The Draft Agreement on the withdrawal of the United Kingdom – what does it mean for healthcare?
A draft agreement on the withdrawal of the UK from the EU has been reached between representatives of the UK and EU. Recent summaries have focused on the transition period, an Irish border and fishing, but, what does the draft agreement mean for health law and policy in the UK?
Coordination of social security systems
EU Regulations on social security coordination will apply across the UK at the end of the transition period, which is the time period after the UK officially leaves the EU until 31 December 2020, or a later date if one is agreed under the withdrawal agreement. This means that citizens who have moved between the UK and EU before the end of the transition period can access healthcare cover. This will also apply to a UK national who has paid social security contributions in another EU country.
This means that any citizen in the UK or a national from the European Economic Area will be eligible to receive urgent or immediate medical treatment, at a reduced cost or, in some cases, free. This includes the European Healthcare Insurance Card, also known as the EHIC, which provides access to state-provided healthcare for short term visitors.
Individuals living in a cross border situation, for instance a UK national living in an EU country for the duration of their study, will have their rights protected at the end of the implementation period. If they are entitled to a UK EHIC, they will benefit from this as long as they continue to reside in the cross-border country.
Individuals visiting the EU or UK for planned medical treatment will also be protected, if authorisation was requested before the end of the implementation period. So, patients will be able to complete a course of treatment in the EU or UK.
Coordination of reciprocal healthcare and the EHIC will continue during the transition period. So, where any EU country is responsible for the healthcare of an individual, that individual will be entitled to reciprocal healthcare in their competent country.
Rights of Individuals and common travel area
During the transition period, British and Irish citizens will continue to be able to reside, work, study and access social security and health services in both Britain and Ireland. The common travel area rules will support this into the future, though it isn’t clear how resources will be transferred between the systems as this is currently covered by EU social security law and its administrative structures.
Protocol on Gibraltar
Efforts to address the public health risks of smoking will continue to exist.
Free movement of goods
A product already on the market will continue to be available in the UK market and the EU Single Market during the transition period. This will apply to health products, such as pharmaceuticals and medical devices, as well as consumer products, which include cosmetics and ‘parapharmaceuticals’. If the ‘backstop’ in the Northern Ireland protocol comes into effect, and the UK keeps a single regulatory market for products encompassing Northern Ireland, it may continue. There are complexities around where bodies certifying marketability in the EU are located.
What if there is a no deal?
A no deal Brexit would fail to offer the current protection of existing rights. There is no framework for reciprocal healthcare arrangements, which will have no rights in place or cross-border care. Supply chains on which the NHS relies would be drastically disrupted, although the UK government is making contingency plans. These are not transparent, so it is difficult to say whether they would be effective. Although there is the potential for standards of public health to improve in the longer term, the government would be able to remove the current protections available to UK citizens.
The 585-page draft document is not designed for a layperson to read or follow, which reduces any immediate sense of the government’s transparency and accountability.
The information provided by the political statement on the EU-UK future relationship is brief with regard to the future of healthcare. The agreement fails to address specificities of medicines regulation, with the European Federation of Pharmaceutical Industries and Associations (EFPIA) expressing concern that the withdrawal agreement “fails to specifically address the health issues important to their patients, their safety and the wider public health.”
The Chair of the House of Commons Health and Social Care select committee, Sarah Wollaston, has expressed similar concerns, writing “shockingly, absolutely nothing in the future framework document about health, care, public health or research. Yet this is an area which profoundly touches the lives of every citizen in the UK and across our partner EU nations.” Similarly, Tamara Hervey, Jean Monnet Professor of European Union Law at the University of Sheffield, writes that the withdrawal agreement is bad for health and a no deal is worse, “there is no healthy Brexit only varying degrees of harm.”
But, the deal does offer most EU citizens in the UK protection. This means the NHS and social care workforce in the UK can continue to attract EEA nationals until the end of the transition period, which is significant given the health and social care sector’s reliance on EEA nationals. The NHS and social care workforce from EEA and their families already in the UK before the end of the transition period can remain and will be eligible to acquire permanent residence in the UK. EEA nationals who have not resided in the UK for 5 years at the end of the transition period can carry on accruing that entitlement afterwards.
The question is whether EEA nationals will want to acquire permanent residence in the UK. 63,000 NHS staff are EU nationals, and 12.7% of the NHS staff population are not British. However, the hostility produced out of the Brexit campaign remains, consequently causing uncertainty for these individuals, their families, and the NHS at large.