On 16 November 2020, the House of Lords is due to debate the draft Reciprocal and Cross-Border Healthcare (Amendment etc) (EU Exit) Regulations 2020. This statutory instrument is subject to the draft affirmative procedure. This means it must be approved by both Houses of Parliament before it can come into force.

Reciprocal and cross-border healthcare in the EU

The EU reciprocal healthcare system covers EU member states, non-EU countries within the European Economic Area (Norway, Iceland and Liechtenstein) and Switzerland. It enables people covered by the state healthcare system in one of these countries to access healthcare when they live, study, work or travel abroad in another of these countries. This includes:

  • State pensioners using S1 forms when they retire to another country.
  • Visitors and students using European Health Insurance Cards (EHICs) to access emergency and needs-arising healthcare while on holiday or on a study visit to another country.
  • Workers who have been sent to another country temporarily by their employer (posted workers) or who live in one country and work in another (frontier workers) using S1 forms or an EHIC.
  • Planned treatment using S2 forms, where residents are funded to receive treatment in another country.

The legal framework for EU reciprocal healthcare arrangements is set out in wider social security coordination regulations. Payments for reciprocal healthcare under these arrangements are normally made state-to-state.

A separate EU directive makes provision for cross-border healthcare. The UK Government and the devolved administrations transposed it into domestic law in 2013. The directive sets out the conditions under which a patient may travel to another EEA member state to receive medical care and be reimbursed by their home healthcare system. The patient pays the cost of treatment upfront and can reclaim eligible costs from their home healthcare system. This may be capped at the cost of state-provided treatment in the patient’s home healthcare system. The Government has said this route “provides a broader discretion for relevant UK authorities to pre-authorise treatments which may not be available in the UK”.

Under the terms of the withdrawal agreement, these arrangements continue to apply to the UK until the end of the transition period on 31 December 2020.

Preparing for no deal: the 2019 regulations

In 2019, the Government made three statutory instruments (SIs) that prepared for what would happen to reciprocal and cross-border healthcare arrangements if no ‘divorce’ deal was agreed with the EU. These regulations are:

  • Social Security Coordination (Reciprocal Healthcare) (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/776)
  • National Health Service (Cross-Border Healthcare and Miscellaneous Amendments) (EU Exit) Regulations 2019 (SI 2019/777)
  • Health Services (Cross-Border Healthcare Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (SI 2019/784)

The Government has summarised the effect of these SIs:

They revoked the EU reciprocal healthcare legislation and social security coordination regulations, as well as the domestic legislation implementing the cross-border healthcare directive in relation to England, Wales and Northern Ireland. As the arrangements are inherently reciprocal, it would not be possible to operate them without reciprocity from the member states.

Originally, all three SIs were due to come into force on the day the UK left the EU. However, the terms of the European Union (Withdrawal Agreement) Act 2020 mean that they are now due to come into force at the end of the transition period on 31 December 2020.

Effect of the withdrawal agreement

The Government made the 2019 regulations in case there was no agreement with the EU about continuing reciprocal healthcare arrangements after Brexit. However, the withdrawal agreement agreed in October 2019 and ratified in January 2020 (and separate agreements with the other EEA member states and Switzerland) did make some provisions relating to this. Firstly, the existing arrangements continue until the end of the transition period on 31 December 2020. Secondly, some people will retain rights after the end of the transition period:

  • UK nationals living and working in the EU/EFTA on 31 December 2020 will continue to be entitled to member-state funded healthcare under the member state’s domestic rules and a member state-issued EHIC.
  • S1 holders resident in the EU/EFTA on 31 December 2020 will continue to be entitled to UK-funded healthcare, including a UK-issued EHIC.
  • EU/EFTA nationals resident in the UK on 31 December 2020 will continue to be entitled to access the NHS and a UK-issued EHIC.
  • UK and EU nationals who are in a ‘cross-border situation’ over 31 December 2020 (for example, they are part-way through a holiday) can continue to use the EHIC to access ‘needs-arising’ treatment until they leave that country by travelling to another EU member state or returning to the UK.
  • People visiting the UK or the EU for planned medical treatment under the S2 route can commence or complete their treatment if authorisation was requested on or before 31 December 2020.
  • If a UK national has paid social security contributions in a member state in the past but is not living in the EU on 31 December 2020, the rights that flow from those contributions (eg benefits, pensions, reciprocal healthcare rights) will be protected. This means someone who has previously worked in an EU/EFTA member state can apply for a UK S1 (as well as EHIC/S2) once they reach state pension age on the same terms as now.

Cross-border healthcare under the cross-border healthcare directive was not included in the withdrawal agreement.

What would the draft regulations do?

The terms of the withdrawal agreement supersede the three SIs made in 2019. The draft regulations would therefore make amendments to the existing 2019 SIs to reflect the withdrawal agreement. They would:

  • Revoke transitional and savings provisions in the 2019 SIs that are now redundant because the withdrawal agreement means EU law continues to apply to the UK during the transition period.
  • Amend the two 2019 SIs that relate to cross-border healthcare. The 2019 SIs would protect residents of England, Wales or Northern Ireland who had obtained authorisation for planned treatment before exit day, but had not started, completed or been reimbursed for their treatment before exit day. The amendment would update this so the protection would apply to people who had obtained authorisation before the end of the transition period, but had not started, completed or been reimbursed before the end of the transition period.
  • Amend out-of-date references in NHS legislation to EU forms, entitlements under EU treaties and concepts such as “EU rights”.

Parliamentary scrutiny of the draft regulations

The Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments have both considered the regulations. Neither committee drew them to the attention of the House.

The House of Commons debated the regulations in a delegated legislation committee on 4 November 2020. Speaking for Labour, Liz Kendall, Shadow Minister for Health and Social Care, said it was good that the groups covered by the withdrawal agreement would continue to benefit from reciprocal healthcare arrangements. But she said the regulations did “not go anywhere near far enough” in protecting rights to healthcare for British citizens travelling to the EU from 2021 onwards. She expressed concerns that UK citizens living in an EU member state would not be entitled to free NHS care when visiting the UK unless a bilateral agreement was reached with that member state. She suggested that people with pre-existing health conditions might find it impossible to get travel insurance to cover trips to the EU. She also highlighted that there would be costs to the NHS, in terms of time and red tape, in recovering the costs of treating EU visitors to the UK.

Jo Churchill, Parliamentary Under-Secretary of State for Health and Social Care, said that the majority of the issues Ms Kendall raised were the subject of ongoing negotiations being led by the Foreign, Commonwealth and Development Office. Future healthcare agreements with EU/EFTA member states could be implemented under the Healthcare (European Economic Area and Switzerland) Act 2019.

The House of Commons formally approved the draft regulations on 9 November 2020.

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