had gone down to £150,000. In 1982, recoverable costs were estimated at £6 million. This grew to £367 million in 2012/13 and the target for 2017/18 was £500 million. (The DHSC budget for that year was £130 billion).Footnote 83 However, while substantial sums have been cited, every one of these estimates has been prefaced with an admission that it was based on incomplete and doubtful data. In 2015, Meirion Thomas, a former consultant at the Royal Marsden Hospital and vocal campaigner, claimed that the annual loss to the NHS stood at £3 billion ‘based on anecdotal reports he received after going public with his concerns’.Footnote 84 Nonetheless it was these fiscal concerns which lay directly behind the response of tightening the regulations for charging overseas visitors and to the reforms of 2015 and 2017 which are explored in the next section.
2. The current regulations in England: application and controversy
The National Health Service (Charges to Overseas Visitors) Regulations 2015, as amended in 2017, are the current regulations in force in England.Footnote 85 They replaced the 2011 Regulations and are the latest and toughest application of the rules for overseas visitors using the NHS. In this section we consider the scope of the regulations, their implementation and the ongoing controversy which surrounds them. The regulations can be seen as leading to tensions with the fundamental principle of the NHS that treatment should be free at the point of use.Footnote 86
(a) The test of ‘ordinary residence’
The regulations apply to ‘overseas visitors’, who are defined under the regulations as ‘a person not ordinarily resident in the United Kingdom’.Footnote 87 These may be tourists, students, temporary workers, former UK residents who are now living overseas, short-term migrants who are staying in the UK for less than six months, and people living in the UK illegally. The test for ‘ordinary residence’ was established in the 1982 House of Lords case of Shah Footnote 88 and confirmed in subsequent cases.Footnote 89 Government guidance states that:
Ordinary residence is established if there is a regular habitual mode of life in a particular place ‘for the time being’, ‘whether of short or long duration’, the continuity of which has persisted apart from temporary or occasional absences. The only provisos are that the residence must be voluntary and adopted ‘for a settled purpose’… Ordinary residence is proven more by evidence of matters capable of objective proof than by evidence as to state of mind.Footnote 90
In terms of what constitutes proof, DoH guidance advises that:
3.5 A person is not ordinarily resident in the UK simply because they have British nationality; hold a British passport; are registered with a GP in the UK; have an NHS number; own property in the UK; or have paid (or are currently paying) National Insurance contributions and taxes in the UK.Footnote 91
For people from outside the EEA the residence test is even tougher. Section 39 of the Immigration Act 2014 changed the meaning of ‘ordinary residence’ for non-EEA nationals, who also need to have indefinite leave to remain in the UK in order to receive free secondary NHS healthcare:
3.10. It is important to note that since 6 April 2015, non-EEA nationals who are subject to immigration control must have indefinite leave to remain (ILR) in the UK in order to be ordinarily resident in the UK.Footnote 92
The regulations impose an obligation to charge for secondary healthcareFootnote 93
having made such enquiries as it is satisfied are reasonable in all the circumstances, including in relation to the state of health of that overseas visitor, determines that the case is not one in which these Regulations provide for no charge to be made.Footnote 94
The regulations as amended in 2017 also now provide that:
-
(1A) Where the condition specified in paragraph (2) is met, before providing a relevant service in respect of an overseas visitor, a relevant body must secure payment for the estimated amount of charges to be made under paragraph (1) for that relevant service unless doing so would prevent or delay the provision of:
(a) an immediately necessary service; or
(b) an urgent service.Footnote 95
