Eligibility for NHS secondary care

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QuotationMarkLeft.png Crucially, it is clinicians who should make decisions about the urgency of their patients' treatment, not hospital administrators. Care must be provided when needed and doctors must not be encouraged to abandon patients. Failed asylum seekers are an extremely vulnerable group of individuals; many of them are destitute and homeless. Their care must be determined on the basis of clinical need alone. QuotationMarkRight.pngLancet Editorial.[1]

Prior to 2012 this was relatively straightforward for those who are clearly eligible by having an NHS number and being resident in the UK, at least in terms of who is eligible (although what they are eligible for is more complicated).

In 2012, however, Home Office rules changed the eligibility of EEA nationals in England.

For those who do not clearly meet residence etc. criteria, e.g. asylum seekers (especially those who's asylum claim has been turned out) this is much less clear, and a recent (early 2009) court of appeal decision has not made things any clearer.[1]

Certain infectious diseases are exempt from treatment charges, to prevent infection of others in the community.

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The situation for [[1]] nationals resident in the England is less clear - see Eligibility for NHS hospital treatment for EEA nationals resident in England for more detail.

Those entitled to NHS care can access for free such NHS secondary care as has been commissioned for the population of the locality they are resident in. For some secondary care services that locality is the whole of England, for most it is the clinical commissioning group their GP practice is a member of. The issue is slightly more complicated if resident in Wales or Scotland and accessing services in England, but this is invisible to the patient. If not resident in the EU matters are more complicated. Many overseas patients will have paid a health care charge with their visa. See NHS England Migrant Health Guide and Guidance on implementing the overseas visitor hospital charging regulations 2015. This all changed with the The National Health Service (Charges to Overseas Visitors) Regulations 2015, before the situation was similar in fine detail to the 1989 regulations for Scotland and Wales.

The following services in the NHS are currently free of charge irrespective of country of normal residence (as long as the overseas visitor hasn’t travelled to the UK for the purpose of seeking that treatment):

  • Emergency treatment at any Accident & Emergency (A&E) department, walk in centre or elsewhere (but not further emergency treatment away from these locations eg operations, or subsequent outpatient appointments)
  • Diagnosis and treatment of infections of public health concern, including sexually transmitted infections
  • Family planning services (does not include the termination of pregnancy or infertility treatment)
  • Treatment of a physical or mental condition caused by: torture, female genital mutilation, domestic violence, sexual violence
  • Primary care services, unless the staff providing the services are employed by, or working under the direction of, an NHS hospital

The following are exempt from charge:

  • Refugees (officially recognised)
  • Asylum seekers
  • Children looked after by a local authority
  • Victims, and suspected victims of modern slavery or human trafficking, as determined by the UK Human Trafficking Centre or the Home Office, plus their spouse or civil partner, and any children under 18 provided they are lawfully present in the UK
  • Those receiving compulsory treatment under a court order, or who are detained in an NHS hospital or deprived of their liberty (for example, under the Mental Health Act 1983 or the Mental Capacity Act 2005) who are exempt from charge for all treatment provided, in accordance with the court order, or for the duration of their detention
  • Prisoners and immigration detainees

See Chapter 4 of the guidance for an exhaustive list and more details.

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The services so provided shall be free of charge, except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed. It is for NHS healthcare providers to decide when an overseas visitor needs healthcare or services in an NHS hospital and if charges should be applied in compliance with Regulation 2(1) of the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989. The regulations include exemptions from charges for certain categories of patient and services.

There is a guide at "Overseas Visitors to Scotland"


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The National Health Service (Charges to Overseas Visitors) Regulations 1989 place a legal obligation on Health Boards and Trusts in Wales to establish if people who they are providing NHS hospital services for, are not ordinarily resident in the UK. If they are not, then charges may be applicable for the NHS services provided.

There is a guide at "Overseas Visitors to Wales"


Contents

Eligibility for NHS hospital treatment for EEA nationals resident in England

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This section applies to England only

The eligiblity criteria are described in Department of Health documents.

Ordinary residence

"Guidance on implementing the overseas visitor hospital charging regulations 2015: Ways in which people can be lawfully resident in the UK"[2] states:

"Entitlement to free NHS hospital treatment is principally based on Ordinary Residence (OR) in the UK. …
"A person may be considered ordinarily resident in the UK, and therefore outside the scope of the Charging Regulations, if he or she is living lawfully here (and the other requirements of the ordinary residence test are met)."
"[apart from non-EEA nationals] individuals do not need to be permanent or indefinite residents in order to be ordinarily resident here. Lawful, properly settled residence here for the time being is sufficient."

