Earlier this month the government published its response to the consultation on the extension of charging overseas visitors and migrants using the NHS in England.
This includes proposals for non-exempt overseas visitors to become chargeable - upfront and in full - for any care not deemed by a clinician to be ‘immediately necessary’ or ‘urgent’, and proposals for NHS bodies to identify and flag an overseas visitor’s chargeable status. The amendments to the law will come into effect from April 2017.
These changes will impact largely on secondary care in the first instance but the government has indicated that they expect primary care to ‘play its part’ in identifying patients’ chargeable status and charging non-exempt visitors. The government has acknowledged the challenges that this may present and has proposed a phased approach to introducing these changes in primary care.
The legislation surrounding who is and isn’t entitled to NHS healthcare, and which aspects of healthcare may be charged for, is complex. Details are also yet to be set out in some areas.
Access to primary care
The position regarding access to primary care in England remains that any patient can register for primary care treatment, regardless of whether they are 'ordinarily resident', their immigration status or if they are in the UK lawfully or not.1
Practices are also under a duty to provide emergency or immediately necessary treatment irrespective of nationality or immigration status.
The DH has indicated its intent to extend legislation to charge non-exempt visitors for primary care services (except for GP and nurse consultations) including prescriptions, dental and optical care. The details of this have not yet been set out.
Requesting information from patients
At present there is no requirement for a patient to provide documentary evidence of their identity or immigration status in order to register with a practice. Checking the immigration status of those asking to register puts the practice at risk of criticism, as it is likely to be viewed as discriminatory, and immigration status should not be a relevant factor when registering a patient for primary care services.
Vulnerable migrants may not have the usual documentation requested by practices prior to registering, such as a passport (which may have been retained by the Home Office or lost while leaving their country) or a bank statement or utility bill as proof of address.
NHS England states that 'any practice that requests documentation regarding a patient’s identity or immigration status must apply the same process for all patients requesting registration.'
Inability to provide identification documents or proof of address is not considered reasonable grounds to refuse to register a patient and medical care should not be withheld.
2017/18 GP contract
However, a new requirement in the 2017/18 GP contract in England means GP practices will be involved in identifying patients who may need to pay for NHS care when they register with the practice. From July 2017 practices will need to use a revised GMS1 form when patients register, which will include questions to determine a patient’s eligibility for free healthcare.
Practices will have to manually record that the patient holds either a non-UK issued EHIC or a S1 form in the patient’s medical record and then send the form and supplementary questions to NHS Digital (for non-UK issued EHIC cards) or the Overseas Healthcare Team (for S1 forms) via email or post. Full details on this are expected in updated contract guidance when it is published.
The BMA and NHS Employers say that under these arrangements the patient’s country of origin will be charged, not the patient themselves.
Eligibility for free NHS hospital care
The NHS (Charges to Overseas Visitors) Regulations 2015 as amended sets out the current position in England. The position varies between England, Wales, Scotland and Northern Ireland.
Those who are ‘ordinarily resident’ in the UK, EEA nationals and those from countries with bilateral healthcare agreements with the UK, and those on a work or student visa, are entitled to free secondary care. It is not yet clear whether an exit from the EU will result in changes to these entitlements, but for the moment this right is unaffected.
Only those non-EEA nationals who have ‘indefinite leave to remain’ status are entitled to free NHS secondary care.
Non-EEA nationals coming to the UK for a period of longer than six months are required to pay an ‘immigration health surcharge’ with their visa application fee. This currently entitles applicants to free NHS primary and secondary care, although their entitlements will change under the new legislation.
Those who do not fall into these categories, such as undocumented migrants, are able to access some secondary services under the NHS. Treatment for some communicable diseases, such as TB, is free to everyone. This is also true for sexually transmitted infections, including HIV, and for family planning services.
Currently emergency services are available to all patients irrespective of residency status. In addition, treatment under the Mental Health Act is free for everyone.
Following the amendments to the law in April 2017, non-exempt visitors will be required to pay for the following:
- All NHS–funded services, including those provided by a non-NHS organisation or outside an NHS hospital (except for primary care at present)
- Assisted reproductive services
GPs are advised to refer patients to secondary care on clinical grounds solely and the patient’s entitlement to free care will be assessed by the receiving facility. However, it may be appropriate in some circumstances for GPs to warn patients if it is likely that the referral could lead to charges.
Those not entitled to the wider aspects of secondary care can still receive treatment prior to payment if the treatment is urgent, immediately necessary to save a life or prevent a condition from becoming immediately life-threatening.
In these circumstances hospitals are obliged to provide the treatment whether or not any payment has been made, although they can charge the patient for the treatment provided. The decision regarding the urgency of treatment should be taken by a clinician.
The DH is considering further proposals to charge overseas visitors for NHS services in A&E departments and other urgent care providers.
Ensuring patients are not denied access inappropriately
This is a time of change and while some proposals are being finalised by the government it is important that providers are well-informed on the current position, to ensure that those entitled to healthcare continue to receive it, and aware of any upcoming changes. In addition to legislation, doctors also have an ethical duty to ‘make the care of their patients their first concern’.2 GPs can contact their medical defence organisation for further advice and guidance.
- Dr Tisdale is medico-legal adviser at Medical Protection
- Patient Registration. Standard Operating Principles for Primary Medical Care (General Practice) NHS England. November 2015
- Paragraph 1 GMC Good Medical Practice (2013)