Thus, the charges must be paid upfront unless clinical discretion is used to enable treatment without upfront charge.Footnote 96 Critically in such a situation, even if the person is treated they will still remain liable to subsequently pay for the cost of the treatment. It is unclear to what extent this exception is currently being used in practice and the exercise of clinical discretion may be all that is between an individual getting into thousands of pounds of debt or forgoing treatment. The level of cost may also prove a major shock to potential patients, given that the 2015 Regulations also provided for the introduction of commercial charging. This means that medical treatment for non-residents is charged at 150% of the standard NHS tariff.Footnote 97 In itself this is symbolically important. This is not simply reimbursing costs: this is also healthcare charging explicitly as a means of income generation. This is nothing new in the NHS in general but it is striking to see the use of commercial tariffs being charged directly to patients.Footnote 98
Uncertainties remain regarding the precise impact of the regulations. In the past the question of proving ordinary residence was rarely an issue. Although the regulations and their predecessors are predicated upon the assumption that potential patients need to prove their entitlement to care, this was not something which was routinely pursued in detail. The guidance for the regulations now emphasises that evidence should be sought regarding entitlement to care.Footnote 99 The prospect of this was criticised from the outset and it was suggested it could have the potential to cause chaos.Footnote 100 Pilots introduced to tighten up the screening procedures to verify ordinary residence have proved particularly controversial. In 2016 a pilot scheme in 18 NHS trusts required patients to bring to appointments two forms of identification proving their permanent residency in the UK. The scheme was run by NHS Improvement working with the DoH and also, notably, the Home Office, and a spokesman said that the hospitals chosen were those:
with the biggest funding gap attributed to overseas visitors and migrants in an attempt to meet the Government's target of recovering up to £500 m a year in this way.Footnote 101
NHS Improvement offered intensive support to 50 acute trusts which it had identified with the biggest potential for recovering such income. The cost of implementing the pilot scheme and providing ‘intensive support’ is unclear, as its overall effectiveness.
In a letter of 5 September 2017, Jeremy Hunt stated that Ipsos Mori would formally evaluate the pilots and that these findings would be used in analysis of any proposals later that year.Footnote 102 This formal evaluation has never been published, although the Evening Standard on 29 May 2018 reported that the pilot schemes had found ‘only a tiny number’ of patients to be ineligible for free care and that out of 8,894 people in London Hospitals asked for two forms of ID before treatment only 50 (1/180) were charged for treatment.Footnote 103 What is striking is that these figures are consistent with those of the 1982/3 study discussed above and that 27 years on there did not appear to a radical change in demand. At St George's Hospital in Tooting – claimed to be a particular target of ‘health tourists’ – some 1660 maternity patients were screened over five months with 18 persons found liable to pay, and who were charged £45,000 in total.Footnote 104 Two participating Trusts had either shelved plans to extend checks or ended them completely.Footnote 105 The DoH was reported to be ‘considering the findings of the evaluation before deciding on next steps’.Footnote 106
Other problematic aspects of the implementation of the revised regulations have come to light. Allegations have been made of discriminatory practice in the implementation process, with claims that individuals have been targeted due to having non-traditional English surnames.Footnote 107 In addition, proving ordinary residence can be very difficult for some individuals, particularly those who may be elderly or not in a settled situation, such as the homeless and others who may never have obtained a British passport. People who are in a care home and immobile may not have utility bills (although these alone will not be sufficient to prove ordinary residence) or a driving licence – documents which are required under the pilot scheme.Footnote 108 It may also be difficult for those whose work takes them between countries on a regular basis. Rather than undertaking a detailed investigation of each patient, requiring the provision of documentation, an alternative option could be the use of an electronic plastic card with a bar code identifier. Showing such a card before providing treatment is an approach adopted in certain other European countries, eg the carte vitale in France.Footnote 109 Nonetheless in a country which has only required the presentation of identity cards during the First and Second World Wars, although there was provision for use of identity cards (though not compulsorily required) from 2006–2010,Footnote 110 it is likely that a specific health identity card may meet resistance.
