Healthcare Arrangements after Brexit: The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019

Introduction

To make provision for healthcare arrangements between the UK and EU states (including EEA states and Switzerland) after the end of the transition period (31 December 2020), the United Kingdom Parliament has enacted the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 (‘the 2019 Act’). For British citizens, EU citizens, EEA nationals,  Swiss citizens, and some Third Country Nationals not otherwise covered by the UK-EU Withdrawal Agreement (or equivalent for EEA states and for Switzerland) the 2019 Act provides a basis in UK law for the UK to meet the healthcare costs of British citizens (and others) in EU states, EEA states, or Switzerland. It also enables domestic provision to be made to give effect to international agreements for healthcare.

The 2019 Act is an attempt to provide a domestic foundation for the co-ordination of healthcare arrangements as between the UK and other states in the European region, when people move from one country or another to live and work (or to receive pre-arranged treatment).

Presently provision is made for such co-ordination by EU Regulation 883/2004 (and other EU instruments).  They provide for public healthcare to be free at point of use in the host state for those who benefit and for the bill for the cost to be sent to the home state.  These instruments have been retained in UK law under the European Union (Withdrawal) Act 2018, see my posts Pensions, Healthcare and Social Security for EU Citizens after Brexit: the forgotten aspect of Free Movement, The Withdrawal Agreement: Social Security, Healthcare and Pensions after BrexitNo Deal or Hard Brexit: Social Security, Healthcare and Pensions after Brexit, and Social Security, Healthcare and Pensions for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill.

However, after the end of the transition period (31 December 2020), only those who fall with the personal and material scope of the UK-EU Withdrawal Agreement (or equivalent for EEA states and for Switzerland) will continue to benefit from such protection.

Unless a new agreement is reached between the UK and the EU  as regards the co-ordination of healthcare arrangements, there will be no properly co-ordinated approach to the payments of healthcare costs for those who from 2021 onwards move for work or to reside:  that is for the British banker who moves to Frankfurt, the British self-employed journalist who moves to Paris, and the British politician who retires to Provence;  as well as the German banker, self-employed Italian journalist, and French pensioner who move to London.

The purpose of this post is set out the provisions of the 2019 Act (not the regulations made under it from time to time) and to show how they work.

The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019

The 2019 Act came into force on 26 March 2019.

Under the 2019 Act (section 3), ‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care. Thus, in the 2019 Act ‘healthcare’ is defined more broadly than in the Health and Social Care Act 2012.

Under the 2019 Act (section 3) ‘Healthcare agreement’ means an agreement made between the UK government and either the government of an EEA state (including an EU state) or Switzerland, or an international organisation, concerning either or both of the following:

  • Healthcare provided in an EU state, an EEA state or Switzerland, payments in respect of which may be made by the UK government
  • Healthcare provided in the UK, payments in respect of which may be made by an EU state, an EEA state or Switzerland

An ‘international organisation’ is an organisation of which two or more sovereign powers (or the governments of such powers) are members.

The definition of a healthcare agreement is broad enough to encompass an agreement with the EU, EFTA, or on a multilateral or bilateral basis with individual states.

The Power to make Healthcare Payments

The 2019 Act (section 1) provides a power for the Secretary of State to make payments, and arrange for payments to be made, in respect of the cost of healthcare provided in an EU state, an EEA state or Switzerland. This power may be exercised whether or not the UK concludes healthcare agreements with the EU or with individual states. If no such agreements are made, payments may nonetheless be made. The power is not limited only to making payments in respect of British citizens.

The Power to make Regulations

 Under the 2019 Act (section 2) the Secretary of State may by regulations make provision:

  • in relation to the exercise of the power to make payments (see above)
  • for and in connection with the provision of healthcare in an EU state, an EEA state or Switzerland; or
  • to give effect to a healthcare agreement

Thus, not only may regulations provide the operational machinery for making payments, they may also do so as regards the provision or healthcare. In addition, they may be used to give effect to any healthcare agreements reached with the EU, EFTA, or individual states.

Except in respect of giving effect to a healthcare agreement, no regulations may be made after the end of the period of five years beginning with exit day (31 January 2020). Thus, as regards regulations in respect of payment-making and  healthcare provision, there is a sunset clause.

