On 6 April 2015 the new NHS (Charges to Overseas Visitors) Regulations 2015 ("the 2015 Regulations") came into force. In this article we explain the background to the new Regulations, the key changes implemented, and their potential effect.
Research previously carried out by the Department of Health suggested that overseas visitors were receiving NHS treatment amounting to approximately £388 million each year, but only £73 million was being recovered as chargeable treatment.
The 2015 Regulations replace the previous 2011 Regulations and are intended to improve the identification and recovery of NHS costs from overseas visitors and migrants. It is hoped that the 2015 Regulations will assist in the Department of Health's efforts to recover up to £500 million a year by 2017/2018.
The changes will affect visitors and former residents differently, depending on where they now live.
The 2015 Regulations – Key provisions
Within the UK, free NHS treatment is provided to those who are 'ordinarily resident'. Nationality, payment of UK taxes, national insurance contributions, being registered with a GP or owning property in the UK is not relevant to the issue of whether someone is ordinarily resident. Instead, it must be shown that the residence is lawful, adopted, voluntary, and for settled purposes as part of the regular order of a person's life for the time being, whether of short or long duration.
People living in an European Economic Area (EEA) country or Switzerland
Most people who live or work in another EEA country or Switzerland will get free access to medically necessary NHS care using a European Health Insurance Card (EHIC) which will be issued to them by the country they live in. This allows the NHS to recover the healthcare costs from the patient's original country of residence.
UK pensioners who have moved to another country in the EEA will have the same rights to NHS care as those living in England.
Those who live elsewhere in the EEA or Switzerland and are not working and are under retirement age should use their EHIC if seeking medical treatment in the UK. If they do not have this card, they will have to pay for treatment and should ensure that they have health insurance when travelling to the UK.
People living outside the EEA/Switzerland
Non EEA residents and Swiss nationals who have indefinite leave to remain in the UK and are ordinarily resident here, and who have paid or are exempt or waived from paying the immigration health charge (also referred to as the health surcharge) are entitled to NHS services for free. Therefore while their visa remains valid, they must not be charged.
Non EEA residents and Swiss nationals who are visiting the UK for six months or less, or are in the UK without permission, must be charged for services they receive, and should ensure that they have personal health insurance, unless they are exempt from paying for NHS treatment. Otherwise they will have to pay for NHS treatment at 150% of the NHS national tariff for the relevant services provided.
An exemption for temporary migrants coming to the UK for six months or more from outside the EEA/Switzerland has been introduced. They are required to pay the health surcharge unless they are exempt, or payment is waived.
Payment of the health surcharge entitles the payer to NHS-funded healthcare on the same basis as someone who is ordinarily resident. Payment of the health surcharge is mandatory when making an immigration application, subject to certain categories of people and the discretion of the Home Office to waive or reduce the payment.
The following services will remain free to all, no matter where they are resident:
- A&E services – this includes walk-in clinics
- Family planning services
- Diagnosis and treatment of some infectious diseases
- Diagnosis and treatment of sexually transmitted infections
- Treatment required for a physical or mental condition caused by torture, female genital mutilation, domestic violence, or sexual violence
If it becomes known that a person specifically travelled to the UK to seek any of the above treatments, it may become chargeable.
There are several groups of people who are exempt from being charged, or are entitled to free care. The following groups of overseas visitors will be exempt from paying for NHS services:
- Those who have paid the NHS surcharge
- Those with an enforceable EU right to free healthcare – this includes anyone insured for healthcare in another EEA member state or Switzerland and who presents either a European Health Insurance Card or a Provisional Replacement Certificate
- Vulnerable patients and those detained – this includes refugees, asylum seekers, children looked after by the local authority, victims of human trafficking, those detained under the Mental Health Act 1983 or Mental Capacity Act 2005, prisoners and immigration detainees
- UK Crown servants, British Council or Commonwealth War Graves staff, those working in UK government-funded posts overseas, and their spouse/civil partner and children under 18
- Armed forces members, war pensioners, armed forces compensation scheme recipients and their families
Returning to the UK
Those who return to the UK to settle will be classed as ordinarily resident and will immediately be eligible for free NHS care.
Immediately Necessary Treatment
Relevant NHS bodies have human rights obligations and so chargeable treatment which is considered by clinicians to be immediately necessary must never be withheld from an overseas visitor, even when that overseas visitor has indicated that they cannot pay. This does not mean that the treatment should be provided free of charge. Charges will still apply and must be pursued after treatment is provided.
For treatment which is not immediately necessary but is still classed as urgent, every effort should be made to obtain payment or a deposit in the period before treatment starts.
Non-urgent, or elective, treatment should not begin until full payment has been received.
What an NHS body needs to do
- Take steps to identify all patients who may be liable to charges
- Interview people to establish if they are ordinarily resident or if not, whether they are exempt from charges, or liable for charges
- Make and recover charges from people who are not covered by an exemption. Provide them with a written statement explaining why charges apply, what the charge is estimated to be and how they can pay
Staff responsible for booking in patients upon arrival will need to be prepared to ask for basic supporting evidence to show that they are ordinarily resident.
All staff working for relevant NHS bodies, including clinicians and managers, have a responsibility to ensure that the charging rules work effectively. It is unclear what level of investigation hospital staff will be expected to undertake in assessing whether someone is ordinarily resident or not. The Department of Health strongly recommends that relevant NHS bodies appoint a designated person(s) to oversee the implementation of the 2015 Regulations (an Overseas Visitors Manager). A toolkit has also been produced which provides precedent letters to patients as well as posters and maps to be displayed in clinical areas. Click here for these resources.
A review is currently taking place while the 2015 Regulations are implemented and this is due to be published in autumn 2015, with a full review taking place in 2017/18.
This is the first time commercial charging has been introduced to the NHS to this extent and it is understandable given the financial pressures the NHS is under. It is intended that the 2015 Regulations will ensure that people who already live and work in the UK do not end up paying through their taxes for overseas visitors who are not economically active. The aim is that the savings made by the NHS will support better delivery of a reasonable service element to all patients.
The Department of Health has issued guidance on implementing the 2015 Regulations.