(b) Other persons exempt from charges under the Regulations
In addition to those ‘ordinarily resident’ a number of other groups of persons are exempt from charges. As we saw in Section 1 above, the 2010 reform proposals had raised the prospect of a ‘health insurance’ for temporary migrants and students. This now takes the form of the immigration health chargeFootnote 111 (referred to by the Home Office as the ‘health surcharge’),Footnote 112 which is payable at the time of making their visa application by temporary migrants and students from outside the EEA who come to the UK for six months or more.Footnote 113 This payment exempts them from charges for NHS treatment during the period of their visa. This can effectively be seen as a ‘health insurance’ paid in advance. Also exempt during the current period of transition following the UK's exit from the EU on 31 January 2020 are visitors with rights to healthcare under EU law,Footnote 114 or from other states which have reciprocal healthcare agreements with the UK. This includes those who receive treatment under the European Health Insurance Card (EHIC) card, what is known as the ‘S1’ or’ S2’ scheme under EU Regulation 883/2004, or under the Patients’ Rights Directive. EHIC provides limited free healthcare to citizens from EEA countries, the cost being subsequently reimbursed by their home country. The S1 form is for people who live in one EEA country and have their healthcare costs covered by another EEA country up to the limits as stated in the country in which they are resident, so for example some EU citizens resident in this country. The S2 form is for those people who choose to have their healthcare in a different EEA country to the one where they live.Footnote 115 The Patients’ Rights Directive provides EU citizens with the right to travel to another EU country to receive medical care and reimbursement. The right is not unlimited. In some situations, such as those requiring hospital care, prior authorisation from the member state may be required and treatment can be refused in certain circumstances, such as risk to public health.Footnote 116 Under the Withdrawal Agreement the costs of the treatment of those who are currently being treated at the end of transition will be covered by home member states.Footnote 117
Post transition EEA residents who are lawfully in the UK under the settled status scheme and who are ordinarily resident will also be exempt from charging for treatment. The Home Office is operating the settled status scheme which has the effect of implementing the relevant provisions of the EU Withdrawal Agreement and granting immigration status to EU citizens. The scheme applies to those EU citizens who are resident in the UK at the end of the transition period; they must apply for settled status by 30 June 2021. If an EU citizen has five years’ continuous residence they have a right to reside permanently in the UK under Article 15 of the Withdrawal Agreement and may apply for settled status. If they have not been resident for five years but are resident at the end of the transition period then they are deemed to have ‘pre-settled status’ and are able to reside for a further five years from the date on which pre-settled status is given.
Considerable uncertainties remain as to the position of those EEA citizens who are not covered by the Withdrawal Agreement.Footnote 118 For those coming to the UK from another EEA member state for a period of time, perhaps to study or work, the Government may decide that (as with non-EU citizens at present) they may be subject to the Immigration Health surcharge (discussed below). In the case of EEA visitors who are in the UK on a more temporary basis, they will almost certainly be subject to the charging regulations. Charges under the Overseas Visitors Regulations also do not apply if the individual is covered by a reciprocal healthcare agreement between their country and the UK.Footnote 119 It may of course be possible for negotiations to enable continued recognition of reciprocal health rights for future new residents. The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 would enable the implementation of such agreements but at the time of writing the position is extremely fluid.
The regulations also exclude from charge refugees, asylum seekers, failed asylum seekers who are destitute or likely to become destitute without support, and their dependants.Footnote 120 Prisoners and immigration detainees are also excluded,Footnote 121 as are children who are looked after by a local authority. The regulations also exclude victims and suspected victims of human traffickingFootnote 122 or where the Secretary of State for Health determines there to be exceptional humanitarian reasons to provide a free course of treatment.Footnote 123
While the charging regulations provide exemptions for patients who undergo compulsory treatment for mental illness under court order,Footnote 124 or those deprived of their liberty under the Mental Health Act 1983 or the Mental Capacity Act 2005Footnote 125 curiously there is no provision for other patients with mental disability within the terms of the Mental Capacity Act 2005. It remains entirely unclear why, for example, there is no provision for patients who lack decision making capacity due, for example, to advanced dementia. Such failure to effectively engage with this group of people is a fundamental flaw in the legislation, short sighted and frankly perplexing.Footnote 126 We would argue that those lacking mental capacity should today be included in the group who are automatically recognised as exempt from charges. A third exempt category is UK government employees, members of the regular and reserved armed forces,Footnote 127 NATO employeesFootnote 128 and war pensioners.Footnote 129 There are also exemptions for family members of persons who are exempt under the other provisions under the regulations.Footnote 130
(c) Specific types of healthcare services excluded from charging
Some healthcare services are also excluded from charge.Footnote 131 This has always been the case for emergency treatment, although only if it is provided at an A&E department, walk-in centre, minor injuries unit or urgent care centre.Footnote 132 However, following emergency treatment after leaving A&E care then care becomes chargeable. Services provided outside hospital such as by GPs are excluded from the charging arrangements.Footnote 133 This was not extended under the 2017 review although it remains possible such services may be chargeable in future (see discussion below). Controversially the revision to the 2015 regulations in 2017 also extended charges to non-NHS providers of NHS-funded care and to secondary care delivered outside of the hospital setting.Footnote 134 It remains unclear how this change has operated in practice.
