Viewpoint: NHS fees for non-EU nationals are a legal minefield for GPs

Writing exclusively for GPonline.com, lawyer Richard Jolly argues that plans to charge non-EU nationals for NHS care could cause legal and moral problems for GPs.

Richard Jolly: GPs could face GMC challenge over charges for 'health tourists'
Richard Jolly: GPs could face GMC challenge over charges for 'health tourists'

Much has been written about how so-called health tourists are bleeding the NHS dry. The coalition government’s response has been to propose that non-EU citizens will face a £200 levy on their visa to cover the cost of seeing a GP. Free access to GPs for tourists and those staying less than six months may also be curbed under the reforms.

The proposals have left GPs concerned about the extent to which they will be required to assess the eligibility criteria, the legal implications of doing so and whether this will expose them to civil or criminal liabilities or even see them hauled before the GMC to explain their failure to treat a patient in need of urgent care.

Clarity

Clarity is needed as to how the proposals will be implemented and the extent of GPs' obligations. At the current time there is no law excluding anyone from primary care and therefore immigration status and ‘ordinary residence’ is irrelevant.

By linking eligibility with immigration GPs are likely to be breaching the Equalities Act 2010 provisions on indirect discrimination. The same demands will have to be made of all patients as opposed to any individual being singled out on the grounds of nationality, race, or religion.

Perhaps the biggest concern for GPs is that they will face a welter of litigation from failing to treat a 'health tourist' who suffers harm as a result. The number of clinical negligence claims is increasing year on year. This is not surprising given the almost daily adverse publicity about the NHS and scaremongering within the media.

The situation has only been inflamed by the Francis report and more recently concerns about mortality rates at a number of hospital trusts. Claimant lawyers do not need to be given any further encouragement to commence litigation. The proposed reforms run the risk of opening up a new class of claim.

Condemnation

If a non-EU national turns up in a GP practice but is turned away because he or she has failed to pay the £200 NHS charge (or is simply unable to satisfy the receptionist that they qualify for free NHS care) and suffers harm as a result, where does that leave the GP? It’s probable that in those circumstances that the GP would be condemned.

To conclude, while the GP might not be under a legal duty to intervene, how would the failure to act be viewed by the public and the GMC? It will be necessary for the GMC to issue clear guidance should the coalition government introduce a levy for non-EU nationals. However, the position in relation to civil or criminal liabilities is likely to remain uncertain – at least until the first few test cases have gone through the system.

Richard Jolly is a Partner at law firm Weightmans LLP

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