Overseas visitors’ access to NHS services This complex, and often contentious, topic has recently been the subject of new law and guidance. This briefing note summarises the main elements of the scheme for charging overseas visitors for NHS services and explains the limits on overseas visitors accessing NHS care.
The NHS (Charges to Overseas Visitors) Regulations 2011 “the Regulations” and the Department of Health’s Guidance on Implementing the Overseas Visitors Hospital Charging Regulations dated 23 June 2011 “the Guidance” came into force on 1 August 2011 and replaced the 1989 Regulations and associated guidance that was issued in 2004. The Guidance is long but provides helpful, detailed advice. The document has the following key components:
Chapter 1 Introduction
Chapter 2 Overview of the Regulations
Chapter 3 How the Regulations work, including:
- Liability for, and making, charges
- Treatments that are exempt from charging
- Overseas visitors who are exempt from charging
Chapter 4 Providing treatment to those subject to charges and withholding treatment
Chapter 5 How to operate the charging regime effectively, including:
- Role of overseas visitors managers
- Interviewing overseas patients
- Liaison with the UK Border Agency
Chapter 6 Financial matters including recovering charges and writing off debts
Chapter 7 Visitors from Europe and the European Health Insurance Card scheme
Chapter 8 An A-Z guide to unusual cases
Appendices Example forms and useful contacts
Are some people ineligible to receive NHS treatment?
We are often asked whether certain individuals are “ineligible” to receive NHS care. No one is automatically ineligible to receive NHS care by reason of their residence or immigration status. Instead, some people must be charged for some types of NHS treatment and, if those charges are not paid, the treatment can, in some situations, be withheld because of the non-payment of the charges.
Unfortunately there is no single simple test to determine whether an individual is entitled to receive all their NHS treatment free of charge. NHS organisations must approach each case individually and determine:
- whether the patient is liable to be charged;
- whether the treatment in question is of a chargeable type; and
- whether to withhold particular treatment if the charges are not met.
What treatment must be charged for?
NHS organisations are under a legal duty to impose charges for certain services where they are supplied to an “overseas visitor”. The definition of overseas visitor is explored below, along with the circumstances in which an overseas visitor is “exempt” from charges despite not being ordinarily resident in the UK.
The treatment that must (in the case of non-exempt overseas visitors) be charged for is any treatment provided at, or under the direction of staff employed to work at, a hospital. Therefore, in the case of (non-exempt) overseas visitors all hospital treatment must be charged for, unless the treatment is of a type which is excluded. The treatment which is excluded from charging is:
- All treatment provided in the A&E department of a hospital.
- Family planning services.
- Treatment for certain communicable diseases, see para. 3.26 of the Guidance for a list.
- Treatment for sexually transmitted diseases (for HIV/AIDS, only the diagnosis and associated counselling is free of charge).
- Treatment of people detained, liable to be detained or subject to a CTO under the Mental Health Act 1983.
- Treatment which is imposed by, or included in, any order of the court.
Overseas visitors (even if they do not fall within an exemption) cannot be charged for these treatments so it follows there can be no question of these treatments being withheld from an overseas visitor.
As the Regulations only impose charges for treatment provided at, or under the direction of staff employed to work at, a hospital, any treatment not so provided will be free of charge to overseas visitors. Treatment provided in the community will be chargeable if it is provided by staff employed to work at a hospital – see para. 3.26 of the Guidance.
Access to primary care
The Regulations do not apply to primary care so there is no restriction on access to primary medical and dental NHS services. GPs have discretion to admit anyone to their NHS list, including overseas visitors. Therefore overseas visitors may receive a NHS registration card and number, although this does not indicate eligibility for free NHS hospital care.
Who must be charged?
Charges must be made where a chargeable treatment is supplied to an “overseas visitor” who does not fall into one of the exemptions. An overseas visitor is someone who is not “ordinarily resident” in the UK. Ordinarily resident is not simply concerned with immigration status. Holding a British passport does not, alone, indicate that an individual is ordinarily resident in the UK.
Broadly speaking, to be ordinarily resident in the UK an individual must be living in the UK on a lawful, voluntary and properly settled basis. Immigration status is relevant to whether an individual is in the UK lawfully but the test is a question of fact that cannot simply be answered by reference to immigration status. Determining whether someone is ordinarily resident in the UK will require examination of their legal status, the facts of their situation (eg, their degree of connection with the UK) and their intentions (eg, are they in the UK simply to visit, or are they intending to live here for the time being?).
Although the facts of an individual’s circumstances are relevant, there is no minimum time someone needs to be in the UK to be ordinarily resident here. An individual who moves to the UK, is here lawfully, on a permanent basis and has set up a home here, could be considered ordinarily resident in the UK as soon as they arrive. In contrast, someone who has been in the UK lawfully for four months, on holiday from their ”home” abroad, would probably not be ordinarily resident because, although having been in the UK for some time, they are not living here on a properly settled basis.