Some services are also exempt on public health grounds. For example, no charge will be made to overseas visitors for the diagnosis and treatment of a large number of specified infectious diseases, which includes TB, pandemic flu, HIV/AIDSFootnote 135 and in 2020 the Coronavirus (COVID-19).Footnote 136 However, on 21 July 2017 the Chair of the Health Committee, Sarah Wollaston MP, wrote to the Secretary of State for Health, Jeremy Hunt, about an NHS Trust instructing patients at its Infectious Diseases Department to bring identification proving permanent residence to their appointments, failing which they might be charged for treatment.Footnote 137 The Trust in question was one of those taking part in the pilot scheme of the 2015 Charging Regulations. As a result of Dr Wollaston's letter, the pilot in the Infectious Diseases Unit was cancelled as ‘there was too great a risk of confusing patients’,Footnote 138 although it appears that it was in fact the implementing staff who were confused and unaware that infectious diseases were exempt from overseas charging. Diagnosis and treatment of sexually transmitted infections and services that are provided as part of the NHS111 telephone advice line are also exempt.Footnote 139 Other forms of care are exempted on humanitarian grounds, namely palliative care, treatment required for a physical or mental condition caused by: torture, female genital mutilation, domestic violence, or sexual violence as long as the person has not travelled to the UK for the purpose of seeking that treatment.Footnote 140
Family planning services (but not termination of pregnancy services) are exempt from charging.Footnote 141 ‘Immediately necessary or urgent care, including maternity care’ is exempt from charging.Footnote 142 Any maternity services consequent upon female genital mutilationFootnote 143 or sexual violence are also exempt from charge.Footnote 144 However, as we saw earlier, other aspects of pregnancy care – including childbirth itself – are chargeable. The Department of Health and Social Care guidance on the regulations notes that:
Due to the severe health risks associated with conditions such as eclampsia and pre-eclampsia, and in order to protect the lives of both mother and unborn baby, all maternity services must be treated as being immediately necessary. Maternity services include all antenatal, intrapartum and postnatal services provided to a pregnant person, a person who has recently given birth or a baby. No one must ever be denied, or have delayed, maternity services due to charging issues.Footnote 145
This guidance does not mean that women will be exempted from charge. Thus, while women are to be informed that care will not be withheld on the basis of their ability to pay, they will still be liable for the cost of non-exempt services. It has been persuasively argued that including this within the category of charging can be seen as sex discrimination, as to deprive women of care during pregnancy can be seen as a barrier to good health.Footnote 146
Visitors from outside the EEA who do not fall into the category of exempt services or individuals and cannot meet the residency requirement are to be charged directly for secondary care in advance of treatment. The 2017 revisions to the Charging Regulations further tightened the rules by requiring upfront charging for non-exempt patients, unless doing so would prevent or delay the provision of immediately necessary or urgent services. There was an attempt to bring judicial review to challenge the revised legislation in 2017 on the basis of failure to undertake adequate consultation but this was not successful.Footnote 147
(d) Implementation and impact of the reforms to the Charging Regulations in 2015 and 2017
The implementation of the charging regulations raises several issues regarding the provision of NHS care. First, concerns have been raised about the administrative burden on NHS staff, and also that the regulations have been poorly understood and implemented. In England the 2017 amendments to the 2015 Charging Regulations placed obligations upon NHS senior managers to ensure compliance with systems to support charging covering ‘all staff inpatient administration including A&E, outpatient clinics and wards’.Footnote 148 NHS service providers are to appoint an Overseas Visitors Manager (OVM) to oversee implementation of the charging regulations.Footnote 149 All staff are expected to understand their obligations under the regulations. Meirion Thomas has argued that trusts are at fault for failing to appoint sufficient OVMs to implement the regulations.Footnote 150 In 2017 Ipsos Mori found a lack of senior level buy-in, ie support and awareness. While many staff groups felt that the principle of charging overseas visitors and migrants was fair ‘there was also evidence that a significant minority of frontline clinicians are resistant to those principles, and levels of support may be declining over time amongst a number of staff groups’.Footnote 151 Although awareness of charging had increased, ‘one in five Trust Chairs and board members were unaware that some patients could be charged’.Footnote 152
