EU health

Changes in EU membership have focused attention on service provision in the UK, including healthcare. Ever increasingly, solicitors are being asked to advise not only individuals, but also health trusts on treatment provision. With potential for yet further expansion, this is an area in which lawyers will find themselves more and more involved.

On 1 January 2007, Romania and Bulgaria were the latest of a number of countries to become part of the European Union (EU). The Accession Treaty enables nationals from the new member states to travel freely across the EU, as well as live and work in other states. In doing so, those individuals will also be covered by the provision of healthcare arrangements within Europe.

European healthcare arrangements

There are healthcare arrangements in place between all member states of the European Economic Area (EEA) which includes member states of the EU, plus Liechtenstein, Switzerland, Iceland and Norway '“ governed by the European Community Social Security Regulations. Treatment to individuals visiting the UK from the EEA is provided under these regulations.

Establishing entitlement

The regulations mean individual hospitals and trusts have to determine whether a patient is liable to be charged for treatment or not. Individuals from accession states should be able to demonstrate their right to treatment by showing a European health insurance card. The Department of Health has indicated that eventually it is intended that this will be the 'sole method for establishing entitlement to NHS treatment'('Update on EU Enlargement and Overseas Visitors Rights to Primary Care Treatment in the UK', Department of Health; 13 December 2006). Nonetheless, at the time of writing, it is also acceptable for alternative documentation such as a passport, identity card or residence card to be shown.

Healthcare provision

Stemming from the arrangements, the regulations exempt individuals who are visiting the UK from the EEA from charges for NHS treatment which in the view of a health professional is required in an emergency, or is immediately necessary once an individual has arrived in the UK.

The regulations are not intended to apply to elective treatment or treatment for a pre-existing condition which can wait until that individual returns home and do not apply to situations where individuals come to the UK without legitimate authorisation in order to access free treatment.

As the UK has reciprocal healthcare arrangements with these countries, residents of the EEA, including the new accession states are eligible for treatment that is medically necessary while temporarily in the UK, and will therefore be exempt from charges for treatment that is required promptly for a condition which has arisen following arrival to the UK. Medically necessary treatment will also include treatment of chronic conditions including routine monitoring (eg, renal dialysis, insulin monitoring), but will not include elective treatment for which an individual has specifically travelled to the UK to receive. Treatment for some communicable diseases is also free of charge, but this does not extend to HIV/AIDS, where only an initial test and counselling are free.

'Ordinarily resident'

If an individual is 'ordinarily resident' in the UK, they are not only entitled to emergency treatment, but are also entitled to elective treatment or treatment for a pre-existing condition to which any other UK resident is entitled. The meaning of 'ordinarily resident' in UK law has been interpreted by the House of Lords as being 'someone who is living lawfully in the UK voluntarily and for a settled purpose as part of the regular order of their life for the time being, with an identifiable purpose for their residence here which has a significant degree of continuity to be properly described as settled'(R v Barnet LBC ex parte Shah [1983] 2 AC 309). Individuals should be able to show that they are entitled to live in the UK and where they have been living for the past year.

Therefore under current regulations, anyone who has been living lawfully in the UK for 12 months immediately prior to receiving NHS treatment is exempt from charges for that treatment. This exemption also applies to the spouse or children (aged 16 or 19 if in full time education) of the individual if living with them on a permanent basis.

Exemptions for charges for NHS treatment will also apply to individuals from accession states who come to work and study in the UK in certain defined circumstances which are clearly set out by the Department of Health (for more details, visit www.dh.gov.uk).

Persons from any member state will however be required to pay statutory NHS charges, ie, prescription charges in line with ordinary UK residents, unless otherwise exempt.

Cross-border referrals

Within Europe, a system does exist for cross-border referral of patients to another member state for treatment. However, this cannot occur without prior authorisation of cost payment and is subject to a number of controls, not least dealing with the thorny issue of 'undue delay'. The European Commission is looking generally at the issue of healthcare and cross-border patient mobility, and has published a consultation paper 'Consultation Regarding Community Action on Health Services'.

The consultation is scheduled until the end of January 2007, but it will be interesting to note the future developments in this area.

Conclusion

As the EU grows, it is timely to be reminded of the requirements and scope of healthcare provision under reciprocal healthcare arrangements particularly with regard to the new accession states.

It will also be interesting to see how increasing expansion ultimately impacts on cross-border patient mobility, and whether the Commission is indeed able to offer greater clarity in this area for the future.