An extract from The Healthcare Law Review, 4th Edition


Healthcare in the UK is dominated by the National Health Service (NHS), a universal healthcare system largely free to citizens at the point of access. The NHS is not a single organisation but a network of national and local organisations all operating under the NHS 'brand'. The organisation of the NHS varies between the four nations of the UK: this chapter will focus on England. While private healthcare is readily available in the UK, the vast majority of people use the NHS either for the entirety of their healthcare or as a gateway before choosing to access private healthcare at the secondary care stage.

In England, healthcare is currently provided distinctly from personal, non-medical ('social') care, with different legislative schemes in place; the NHS is governed by, among others, the National Health Service Act 2006, while social care is provided by local authorities, primarily under the Care Act 2014. This divide is increasingly being questioned by both patients and practitioners, and the covid-19 pandemic has highlighted fragmentation in the sector and strengthened calls for a National Care Service.

Healthcare services are commissioned either at the local level by clinical commissioning groups (CCGs) made up of local general practitioners or, for more specialised commissioning, at a national level by the National Health Service Commissioning Board (known as NHS England). Funding pressures on the NHS have been political priorities and have been reflected in the latest NHS Long Term Plan, published in January 2019. The biggest impact of Brexit is likely to be the availability of healthcare professionals.

There is an increasing role for private healthcare provision, either directly to the NHS (i.e., by running NHS-provided services) or by providing private services directly to patients. In 2018–2019, NHS spending with private sector providers in England was £9.2 billion (7.3 per cent of the total budget). This has been politically contentious but is unlikely to change in the short term and private providers are as closely regulated as the NHS.

The healthcare economy

i General

Approximately 11 per cent of the UK population has some form of private medical cover, although this is rarely comprehensive, and cover is not usually provided for accidents and emergencies. In 2018 the private market for self-paid treatments was an additional £1.2 billion spent largely on elective surgery or physiotherapy, where there may be a wait to receive such treatment on the NHS.

In England, NHS hospital treatment and primary care is free at the point of use to those ordinarily resident in the UK. It is funded through general taxation and national insurance deducted from salaries. There are fixed charges for certain items of NHS care, such as prescription medicines and dental treatment. Exemptions from these charges are available on the basis of age, income or certain medical conditions.

As a current member of the European Union, UK nationals have reciprocal arrangements with European Union states. These arrangements will cease in the event of a no-deal Brexit, although the government has expressed a desire to maintain the current arrangements.

The regulations that set the legal framework for cost recovery from overseas visitors changed in 2017; it is now mandatory to collect payment in advance of services, unless treatment is immediately necessary or urgent.

The role of voluntary or third-sector providers in healthcare in England is limited, given the availability of NHS care, but one particular area of charitable provision is hospice care.

ii The role of health insurance

Some UK citizens opt to have private health insurance, often as a tax-efficient employment benefit, but it is not compulsory. EU nationals living in the UK and not employed are required to have comprehensive sickness insurance, and those eligible for overseas visitor charges may rely on insurance. In addition, those applying for certain types of entry clearance or leave to remain in the UK must pay an Immigration Healthcare Surcharge of £400 a year to use NHS services this is due to rise to £624 from October 2020 and will extend to EU workers once Brexit goes ahead. The fee however is to be waived for healthcare workers, after an announcement during lockdown.

Private health insurance is available in a variety of forms, including access to private specialists and hospitals, or as a rebate for time spent in NHS care.

iii Funding and payment for specific services

Which services are routinely commissioned by NHS England or a CCG is substantially informed by evidence-based guidance and advice issued by the National Institute for Health and Care Excellence (NICE).

NICE has various powers to produce guidance and recommendations to NHS bodies on care pathways and technologies they are expected to provide. NHS bodies are legally obliged to fund treatments recommended by NICE's technology appraisal recommendations; however, other guidelines do not have the same level of authority.

For example, NICE guidelines recommend that three IVF cycles should be offered to women under 40 years of age who have been trying to get pregnant naturally for two years, or who have had 12 cycles of artificial insemination. However, the final decision about who can have NHS-funded IVF in England is made by local CCGs, whose criteria may be stricter than those recommended by NICE. NICE's role is to assess the clinical and financial efficacy of the technology.

The Cancer Drugs Fund (CDF) is another option at the end of the NICE technology appraisal process. The CDF acts as a managed access fund where more information is required to determine clinical effectiveness. A budget impact test also applies for certain technologies over the first three years of a technology's use in the NHS. If the budget impact exceeds £20 million, in any of the first three years, NHS England may engage in commercial discussions with the company to mitigate the impact on the rest of the NHS budget. This has resulted in confidential discounts being agreed for medicines such as Keytruda in 2018 and Luxturna in 2019.

In some cases, further funding is available through Individual Funding Requests (IFRs). Where NHS England's duty to provide health services is not met under NICE technology appraisal recommendations, individuals can request funding for treatment through an IFR. The law surrounding IFRs is discussed in the case of S v. NHS England. One area of increasing IFR applications has been for medicinal cannabis since it became lawful in November 2018.

As set out above, standard charges apply to a number of NHS services.

Primary/family medicine, hospitals and social care

The UK healthcare system is heavily reliant on primary care practitioners (general practitioners, GPs) delivering family medicine and acting as gatekeepers to secondary and tertiary care, which in the NHS is rarely directly accessible, except in emergencies.

GP providers are normally independent businesses, providing services to the NHS under contracts with NHS England. While these are private law contracts negotiated between NHS England and the British Medical Association (acting as the representative of all GPs), many of the provisions are required under the NHS (General Medical Services Contracts) Regulations 2015 or the NHS (Personal Medical Services Agreements) Regulations 2015. Similar arrangements are in place for NHS pharmacy and dental services.

NHS hospitals and secondary services are run by local trusts or foundation trusts, which are independent of CCGs or NHS England. The relationship between them is contractual; trusts and foundation trusts are providers of services commissioned by CCGs and NHS England. Emergency services are almost exclusively available through the NHS because of the high operating costs. However, secondary or hospital care may be provided by either the NHS or private providers. Private secondary care may either take place in separate private hospitals, or private patient units in NHS hospitals. While it is not usually possible for patients using the NHS to see a medical consultant without first being referred by a GP, there is nothing to prevent this in the private sector.

It should be noted that social care is, at present, provided under an entirely separate legislative scheme by local authorities. However, there has been an increasing movement in recent years towards the integration both of different health services and of health and social care. In 2019, the government published the NHS Long Term Plan to focus on funding, staffing and the pressures of a growing and ageing population. A new service model is proposed with every patient having the right to online GP consultations. Expanded community health and social care teams are intended to create genuinely integrated teams, and new integrated care systems are to be in place nationally by 2021.

Healthcare in the UK benefits from a near universal Summary Care Record (SCR) for each patient, which contains basic information and is accessible by a range of NHS bodies. In England (and to some extent the rest of the UK), healthcare records are held at a local level by the patient's GP and the relevant hospital. Of GP practices in England, 98 per cent now use a system that automatically creates an SCR unless a patient has opted out. This can be accessed by professionals, and patients can see who has accessed their records.

The UK's data protection law has been significantly strengthened by the EU General Data Protection Regulation whose principles and approach are expected to be retained post Brexit. Alongside this, NHS Digital provides a data security toolkit for organisations to measure their performance against the National Data Guardian's data security standards, which is required to be completed annually.