Secondly, it has been suggested that the charging obligations can effectively result in hospital administrative or clinical staff becoming a ‘border guard’Footnote 153 or a ‘debt collector’.Footnote 154 The obligation to ascertain chargeable status is placed on A&E staff to direct ‘baseline questions’ to patients when they are booked in.Footnote 155 Obligations are also placed upon finance staff, including ensuring that charges can be implemented rapidly and if needed at very short notice. There is a requirement to record against a person's NHS ‘consistent identifier’ the fact that they are considered an overseas visitor, the date on which this was decided and whether they are exempt from charges.Footnote 156 A consistent identifier is a patient's unique NHS number which confirms a person's identity and allows for all data sharing associated with or facilitating care for that individual. This enables easier tracking of individuals’ status within the NHS. The computerised recording of such information makes it easier to transfer such information. This in turn given rise to concerns regarding the privacy and confidentiality of patient information, something which has been a fundamental principle of health care provision since the days of the Hippocratic Oath, and which today is safeguarded through the law concerning breach of confidence and also provisions of data protection law,Footnote 157 and the legitimacy of the use of such information by other agencies. Concerns were expressed when reports in September 2019 revealed that NHS Trusts had been passing information to the credit reference agency Experian to ascertain whether a person has a ‘credit footprint’ in the UK and thus whether they are resident and consequently able to obtain free treatment.Footnote 158
Thirdly, and particularly controversial, is the major responsibility placed on doctors themselves to decide clinical need for treatment, and whether it is considered emergency care (and therefore exempt from charging). This inevitably impacts on the role of the doctor and the commitment to healthcare free at the point of delivery pledged by Bevan at the founding of the NHS. There is concern that the very implementation of the regulations might effectively change the nature of the therapeutic relationship. Doctors are imbued in their training and professional ethics with the ethical principles of beneficence and non-maleficence – ‘do no harm’.Footnote 159 Yet here doctors are asked to make a decision which has a notable fiscal dimension, knowing that if they do not exercise clinical discretion this could deprive patients of much needed treatment in a situation where if ordinarily resident they would have immediately gone ahead with treatment. While doctors can effectively override administrators by saying treatment should go ahead even if patients do not pay upfront, in practice this may not be easy to do. Moreover, in this situation, while patients may be treated, they will still be subsequently liable for the costs of that treatment. Clinicians today are engaged in rationing decisions but these do not normally have such immediacy. Generally, a decision whether to fund a treatment on financial grounds will be subject to oversight through a local Clinical Commissioning Group or in the case of treatments not generally available in the NHS via NHS England through its individual funding request procedures.Footnote 160 The situation for overseas visitors is very different. Furthermore there is the question of the immediate impact on patient health and possible impact on the cost of future treatment. If a doctor misjudges the need of a particular patient for treatment and it is withheld this could lead to the death of the patient or to a more serious medical condition requiring emergency care in A&E which may be far more extensive than the original treatment which has been denied. Finally, where obligations are placed on doctors to undertake assessments or other administration as part of the charging process this would inevitably detract from the time available to treat other patients.