It goes on to clarify "ordinary residence" in chapter 3: It says:[3]

"Determining ordinary residence
"3.10 Whether a person is ordinarily resident in the UK is essentially a three-fold test (four-fold for non-EEA nationals) assessing whether that individual:
"(i) is lawfully in the UK;
"(ii) is here voluntarily – it will be rare for a person not to be in the UK voluntarily; and
"(iii) is properly settled here for the time being; and
"(iv) in the case of non-EEA nationals subject to immigration control, has ILR in the UK.
"Being lawfully in the UK
"3.11 British citizens have automatic right of abode in the UK, so are always here lawfully. EEA nationals are almost always here lawfully. It is important to note that a person does not need to meet the ‘right to reside test’ for certain benefits, for example, in order to be considered ordinarily resident in the UK. Non-EEA nationals usually need permission to be in the UK, except in some circumstances when they are not subject to immigration control, e.g. due to their relationship to an EEA national who is resident here, or when a diplomat."

So how do EEA nationals establish that they have lawful, settled residence in England? The main "guidance…" document referred to above simply states that "EEA nationals are almost always here lawfully".

Note that there is no requirement to have been in the UK for a minimum period of time before you become "ordinarily resident". A person who moves to the UK to take up a job, to look after a relative, when they marry, to study, or for any other reason, will be "ordinarily resident" as long as they expect to stay for the time being - Department of Health used to suggest, if they were going to stay for at least three months.

A more detailed guidance document says, however, that they:[4]

"have an extended ‘right to reside’ beyond that period [three months] if they are ‘exercising a Treaty right’ as:
"i) a worker (see below about Croatian nationals),
"ii) a self-employed person,
"iii) a student,
"iv) a self-sufficient person, or
"v) a job seeker, but only up to 91 days…"

It is a little unclear, but it also seems that once an EEA national has acquired "permanent residence" rights, they no longer need to meet the above criteria. See Right of permanent residence below for more details.

A "self-sufficient" person is one who is a student, self-employed, or "economically inactive". It presumably includes pensioners, and probably (it's not clear) people who do not work full time.

It goes on:

"There are certain requirements that students and self-sufficient persons (i.e. economically inactive people) need to fulfil in order to be exercising the Treaty right. See ‘Sufficient Resources’ and ‘Comprehensive Sickness Insurance’, below."

So what does the Comprehensive Sickness Insurance section say? - <I>

"An EEA national who is residing in the UK as a student or self-sufficient person must also have “comprehensive sickness insurance” (CSI)…
"A person would be considered as having CSI if:
"i) he or she has a comprehensive private health insurance policy, or "
"ii) he or she is validly entitled, in accordance with Regulation 883/2004 EC on the coordination of social security systems, to access NHS healthcare (as in such cases the UK is able to be reimbursed for the cost of that care by the home Member State)."

So… If you are an EU national from a country where your home state will agree to pay for any necessary treatment, you're covered under ii) above. (Italy may be an example.) Many countries, including Germany and France, however, have some form of state insurance cover; so if you come from one of those countries and you haven't kept up your insurance cover in those countries, it would appear you are not covered by ii), in which case you require CSI.

The document continues…

"Remember that exercising Treaty rights or having a permanent right to reside are not necessary for an EEA national to meet the OR (ordinary residence) test and thereby be entitled to free NHS treatment. However, they are relevant in relation to whether their non-EEA family members can then be in the UK lawfully and consequently whether they can themselves meet the OR test."

So it seems to be saying, clearly, to EEA citizens who have lived in this country that:

IF you don't have a guarantee that your home country will pay for treatment,
AND at any point you have been a self sufficient person (a student or not working full time),
AND at any point while being a self sufficient person you have not had comprehensive sickness insurance
OR at any point have been on benefits (without first acquiring "permanent resident" status)
THEN you are NOT in the UK lawfully, and
THEREFORE you are not eligible for NHS treatment.

Note that these rules were brought in in 2012; but, from first hand reports on eg the Facebook Forum for EU Citizens ("The 3 Million") it seems clear that the Home Office is applying them retrospectively, as though they have always applied.

This will not only affect a huge number of EEA nationals resident in the UK (including a large proportion of the NHS workforce - roughly 10% of doctors, and likely similar proportions of other NHS staff are EEA nationals); but it will also affect a lot of patients.

Hospitals are increasingly looking to economise by finding pretexts for refusing admissions,[5] and it is probably only a matter of time before EEA nationals are told they can't have hospital treatment unless they can prove that they have never been "self sufficient" without comprehensive sickness insurance.

Right of permanent residence

"Once an EEA/Swiss3 national has been resident for a continuous period of five years in accordance with the EEA Regulations (i.e. he or she has been exercising Treaty rights), they acquire a right of permanent residence which can be lost through an absence from the UK of more than two consecutive years."[6]

It is a little unclear, but it also seems that once an EEA national has "established their treaty rights" by living "lawfully" in the UK for five years - and having not been out of the country for more than two consecutive years they acquire a right of "permanent residence" (PR), sometimes referred to as PR status. (A "permanent resident" card is not necessary to have this status; but - since the EU referendum in 2016 it has become a prerequisite for naturalisation - becoming a British Citizen. The process for acquiring such a card is complex, particularly if the period of 5 years of lawful resident was not the most recent five years - e.g. in somebody who as been "self-sufficient" within the previous five years; and, for the purposes of the PR card, you may not have left the country for more than 6 months in any 12 month period since you acquired the right.)