The material scope of what such regulations is confined. They may only do one or more of the following things:

  • specify or describe levels of payments and how they are to be calculated
  • specify or describe persons in respect of whom payments and provision may be made
  • specify or describe the types of healthcare in respect of which payments and provision may be made
  • make provision about set-off arrangements between countries or territories
  • make provision about reimbursement levels (which may include caps)
  • specify or describe evidential or administrative requirements or processes
  • make provision about appeals
  • confer functions (including conferring a discretion), and
  • provide for the delegation of functions.

However, regulations may not confer functions on, or provide for the delegation of functions to a person who is not a public authority. In this context ‘public authority’ means a person who exercises functions of a public nature but does not include a person who does so only because of exercising functions on behalf of another.

A power to make regulations under the 2019 Act is exercisable by statutory instrument.

Regulations and directions (see below) under the 2019 Act may:

  • make different provision for different purposes
  • be made for all cases to which the power in question applies, for those cases subject to specified exceptions, or for any specified cases or descriptions of case
  • make any provision either unconditionally or subject to specified conditions
  • provide for a person to exercise a discretion in dealing with any matter, and
  • include consequential, supplementary, incidental, transitional, transitory or saving provision

Regulations under the 2019 may amend, repeal, or revoke retained EU law  (now treated  as UK law notwithstanding Brexit) that is not primary legislation (an Act of the UK Parliament, an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales, or Northern Ireland legislation).  Thus, it seems that regulations may be used to amend the EU Co-ordinating Regulations (e.g. Regulation 883/2004) as retained in EU law. For further information on the status of retained EU law, see section 7 of the European Union (Withdrawal) Act 2018.

A statutory instrument which contains (whether alone or with other provision) regulations about data processing under the Act (see below) may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House. This is the draft affirmative procedure.

Any other statutory instrument which contains regulations under the 2019 Act is subject to annulment in pursuance of a resolution of either House of Parliament. This is the negative resolution procedure.

Before making regulations that contain provision that is within the legislative competence of a devolved legislature (in Scotland, Wales, or Northern Ireland), the Secretary of State must consult with the relevant devolved authority on that provision, see section 5 of the 2019 Act.

The Power to give Directions 

The Secretary of State may give directions to a person about the exercise of any functions exercisable by the person by virtue of regulations so made. She may also vary or revoke such directions. As to the scope of such directions, see above.

Data Processing

 Under the 2019 Act (section 4), an authorised person may process personal data held by the person in connection with any of the person’s functions where that person considers it necessary for the purposes of implementing, operating or facilitating the doing of anything under or by virtue of the 2019 Act. This provides the authorisation for processing personal data to make payments and provide healthcare.

An ‘authorised person’ is:

  • the Secretary of State, the Treasury, the Commissioners for Her Majesty’s Revenue and Customs, the Scottish Ministers, the Welsh Ministers and a Northern Ireland department
  • an NHS body (as defined in English and Welsh NHS legislation)
  • a health service body listed Scottish and Northern Irish legislation
  • a provider of healthcare (not otherwise mentioned above)
  • any other person authorised, or falling within a description of persons authorised, by regulations made by the Secretary of State

‘Personal data’ has the same meaning as in the Data Protection Act 2018 (section 3).

This processing of personal data does not breach:

  • any obligation of confidence owed by the person processing the personal data, or
  • any other restriction on the processing of personal data, however imposed.

But nothing authorises the processing of personal data which:

  • contravenes data protection legislation (see Data Protection Act 2018, section 3), or
  • is prohibited by any of the specified parts of the Investigatory Powers Act 2016 (or the Regulation of Investigatory Powers Act 2000 until its repeal)

Report on Payments Made

 The Secretary of State must, in relation to each relevant period (beginning with the day on which the Act is passed (26 March 2019) and ending with the end of the first financial year (the period of 12 months beginning with 1 April), to begin after exit day (31 January 2020),  and in each subsequent period of 12 months:

  • prepare a report giving details of payments made, and
  • lay that report before Parliament as soon as practicable after the end of the period

 

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