Ordinary residence is a person specific concept and particular circumstances must be considered. It is not possible for someone to be ordinarily resident in the UK because their spouse, parent or child is ordinarily resident here. However, someone who is not ordinarily resident in the UK (and so is an “overseas visitor”) may fall within an “exemption”, which allows them to access care free of charge. In some cases (see below), the spouse/civil partner and children of an exempt overseas visitor will also be able to get free treatment under the exemption.
Detailed guidance on the concept of ordinary residence can be found at 3.4 – 3.16 of the Guidance. In summary, individuals will fall into one of the following categories:
- Individuals ordinarily resident in the UK. These people are not within the charging scheme at all, so can receive all NHS treatment without consideration being given to the issue of charges.
- Individuals who are not ordinarily resident in the UK (ie, overseas visitors). These people will be within the charging scheme and must be charged for all chargeable NHS treatment (ie, must be charged for all hospital treatment which is not exempt treatment eg, A&E treatment).
- Individuals who are not ordinarily resident in the UK (ie, overseas visitors) but who are “exempt” under the Regulations. These people are within the charging scheme but are exempt from charges to the extent provided by the Regulations. In some circumstances, the family members of “exempt” overseas visitors will also be exempt from charges for NHS treatment despite being overseas visitors.
Overseas visitors who are exempt from charges
Some individuals who are not ordinarily resident in the UK may, because of their circumstances, be “exempt” from charges. Where this is the case, depending on the category of exemption, the person’s family (even if they too are not ordinarily resident) may also be “exempt” from charges.
It should be remembered that exemptions (where applicable) apply to “exempt” an overseas visitor from charges under the Regulations; falling within an exemption does not make an overseas visitor ordinarily resident in the UK. It must also be remembered that an individual does not have to fall within the exemptions to get treatment free of charge - only people who are overseas visitors (ie, not ordinarily resident in the UK) “and who do not fall within an exemption” are liable to be charged for chargeable treatments.
The most significant exemptions (see paras. 3.28 – 3.109 of the Guidance) are as follows:
- Where the overseas visitor has been lawfully resident in the UK for the 12 months immediately before the treatment is provided. An overseas visitor can still benefit from this exemption if, during the 12 month period, they spent up to 182 days outside the UK (but only if they were lawfully entitled to be in the UK for the whole 12 months).
This exemption should not be confused with ordinary residence; it does not mean that someone has to have been in the UK for 12 months before they can be classed as ordinarily resident here. The exemption applies where an individual is not ordinarily resident here but has lived in the UK for at least six of the past 12 months.
- Where the overseas visitor is in the UK for the purpose of engaging in employment in the UK (including self employed work). The individual must actually have work (or have a firm offer if they are here shortly before starting work) and must be here lawfully.
- Students in the UK for the purpose of taking up a full time course (at an approved institution, see para 3.39 of the Guidance for a list) which is of at least six months’ duration or, a course which is substantially funded by the UK Government. If the course is substantially funded by the UK Government the exemption applies even if the course is less than six months.
- Refugees: anyone granted “‘temporary protection”, “asylum” or “humanitarian protection” is exempt.
- Asylum seekers: anyone who has made a formal application with the Home Office to be granted temporary protection, asylum or humanitarian protection which has not yet been determined is exempt from charges.
- Failed asylum seekers: once a claim for asylum/humanitarian protection has been rejected (along with any appeals) the individual becomes liable for charges under the Regulations even if they have been in the UK for more than 12 months. A failed asylum seeker will however be exempt if:
- They are being supported by the UK Border Agency under section 4. Section 4 support will usually be supplied to failed asylum seekers who are engaging with attempts to return them to their country of origin.
- They are being supported by the UK Border Agency under section 95. Section 95 support will usually only be supplied to failed asylum seekers where they have children aged under 18 in the UK.
- The spouse/civil partner and/or dependent children of a refugee, asylum seeker or exempt failed asylum seeker, will also be exempt provided they are lawfully in the UK on a permanent basis with the refugee/asylum seeker/exempt failed asylum seeker while that person is still in the UK.
- Olympic/paralympic games members. “Games family” members will be exempt from charges for treatment the need for which arises during their visit between 9 July 2012 and 12 September 2012.
- Nationals or residents of countries with a reciprocal healthcare agreement with the UK. Hospital treatment for conditions that arise during the person’s visit to the UK (or for conditions which acutely exacerbate during the visit) is exempt from charging. Routine treatment and non-urgent treatment that could wait until the patient returns home is not usually exempt - however routine and non-urgent treatment is exempt in the case of nationals of some countries. See 3.49-3.59 of the Guidance for details.
A full list of the exemptions, along with details of the evidence that a trust should look for to ascertain whether an exemption applied, is set out at p.20-39 of the Guidance. A handy table is provided at para.3.109 and a flow chart on p.42 of the Guidance.
Visitors from European Economic Area (EEA) and Switzerland
Visitors from countries within the EEA (see 7.2 of the Guidance for a list), and Switzerland, who are “insured” by a member state will be entitled to receive, free of charge, all medical treatment which is necessary during their visit to the UK. See paras. 7.12 – 7.17 of the Guidance for full details of what treatment is free of charge to EEA patients.
