Charging overseas visitors

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The NHS is a free healthcare system. Whether or not a person is eligible to benefit from this is based upon their residency in the UK.

If a person is not ‘ordinarily resident, they are considered to be an overseas visitor. It should be noted that visitors from overseas who remain in the UK for six months or more will usually pay an immigration health charge or ‘surcharge’. This will entitle them to NHS services on the same basis as a person ordinarily resident in the UK.

To be ordinarily resident, their residence must be ‘lawful, adopted voluntarily, and for settled purposes as part of the regular order of their life for the time being’.

The law was made clearer in 2009 in a case about people whose applications as asylum seekers had been unsuccessful; ‘ …the purpose of the (NHS) is to provide a service for the people of England and that does not include those who ought not to be here’.

One can immediately see how this language may seem uncharitable. At the heart of this distress and difficulty is the tension between a deeply engrained clinical imperative to relieve suffering; whilst at the same time ensuring that our health resources remain financially viable.

The House of Lords examined this tension in a case called N; concerning a man not ordinarily resident in this country who’s HIV had nevertheless been initially treated in England, resulting in excellent symptom control. He was therefore sufficiently well to return to his country of origin. But in that country there was no prospect of continuing his therapy, and untreated he would undoubtedly deteriorate and die.

One of the judges made the point that to extend N’s right to remain in England indefinitely would ‘...have the effect of affording all those (in N’s condition) a right of asylum until the standard of medical facilities available in their home countries had reached that which is available in Europe’.

This would, in turn, result in large numbers of HIV sufferers being given the hope that they could remain in the UK indefinitely. Resulting in the unquantifiable, ‘though doubtless very large, commitment of clinical resources. The European Court of Human Rights endorsed the judicial decision to refuse N asylum on these grounds.

The government’s response to the dilemma of sick people presenting to the NHS who are not ‘ordinarily resident’ was to produce the NHS (Charges for Overseas Visitors) Regulations 2015. Accompanying Guidance was produced, and was brought up to date this year, not least to deal with our new relationship with the rest of Europe.

The Regulations create for English hospitals a duty (this is not a discretionary matter) to recover costs of care in some circumstances; ‘...there is no option, nor is there the authority, to waive the charge on the part of the NHS body’.

There are, however, extensive exceptions. Accident and emergency care; family planning services and treatment for sexually transmitted disease; and treatment of communicable disease, amongst many others. In addition, various categories of overseas visitors are exempt from charges, including refugees and applicants for asylum (awaiting the decision), those detained in prison or by the immigration authorities, and those visitors from countries having reciprocal arrangements with our own.

Alas, this brief description greatly under-represents the complexities of the guidance, set out across 129 pages.

NHS trusts have created Overseas Visitor Manager posts, and the operation of the charging scheme depends in part on the awareness and support of clinical staff for the OV manager.

Ultimately, it is always a clinical decision as to what treatment a patient, ordinarily resident or otherwise, needs. Whether the hospital then withholds or limits treatment will depend on information received from the OV manager, and the patient’s intention to pay.

There are clinical responsibilities set out by the Regulations, which include; taking the final decision as to the degree of urgency of treatment; to confirm if the patient is receiving clinical care that is exempt from charges; to confirm that a patient is a victim of specified types of violence that would exempt them from charges; and to confirm that they are fit to travel home for further treatment.

Some clinicians, despite the government’s attempt to keep separate clinical activities from these charging mechanisms, will feel that implementing these Regulations risks losing sight of the suffering of the patient in front of them. That anxiety is understandable, and not unusual.

If that is the case, please do read section 11 of the Guidance, which is freely available on line; particularly 11.46-11.50. If that does not reassure you, then please discuss the patient’s case with a colleague, or the Clinical Ethics Committee, or the Department of Clinical Law.

Robert Wheeler
Department of clinical law, June 2021