Introduction

The National Health Service (Charges to Overseas Visitors) Regulations 2015 have been amended by the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017.

The 2017 regulations substantially amend the 2015 regulations by extending, as of 23 August 2017, the obligation to charge for NHS funded services provided to overseas visitors, and amending the existing exemptions from charge. A legal obligation is also placed on NHS foundation trusts and NHS trusts to record against a patient’s NHS record the fact that the patient has been determined to be an overseas visitor, the date of that determination and whether an exemption applies.

Additionally, the organisations required to make and recover charges (i.e. ‘relevant NHS bodies’ such as NHS trusts, NHS foundation trusts and local authorities exercising public health functions within the meaning of the NHS Act 2006) was widened as of 23 October 2017 to bring into scope ‘any other person providing relevant services’ (i.e. non-NHS providers of NHS funded secondary care) and requiring, except in certain circumstances, an estimate of the full charge of a service to be secured in advance of the service being provided.

The changes mean that NHS and non NHS providers of funded care need to ensure that they have fully understood the duty imposed on them to make and recover charges for provision of NHS services and that they have taken steps to assess overseas visitors entitlement to free NHS services with a view to levying and recovering charges for non-exempt overseas visitors.

Overseas visitor

The first step for organisations is to determine whether or not an individual in receipt of NHS services is an overseas visitor by reference to the ‘ordinary residence’ test. There are three aspects to the text of ordinary residence and since 6 April 2015, non-EEA nationals additionally require indefinite leave to remain.

Relevant services

The next is to determine which NHS services are exempt from charges for the overseas visitor. Under the 2017 regulations, ‘relevant service’ means accommodation, services, or facilities provided, or whose provision is arranged, under the National Health Service Act 2006. This excludes:

  • primary medical services provided under part 4 of the Act;
  • primary dental services provided under part 5 of the Act;
  • primary ophthalmic services provided under part 6 of the Act; and
  • any equivalent services provided, or whose provision is arranged, under the Act.

The amendments mean that providers of community care and treatment – NHS continuing health care, district nursing and healthcare in a care home for example – are chargeable to overseas visitors. The amendments however exclude after-care services provided under Section 117 of the Mental Health Act 1983 which remain exempt from charge. Additionally, if a person receives care and treatment from more than one provider, each provider is new under a duty to raise separate invoices and secure payment for services they have provided.

Exemptions

Consideration will next need to be given to whether the individual albeit an ‘overseas visitor’ is nonetheless exempt from charges applying the transitional arrangements and because they have paid the immigration health charge (Regulation 11 of the 2017 regulations).

Conclusion

Whilst the rationale behind the amendments is understandable and welcome, the implementations of the changes are likely in practice to take time and be challenging. The duties imposed upon NHS providers to levy and make charges is not to be taken lightly at a time of huge financial pressure and offers the opportunity to recover thousands and thousands of pounds otherwise lost to health tourism. NHS providers are encouraged to review the 2017 regulations and accompanying guidance.