(e) Charging overseas visitors and primary care
There has been a discussion going back to the mid-2000s as to whether primary care should be included in the charging arrangements.Footnote 161 While the Regulations currently do not extend to primary care there are signs of an incremental impact on primary care practice as the DoH has suggested that OVMs should consider establishing formal contacts with GPs to help with the process of identifying chargeable patients.Footnote 162 In 2019, guidance on the charging system issued to Primary Care providers and headed ‘How you can help get money back into the NHS’ indicates that primary care providers should encourage patients to provide information as to their exempt status and where available upload applicable documentation.Footnote 163 Patients are also to be made aware of the prospect of being charged for secondary care. In 2019 there were reports that some NHS hospitals had asked some London GP practice managers to assist in the identification of patients who were entitled to free NHS treatment.Footnote 164
(f) The Regulations and the ‘hostile environment’
Further aspects of the regulations can be seen as linked to the Conservative-Liberal Government and post 2015 Conservative efforts to create a ‘hostile environment’ for potential migrants to the UK.Footnote 165 A 2017 Freedom of Information request found that under the pilot scheme, one trust alone – St George's University Hospitals NHS Foundation Trust – had reported 153 patients to the Home Office ‘to follow up possible immigration sanctions’.Footnote 166 While it may be valid to chase debt recovery, there are considerable concerns that undocumented migrants would be deterred from seeking medical treatment. So for example, a study by Maternity Action supported by the Royal College of Midwives reported adverse effect on pregnancy care due to the charging regulations, with women not coming forward sufficiently early in their pregnancy, not attending for tests or in some situations avoiding care entirely because they were concerned by the prospect of Home Office action.Footnote 167
This is not only in relation to an individual's own treatment; it has also been argued that there is evidence that undocumented migrants are not seeking treatment for their children, due to concerns of the prospect of charging and of Home Office action, or not taking children for vaccinations with consequent public health problems that this may present.Footnote 168 These factors mean that many doctors are resistant to their role in implementing the regulations.Footnote 169 The legitimacy of data-sharing regarding immigration status with the Home Office was unsuccessfully challenged by the BMA through judicial review in 2015.Footnote 170 In 2017 there were reports that GP practices had been asked to inform patients of the identification requirement when referring them, but according to GP Online:
practices in some areas were registering undocumented migrants as ‘no fixed abode’ to prevent the Home Office using GP data to check on patients’ immigration status.Footnote 171
The controversy this generated and the intervention of the Chair of the Health Select Committee led to the Government agreeing to remove data-sharing arrangements between the NHS and the Home Office for identification of illegal migrants.Footnote 172 However, it has subsequently been reported that the Home Office immigration officers have been contracted to work within public service organisations to facilitate checks on immigration status, and reports indicate that this service has been offered to NHS trusts.Footnote 173 This remains a matter of grave concern and also raises the prospect, as noted above, of patients deferring treatment until their condition deteriorates such that they are treated as an emergency in a situation where they may have a much worse prognosis of recovery and potentially greater treatment cost than if they had simply received routine secondary care. There have been strong calls from some, such as the campaigning organisation ‘Docs Not Cops’, for the 2015 and 2017 Regulations themselves to be totally repealed.Footnote 174
(g) The effectiveness of the Regulations in cost recovery
A key motivation for the new regulations was, of course, that of recovery of costs. But how effective has it been? As we saw above, historically the introduction of charging regulations was based on inadequate evidence.Footnote 175 Have the 2015–17 changes really made a difference? The Government's ‘Visitor & Migrant NHS Cost Recovery Programme Implementation Programme 2014–16’ stated in 2014 that it would be introducing the collection of key metrics: (a) invoiced income; (b) actual cash recovered: (c) bad debt provision: (d) written-off debt; and that ‘for the first time, the NHS will be able to measure how well it is recovering the amounts that it is owed’.Footnote 176 Yet when in 2016 the National Audit Office (NAO) made an effort to estimate figures they noted the incompleteness and unreliability of available data,Footnote 177 including with regard to the sums chargeable.Footnote 178