It seems (though this is less clear) that EU citizens who have established their treaty rights by living in the UK "lawfully" for a minimum of five years and without having been out of the UK for more than 6 months in any 12 month period since have "permanent resident" status, they can be treated like UK citizens: they are entitled to draw benefits, and are no longer required to have comprehensive sickness insurance.

Requirement for hospitals to check entitlement

In order to distract people from the underfunding of health and social care services, the government has made a big deal of "health tourism". This plays into their "blame everything on foreigners" rhetoric - the rhetoric which drove Brexit (which will be a disaster for the NHS and social care). In fact, the proportion of the NHS spend which goes on treating people who should pay is insignificant compared to its overall budget; and it will cost more to check entitlement than could possibly be recouped. But the systems put in place for this might well come in useful for charging all patients in the future.

Nonetheless, in 2017 it was announced that hospitals were to be obliged, from 1 April, to check patient's ID to ensure they are entitled to receive NHS hospital care.[7]

Checking every patient's ID will be very laborious. There are, however, a number of straightforward ways in which hospitals can minimise costs. For example:

  • Since patients who have been seen in the hospital previously are likely to have been in the UK long enough to meet the ordinary residence criteria, they could be assumed to qualify with no further checks.
  • If a patient has been referred by their GP, they are likely to be ordinarily resident - especially if e.g. the medication section of the referral mentions treatment provided by the NHS for some time.
  • If a patient is not referred by their GP (eg if they attend AED or a walk in centre), and has not been a patient in the hospital previously, it should be possible to check their details on the personal demographics service (PDS). If the patient is on the PDS, then they can be assumed to be ordinarily resident, especially if it shows they have been resident in the UK for some time.

Of course, patients who have moved abroad and then returned as visitors (i.e. who are not "ordinarily resident" and therefore not eligible to NHS hospital treatment) may not be detected by such methods - but then, asking them to provide utility bills etc. might not detect this either.

There have been many reports of hospitals demanding far more information than is necessary. People report serious invasions into their privacy, with hospitals demanding to see e.g. payslips or bank statements, while threatening to withold or charge for treatment if these are not provided. There is a "tool" provided by Department of Health for hospitals to use when establishing whether people are eligible for NHS care.[8] The version on the website on 19 March 2017 is not unreasonable if interpreted appropriately, but it appears that some hospitals have misinterpreted it. It provides lists of examples of the sort of evidence that people could provide to show that they are normally resident, but some EEA nationals report being required to provide several of the pieces of evidence listed, when any one would be sufficient. It is particularly concerning that some hospitals are demanding that people provide documents which are very private, and would not normally be shared with others due to the risk of fraud and identity theft - such as bank statements.

EEA nationals who are ordinarily resident, and who are required to provide excessive or over-intrusive proof (such as bank statements when other evidence is available) are advised to challenge this. It might help if they take a print-out of the tool, and the main guidance document. Many people at their most vulnerable when they become patients, however; and it is outrageous that some endure unnecessary stress because of officious and unnecessary bureaucracy.

See also

External links

References

  1. a b Lancet. Care for vulnerable migrants in the UK. Lancet 2009;373(9671):1224-1224 (may require subscription)
  2. Department of Health. 2016 (February). Guidance on implementing the overseas visitor hospital charging regulations 2015: Ways in which people can be lawfully resident in the UK, Department of Health
  3. Department of Health International Health and Public Health Policy Division. Guidance on implementing the overseas visitor hospital charging regulations 2015: Department of Health, 2016 (February 2016); p30 (or pdf
  4. [https://www.gov.uk/government/publications/guidance-on-overseas-visitors-hospital-charging-regulations Department of Health. 2016 (February). Guidance on implementing the overseas visitor hospital charging regulations 2015: Ways in which people can be lawfully resident in the UK, Department of Health (or pdf) (see S14, p6).
  5. English, P. M. and D. E. Bechinger-English. 2016 (13 October). "Trust plans to ask pregnant women for photo ID before accessing maternity services (rapid response)." BMJ 355: i5550 DOI: 10.1136/bmj.i5550
  6. Department of Health. 2016 (February). Guidance on implementing the overseas visitor hospital charging regulations 2015: Ways in which people can be lawfully resident in the UK, Department of Health (or [https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/496967/lawfully-resident-uk.pdf pdf) (See S16, p6)]
  7. Alice Ross. NHS hospitals to charge overseas patients for non-urgent care. The Guardian 2017 (6 February).
  8. Department of Health. Ordinary residence tool. Undated. Last viewed 2017 (19 March) or pdf
  9. Cassidy J. Free for all? BMJ (Clinical research ed.). 2008; 337:a1111.(Epub)