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’), see my blog post Healthcare Arrangements after Brexit: The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. But for people who are not covered by the scope of the EU-UK Withdrawal Agreement, what happens if provision for cross-border healthcare arrangements are not covered by the scope of any new treaty between the EU and the UK? What happens after the end of the transition period (31 December 2020)? It looks as if any cross-border healthcare arrangements that are agreed will be a very poor substitute for that which British citizens currently benefit from under EU law. The poverty of the UK’s ambition in this area is clear and deserves full attention.

How EU cross-border healthcare works

 Presently provision is made for healthcare co-ordination by EU Regulation 883/2004 (and other EU instruments).  Those regulations 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 of such healthcare 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 Brexit, No 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. But they only benefit those who are protected by the Withdrawal Agreement, not those who move for the first time after the end of the transition period (31 December 2020).

Among other things, EU cross-border healthcare arrangements benefit the following classes of British citizens in EU states:

• Pensioners: Public healthcare for UK state pensioners living in countries such as Spain, France and Cyprus
• Visitors and Students (using European Health Insurance Cards (EHIC)): Emergency and needs-arising healthcare for visitors and students visiting or staying in an EU state
• Workers: Healthcare for employees of UK businesses working in the EU as posted workers or as frontier workers
• Those receiving Planned Treatment: Where funding is provided for British citizens to travel to receive planned treatment in EU states (for example for a German banker returning home for a procedure unavailable in the UK or a self-employed journalist returning to Italy to give birth)

 The EU reciprocal healthcare arrangements operate so that the UK reimburses EU states for the cost of healthcare they provide for British citizens who are fall within the scope of those Regulations (Pensioners, Visitors, etc. see above).

In addition, the EU has the Cross-Border Healthcare Directive, 2011/24/EU, which, among other things, allows British citizens to be reimbursed for particular healthcare purchased in an EU state, prescriptions fulfilled in those countries, and which makes provision for information on services. In the UK this directive is given effect by domestic regulations, see for example the National Health Service (Cross-Border Healthcare) Regulations 2013 for England and Wales.

What happens after the end of the Brexit transition period (31 December 2020)?

As noted above, the UK has enacted the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 (‘the 2019 Act’), see my blog post Healthcare Arrangements after Brexit: The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019.  However, that Act can only give domestic effect to any new cross-border arrangements after the end of the transition period (31 December 2020) if such arrangements are agreed by way of a new EU-UK treaty to cover reciprocal healthcare. The UK only seeks to agree very limited arrangements for cross-border healthcare. The UK’s draft free trade agreement contains provisions for the health of plants (being traded) but not is seems for the health of humans. Further, the UK draft agreement on social security co-ordination only contains cross-border healthcare provision for those who are staying temporarily (tourists, frontier workers, workers posted for up to 24 months). No provision for cross-border healthcare is made for UK pensioners moving to reside in the EU, for those planning to travel for planned treatment, or for matters covered by the Cross-Border Healthcare Directive. It is not clear that the EU will agree to the UK’s draft but even if it does, British citizens will be worse off as compared to the situation under EU law.

If no treaty is made it will prejudice all those who would have fallen with the EU cross-border healthcare regime had the UK remained in the EU (see above). In addition, for UK tourists on holiday there will be no EHIC card scheme to give access to free emergency healthcare. There are over 27 million UK-issued EHIC Cards, so the loss of such a scheme will be keenly felt. Travel insurance would not be a substitute. Such insurance is often complementary to being able to access public healthcare.

Even if the UK draft social security treaty is agreed British citizens with disabilities or long-term health care conditions seeking to go on holiday may struggle to secure travel insurance. They would need to carry a document conferring prior authorisation to receive kidney dialysis, oxygen therapy, special asthma treatment, echocardiography in case of chronic autoimmune diseases, or chemotherapy.

Moreover, whether or not a treaty is agreed, no new UK pensioners will be able to move and settle in Spain, etc. (with a right to receive their UK state pension) and have a right to free healthcare. Finally, those British citizens who cannot get the treatment they need on the NHS will not be able to make arrangements to get the NHS to send them to an EU state to receive that treatment where it is available.

In 2016/2017 the UK spent £630 million on healthcare for British citizens in the EU, EEA, and Switzerland. Most of that was spend on pensioners and their dependents and would have cost more (up to £1 billion) to be provided on the NHS in the UK. By contrast the UK received only £66 million for providing NHS care to those EU citizens, EEA nationals, and Swiss citizens in the UK in the same period.

The UK approach, shorn at it is of any insight as to the obvious benefit to British citizens of remaining in EU cross-border healthcare arrangements or similar, seems to be to offer a bare bones approach stripping out rights that benefit British citizens. Further, what is on offer is merely on a par (or possibly worse) that what is on offer in the bi-lateral agreements that the UK has with non-EU states such as Bosnia, Serbia, and Kosovo. Those agreements are a poor alternative. They do not cover those British citizens (like pensioners) who have permanently moved abroad. Nor can healthcare costs be reclaimed under these agreements. British citizens will lose out if the UK fails to agree a new treaty to cover cross-border healthcare arrangements that covers the same areas currently provided under EU law.