Whether an individual is “insured” depends on the rules of the member state they are a national of or resident in. However, in all case where someone is “insured” (and so eligible for NHS treatment free of charge) they will hold a European Health Insurance Card (EHIC). Where an individual claims to be entitled to free treatment but does not have an EHIC their entitlement can be proved by other means. See para.7.7 of the Guidance for information on how to deal with such cases. It should be remembered that nationals of EEA states may be entitled to free treatment under other provisions eg, where they are “ordinarily resident” in the UK, in which case the absence of a EHIC would be irrelevant.
Change of status – continuation of treatment
Where a person becomes liable to charges part way through a course of treatment (eg, where an asylum seeker becomes a failed asylum seeker) that course of treatment must continue to be provided free of charge. New courses of treatment, commenced after the change of status, will be chargeable. Determining what constitutes “a course of treatment” is a matter of clinical opinion.
This only applies where the individual was properly assessed as being exempt from charges to begin with. This provision will not apply to prevent charges being imposed where, for example, the trust discovers that fraudulent or misleading information was presented, leading the trust to incorrectly determine that they were exempt.
Withholding treatment only becomes a consideration when an overseas visitor, who is not exempt, requires a treatment which is chargeable. Determining how to proceed (whether to provide the treatment, or to delay, withhold or seek advance payment) depends on whether the treatment is “immediately necessary”, “urgent” or “non-urgent”. Determining which category a particular treatment falls into is a matter of clinical judgment. This is covered in chapter 4 of the Guidance.
Immediately necessary treatment
This is treatment needed to save life, prevent a condition becoming immediately life threatening, or treatment required promptly to prevent permanent serious damage occurring. All maternity services, including routine antenatal treatment, should be considered immediately necessary.
This treatment must never be withheld or delayed by reason of confusion over the patient’s status, or because of the patient’s inability to meet charges.
This is treatment that is not immediately necessary but which nevertheless cannot wait until the patient can be reasonably expected to return home. Trusts are advised to seek payment for this treatment before providing the care; however, this treatment should not be delayed or withheld due to payment issues.
This is routine elective treatment that could wait until the patient can return home. This treatment should not be provided unless the full estimated charge is paid in advance.
Forming a judgment as to when the overseas visitor can be expected to return home for treatment is key to determining whether urgent and non-urgent treatment should be provided to a particular patient despite non-payment. This will involve considering the clinical condition of the patient alongside the options and potential barriers, to them leaving the UK in time to access treatment in their home country. Advice on this issue is provided at 4.14 - 4.19 of the Guidance.
NHS trusts must appreciate that where they supply treatment which is of a chargeable type to a non-exempt overseas visitor charges must be imposed. Where trusts supply “immediately necessary” or “urgent” treatment despite knowing that the patient cannot (or will not) meet the charges, this does not mean that they are supplying the treatment “free of charge”. Although these treatments cannot be withheld by reason of payment issues, charges must still be imposed regardless of the prospects of their recovery.
Only those hospital treatments that are specifically exempt can be provided to a (non-exempt) overseas visitor without a charge being made (eg, care in A&E and compulsory treatment under the Mental Health Act 1983). Trusts have no discretion to waive the imposition of charges. If payment cannot be obtained then the charges have to be written off by the trust.
Reasonable measures should be taken to pursue overseas visitors’ debts. The Department of Health’s guidance urges trusts to employ the services of debt recovery agencies that specialise in overseas debt recovery, except where the patient’s inability to pay is clear, in which case the debt should be written off. Guidance on the process for writing off such debts can be found in the DH finance manual. See para.6.26 of the Guidance for further details, and a link to the finance manual.
NHS bodies are required to identify overseas patient income, and any overseas patient debt written off, in their accounts. The DH Guidance also suggests that trusts keep, separate from the accounts, more detailed records of overseas visitor patients. These records should be kept under regular review by senior managers as the DH may request the information to monitor trends and identify any problems.
Many other situations and issues, not covered in this note, arise in the area of overseas visitor treatment. Other matters dealt with in the Guidance include: repayment of charges to patients where they were inappropriately made, or the service not provided (see 3.25), administration of the European Health Insurance Care scheme (chapter 7) the role of overseas visitors managers and interviewing patients (see chapter 5) and liaison with the UK Border Agency (see 5.37-5.43).
2011 and beyond
The Government intends to conduct a further review of current policy and a consultation is expected in 2012. This will cover, among other things, the case for extending the current charging principles to primary care. There are also plans to amend the immigration rules to prevent overseas visitors who run up significant debts with the NHS from being granted further leave to enter, or remain, in the UK. We will keep readers updated.
This is a complex and sensitive area. The Guidance highlights issues relating to patient confidentiality, the Human Rights Act 1009, the Equality Act 2010 and data protection. Please do not hesitate to contact us to discuss general principles or particular cases.