The NAO's calculation for potential recovery was based on DoH figures from 2013. For 2012–13 the NAO estimated potential chargeable income of £367 million, representing 0.3% of the total NHS budget. Of this sum, £73 million was recovered. For 2013–14 and 2014–15, £97 million was recovered each year, followed in 2015–16 by a dramatic jump to £289 million recovered. This included £164 million from the new health surcharge, introduced in the 2015 Charging Regulations. Another contributory factor was the ability to charge non-EEA visitors 150% of the NHS national tariff from 2015. Although the NAO estimated that the target of £500 million for 2017/18 was unlikely to be met, they advised that £346 million was likely to be recovered for that year – a considerable increase on the 2012/13 figure of £73 million – and there has been an upward trend in recent years. However, this is largely due to income from the health surcharge. The absence of conclusive data means it is unclear whether the target of £500 million cost recovery for 2017/18 was either realistic or achievable. The estimates of potential income carried heavy caveats from the NAO about the limited and uncertain data on indicators such as numbers of patients and charges applicable. An Ipsos Mori report of January 2017 also found it impossible to make a comprehensive cost-benefit analysis due to unavailable data.
Moreover it cannot be assumed the health of migrants is necessarily the same as that of the home population.Footnote 179 Research shows that migrants are in fact less likely to use health services and they tend to be younger, fitter and not likely to suffer from chronic conditions or to require expensive surgery.Footnote 180 The health profile for tourists may differ again, with elderly travellers more prone to strokes or heart attacks for example, than young migrant workers. It is also likely that not all parts of England will be receiving the same proportions of overseas visitors.Footnote 181 The NAO noted ‘a significant variation in the amounts charged and a relatively small number of trusts are responsible for a large proportion of the charges’.Footnote 182 This variation may have many causes, including poor implementation of the regulations. However, a disparity in overseas visitor numbers across trusts is likely to be a factor. More would be expected to travel to large cities, particularly London, whether as tourists, students or temporary migrant workers. In a report of February 2017, the Government announced a programme targeting support for a specific group of trusts which due to factors such as size, location and overall expenditure were likely to have the greatest chance of recovering costs.Footnote 183
Some high-profile pregnancy cases alleged to be cases of health tourism appear also to be cases in which individuals had complex emergency health needs where, according to the DoH's own guidance,Footnote 184 it might have been unlawful under the Human Rights Act 1998 not to provide care.Footnote 185 In these reported cases the patients denied that they had come to the UK specifically to exploit the NHS, and they were subsequently billed for their treatment. Although these debts were enforceable under the legislation it is unclear whether enforcement would have been cost effective, as these individuals then subsequently left the UK.
It remains to be seen to what extent the operation of the revised regulations will be sustainable. However, it does seem likely that with increased scrutiny more patients will fail to meet the residency criteria. In the US, it was estimated that nearly half of all bankruptcies were due to an inability to pay medical fees.Footnote 186 It is possible that non-eligible overseas visitors in the UK may be forced to a similar strategy of declaring bankruptcy in order to be relieved of healthcare costs. There are also concerns regarding the impact of the extension of charging regulations outside the hospital setting, with community services having to check migration status.Footnote 187 Meirion Thomas has claimed that ‘maternity, renal dialysis, cancer and HIV are the services most commonly targeted by overseas visitors’.Footnote 188 If so, the latest charging regulations are unlikely to greatly impact on these alleged abuses. As an infectious disease, HIV care remains free to overseas visitors, although Government guidance is that this should be limited if possible: ‘to an amount that will last until the overseas visitor returns home or has arranged for [antiretroviral drugs] to be sent to them’.Footnote 189
During the Cameron Government the DoH indicated that there was an intention to eventually extend charges to services such as primary care, GP care, A&E and ambulance services.Footnote 190 However, a 2017 consultation on possible changes was met with considerable opposition due to practical challenges and concerns that persons with infectious diseases could be deterred from receiving treatment.Footnote 191 Such an extension could have further adverse impact on the care of persons with irregular immigration status, children and those in need of maternity care.Footnote 192 Similarly, there was opposition to charging at emergency care settings such as A&E, with a fear that it would lead to problems of delay in treatment. It remains to be seen whether this will be taken forward in the future.
