Hervey, T.K.

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This is a repository copy of Reciprocal healthcare arrangements after Brexit.White Rose Research Online URL for this paper:http://eprints.whiterose.ac.uk/139220/Version: Published VersionArticle:Hervey, T.K. orcid.org/0000-0002-8310-9022 (2018) Reciprocal healthcare arrangements after Brexit. BMJ, 363 (8176). k4727. ISSN 0959-8138 https://doi.org/10.1136/bmj.k4727© 2018 The Author(s). Reproduced in accordance with the publisher's self-archiving policy.eprints@whiterose.ac.ukhttps://eprints.whiterose.ac.uk/Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing eprints@whiterose.ac.uk including the URL of the record and the reason for the withdrawal request. Reciprocal healthcare arrangements after BrexitPeople need clear guidance, to avert harm in the event of no dealTamara K Hervey Jean Monnet professor of EU LawSchool of Law, University of Sheffield, UKThose EU 27 nationals who reside in or visit the UK, and viceversa, are currently entitled to healthcare under EU law. Thelaw covers entitlements for people who are settled in a differentcountry and includes, for visitors, the European Health InsuranceCard (EHIC) system. The underlying ideas are reciprocity(people are entitled to medical treatment as if they were anational of the country providing it) and that the “home country”(where the patient has paid tax or national insurance) pays. Therules are quite complex and sometimes people use courts toenforce their entitlements. The European Commission operatesas a clearing house for payments between countries and givesinformation to people about their rights.On leaving the EU, the UK will no longer be part of this system.But the implications depend critically on whether the UKgovernment secures a Brexit deal based on the currentWithdrawal Agreement.1Deal . . .The Withdrawal Agreement, if agreed, will give rights to EU27 nationals and their families who are legally residing in theUK on 29 March 2019 until the end of the transition period(December 2020). Those rights include current healthcareentitlements. So, for instance, members of the UK health andsocial care workforce from EU 27 countries,2 and their families,who are resident in the UK, will continue to have access to NHScare. The same will be true for UK nationals resident in EU 27countries. Under the same agreement, some rights—includingEHIC based treatment, planned cross border healthcare, andhealthcare for pensioners—will continue after December 2020for as long as the person concerned continues to be “in asituation involving both a member state and the UK at the sametime,” which could be for the rest of a person’s life.3After December 2020, UK law will apply to EU residents in theUK, and either EU law (for some long term residents),4 or thelaw of each member state will apply to UK residents in the EU.5This will be the case unless reciprocal healthcare is covered infuture agreements between the UK and the EU, or individualEU countries. On 26 October, the UK government published abill6 empowering the Secretary of State for Health to makepayments under international agreements for reciprocalhealthcare, leading to speculation that “back channel”discussions have taken place about such agreements post Brexit.So the Withdrawal Agreement would legally secure substantialcontinuity with the current position, at least until 2020.. . . Or no dealThe opposite is true for a no deal Brexit. In that situation, accessto healthcare after March 2019 would rely solely on existinglaws in the EU (for UK nationals seeking healthcare in the EU)and in the UK (for EU nationals seeking healthcare in the UK).The EU (Withdrawal) Act7 promises legal continuity, includingcontinuity of access to the NHS for EU nationals. But under ano deal Brexit, the government is likely to use powers underthe act to alter the rules, so EU 27 nationals are treated likepeople from the rest of the world.Under current English law, primary care, emergency care, anda small number of other treatments are free for everyone comingto England from other countries unless they have travelledspecifically for the purpose of getting treatment.8 Access toother NHS services and to hospital care depends on residence,not nationality. Non-resident short term visitors to Englandwould have to pay for NHS hospital care. Non-resident visitorsstaying for more than six months would have to pay animmigration health surcharge and 150% of the NHS nationaltariff for hospital treatment.8 Different rules apply in Scotland,Wales, and Northern Ireland.9The position for UK nationals in the EU will be covered mainlyby the laws in each country. These grant free emergency care,though define emergency differently. EU law gives rights tolong term residents only. It will be difficult for UK nationals tofind out their rights, and there will be no mechanism for EUcountries to recoup the costs of treating them. Countries suchas Spain may have to revise their provision, potentially leavingUK pensioners with no access to free healthcare. This in turnmay increase pressure on the UK to tighten its rules on NHStreatment for EU nationals.The situation is uncertain, and will be complex and difficult tonavigate in the event of a no deal Brexit. While EU citizensresident in the UK would still be able to access free healthcare,UK citizens living in EU countries may not. This will causet.hervey@sheffield.ac.ukFor personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribeBMJ 2018;363:k4727 doi: 10.1136/bmj.k4727 (Published 14 November 2018) Page 1 of 2EditorialsEDITORIALS on 27 November 2018 by guest. Protected by copyright.http://www.bmj.com/BMJ: first published as 10.1136/bmj.k4727 on 14 November 2018. Downloaded from anxiety for most and more serious harm for those who, forinstance, can no longer afford non-emergency treatment wherethey live. All forms of Brexit are bad for health: a no deal Brexitparticularly so.Competing interests: I have read and understood BMJ policy on declaration ofinterests and declare the following: UK in a Changing Europe: ESRC Brexit PriorityGrant ES/R002053/1; Jean Monnet Network Grant on EU Health Law and Policy;member of Advisory Board NHS Against Brexit (formerly Healthier In); specialistadviser to House of Commons Health and Social Care Committee.Commissioned, not peer reviewed1 Draft Agreement on the withdrawal of the United Kingdom of Great Britain and NorthernIreland from the European Union and the European Atomic Energy Community. 19 March2018. https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf.2 NHS Digital. NHS workforce statistics: September 2017: provisional statistics. 2017.https://digital.nhs.data-and-information/publications/statistical/nhs-workforce-statistics/nhs-workforce-statistics-september-2017-provisional-statistics.3 Hervey T. The implications of the European Commission Draft Withdrawal Agreementtext for health: patients and reciprocal healthcare. 18 March 2018. http://eulawanalysis.blogspot.co.uk/2018/03/the-implications-of-revised-european.html.4 Council Directive. 2003/109/EC of 25 November 2003 concerning the status of third-countrynationals who are long-term residents. 2004. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0109.5 Department for Exiting the European Union. The future relationship between the UnitedKingdom and the European Union. July 2018. www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union.6 Healthcare (International Arrangements) Bill. 2018. https://publications.parliament.uk/pa/bills/cbill/2017-2019/0279/cbill_2017-20190279_en_1.htm.7 European Union (Withdrawal) Act. 2018. 2018. www.legislation.gov.uk/ukpga/2018/16/contents/enacted.8 The National Health Service. (charges to overseas visitors) regulations 2015. 2015. www.legislation.gov.uk/uksi/2015/238/contents/made.9 EU Home Affairs Sub-Committee on Brexit. Reciprocal healthcare. 11 October 2017. Oralevidence of Professor McHale. www.parliamentlive.tv/Event/Index/fd209c2a-4336-43ca-b0df-7e9aa19665d3.Published by the BMJ Publishing Group Limited. For permission to use (where not alreadygranted under a licence) please go to http://group.bmj.com/group/rights-licensing/permissionsFor personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribeBMJ 2018;363:k4727 doi: 10.1136/bmj.k4727 (Published 14 November 2018) Page 2 of 2EDITORIALS on 27 November 2018 by guest. Protected by copyright.http://www.bmj.com/BMJ: first published as 10.1136/bmj.k4727 on 14 November 2018. Downloaded from 

Reciprocal healthcare arrangements after Brexit

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Reciprocal healthcare arrangements after Brexit

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