On 20 July 2009 a joint Department of Health and Home Office review group published its findings on a review of access to NHS services by foreign nationals. The review considered the rules for charging non-UK residents for NHS services. Currently, “overseas visitors” are liable to pay charges for hospital treatment, under the NHS (Charges to Overseas Visitors) Regulations 1989.  

The application of the regulations was considered by the Court of Appeal in March this year in R(YA) v Secretary of State for Health which can be accessed here. The court criticised Department of Health guidance on how trusts should apply the regulations. The guidance can be accessed here.  

The guidance was found to be deficient in explaining the circumstances in which treatment should be withheld if the overseas visitor patient cannot pay charges, particularly where the overseas visitor cannot leave the UK to access treatment in their home country.

ollowing on from this joint review the Department of Health has set out some proposals which will be consulted on in the autumn. They include proposals which should address the issues highlighted by the Court of Appeal’s decision. The proposals are:  

  • asylum seekers whose claim has been refused but who are being supported because there are recognised barriers to their return home should be exempt from charges;
  • unaccompanied children, including those in local authority care, should be exempt from charges;  
  • UK residents may be absent from the country for up to six months in a year before being considered for charges for NHS hospital treatment;
  • working with the UK Border Agency to recover money owed to the NHS and exploring options to amend the Immigration Rules so that visitors will normally be refused permission to enter or remain in the UK if they have significant debts to the NHS; and  
  • investigating longer-term feasibility of introducing health insurance requirements for visitors.

Changes along the lines proposed and improved guidance on treating those unable to leave the UK should address the criticisms made by the Court of Appeal. However it is anticipated that trusts will remain responsible for determining whether treatment for individual overseas visitors is necessary and how urgently it is required. These can be difficult judgements and are often contested by individual patients.