As we have seen, the implementation of the 2015 Regulations and their 2017 amendment has not only proved controversial but, as with every previous iteration of the charging regulations, their efficacy remains unproven. Is it possible to reconcile concerns of cost with respect for the principle of non-maleficence – ‘do no harm’? We return to these issues in the final section of this paper.
Conclusions
Arguments about whether and to what extent overseas visitors should be charged for use of NHS services have raged for decades. Repeated attempts to improve the process have often resulted in greater complexity and administrative burdens, although there has been some success in increasing costs recovery. Initially the regulations were regarded as a provision for infrequent cases, as the use of the NHS by overseas visitors was not seen as a major problem. The events of the last decade have led to a heightened attempt to implement charging in an era of austerity and of the hostile environment. Yet the justification for the practical efficacy of this policy remains unproven. Quite simply, is the gain worth the cost of consequent harms? The lack of accurate data has been a long-term impediment to developing appropriate, evidence-based policy in this area.
In 2019 the Academy of Medical Royal Colleges called for a suspension of charges until the Government's review of the scheme was published.Footnote 193 But despite calls also by the Health and Social Care Committee for its publication, the details of the full review are still not in the public domain.Footnote 194 A summary report suggested that there was no evidence that individuals had been deterred from treatment or that there had been an impact on public health.Footnote 195 Subsequently in 2019 a Department of Health spokesperson stated that there had not been an intention to publish a formal review document on the impact of the regulations.Footnote 196 This is not a satisfactory response. The changes of the last few years have been introduced at a rapid pace without proper opportunity for comprehensive evaluation. It is clear that this area needs to be revisited by the Government. At the very least the Government should provide very clear information as to the precise impact of the charging regulations and not attempt to extend this further without a demonstrably clear evidence base.
Furthermore, as we have seen, the implementation of the latest Charging Regulations has far deeper implications than that of simply the reimbursement of costs to the NHS. Leaving the charging of overseas visitors as something to be implemented by individual NHS trusts affects the dynamics and role of NHS staff, as well as putting pressure upon those on the front line. The relationship with the Home Office and recently the question of the hostile environment has proved fundamentally problematic in developing law and policy in this area. It was said by Michael Meacher MP during the debates on the charging regulations in 1982:
The Government should not expect NHS staff to do their dirty work in cracking down on immigration – that is what it is about – or in reducing eligibility for NHS treatment.Footnote 197
Yet we do not seem to have learned from the past. As events over the last few years have demonstrated, not least the Windrush cases highlighted above, the operation of the charging process has had a serious adverse impact upon clinician–patient relationships, and unless reformed is likely to increase the prospect of patients being deterred from seeking care now and in the future.Footnote 198 The campaigning organisation ‘Docs Not Cops’ is now calling for the Government to commission a full and independent inquiry into the impact of NHS charging on individual and public health, and provide compensation to the families and communities already impacted.Footnote 199 Such an inquiry may indeed provide an important opportunity for a comprehensive reconsideration of the area – though, as with any inquiry, the issues are unlikely to be rapidly resolved.
When Sir Waldron Smithers spoke in 1949 of the need to charge overseas visitors for NHS care, it is unlikely that he could have imagined the complexity, practical difficulties and political quagmire that such a proposal would still be creating for policy makers 70 years later. Not simply knee-jerk responses to financial constraints, but also a worrying interface between health care delivery, migration and identity in an era of the hostile environment has inevitably adversely impacted on patients and prospective patients’ relationship with the NHS. What is clear is that urgent action is needed at national Government level to reconsider the nature and scope of the regulations, to stop the covenant of trust between patient and clinician and the fundamental principles of the NHS from being further eroded.
