Consultation outcome

Reciprocal healthcare policy framework for the funding of healthcare abroad in exceptional circumstances

Updated 18 August 2023

This was published under the 2022 to 2024 Sunak Conservative government

Introduction

The UK has several international healthcare arrangements with partner countries, often referred to as reciprocal healthcare arrangements. These arrangements support UK residents when they visit partner countries by enabling them to access public healthcare. An arrangement can be a treaty (legally binding agreement) or a non-legally binding commitment – for example, in a Memorandum of Understanding. Memoranda of Understanding are used to agree commitments with territories that cannot sign treaties, such as Crown Dependencies.

The detail of the coverage in place depends on the terms of individual arrangements, but generally they all offer free (or low-cost) emergency and necessary healthcare for those on short-term stays.

The UK Government has committed to strengthening its healthcare arrangements with countries and territories across the globe, deepening international healthcare co-operation and benefitting UK residents when travelling abroad.

Aim of this consultation

The aim of this consultation is to seek views on the Department of Health and Social Care’s (DHSC) reciprocal healthcare policy framework for the funding of healthcare abroad in exceptional circumstances. A policy framework will facilitate fair and transparent decisions on discretionary funding requests.

We are consulting now as the Health and Care Act 2022 has been passed, which will change our primary legislation, and DHSC will shortly bring forward regulations that will give the Secretary of State for Health and Social Care new powers. We would like views on:

• our proposed approach to decision-making on exceptional circumstances under reciprocal healthcare arrangements
• whether there is anything missing from our proposed framework

Purpose of the exceptional circumstances policy framework

This framework sets out:

• the UK Government’s policy on the funding of healthcare abroad under international healthcare arrangements
• how these statutory requirements are expected to be applied
• how the Secretary of State will exercise discretion in taking decisions on the funding of healthcare abroad in exceptional circumstances

The Healthcare (International Arrangements) (EU Exit) Regulations 2023 (the HIA regulations) will confer powers on the Secretary of State to fund healthcare abroad. The powers could be used to pay for treatment that is covered by an arrangement with a partner country. These healthcare entitlements are set out in the ‘Funding healthcare abroad under international healthcare arrangements’ section of this framework below.

The powers could also be used to make discretionary payments for healthcare in a partner country outside of an arrangement if the Secretary of State considers the payment to be justified by exceptional circumstances. The consultation proposes that the Secretary of State will consider the factors set out in the ‘Funding healthcare abroad in exceptional circumstances’ section of this framework when making discretionary funding decisions under the HIA regulations.

The purpose of this framework is to:

• ensure discretionary funding powers are implemented consistently and fairly for patients across the UK
• support transparency and accountability in the use of public funding for public services

The framework is flexible and every referral for funding will be considered on a case-by-case basis.

The ‘Process for a discretionary payment’ section below sets out the procedures for determining discretionary funding decisions as required by the HIA regulations.

The framework has been developed in consultation with the devolved administrations and the NHS.

What is out of scope of this framework

NHS England, the devolved administrations of Scotland, Wales and Northern Ireland, and their local health boards have additional powers outside of the HIA regulations, which may be used to support people to receive healthcare abroad under certain circumstances that are outside of reciprocal healthcare. You can read further information on NHS commissioning for England, NHS commissioning for National Services Scotland, NHS commissioning for Wales and health and social care commissioning for Northern Ireland. Each local health board in Wales has its own commissioning policy and can be contacted for further information.

Consular assistance provided by the Foreign, Commonwealth and Development Office (FCDO) is also outside the scope of this framework. Read more about the support FCDO can provide to British nationals if they get into difficulty while living or travelling abroad. DHSC will provide support if a specific reciprocal healthcare issue arises, and processes are in place for FCDO to refer cases to DHSC.

Funding healthcare abroad under international healthcare arrangements

Background on international healthcare arrangements

International healthcare arrangements vary in terms of their scope and coverage. The different kinds of healthcare entitlements that are covered are set out below. It is proposed that the Secretary of State can exercise discretion under any element of a reciprocal healthcare arrangement.

Generally, the arrangements offer state-provided healthcare on the same basis as it is provided to residents of that country. The types of treatment available and the basis on which treatment is provided may therefore differ from country to country, and the UK Government always recommends that individuals research country-specific details before travelling. You can read further advice from FCDO about travelling abroad and accessing healthcare in the country they are visiting and living abroad, health and benefits in their living in country guides.

You can also read further information on the UK’s reciprocal healthcare arrangements with non-EU countries and further information on the healthcare arrangements covering the UK and countries in the European Economic Area (EEA) and Switzerland.

Entitlements under international healthcare arrangements

The UK currently has international healthcare arrangements with the European Union (EU) and several other countries. Within the healthcare arrangements, there are variations in the level of free treatment afforded to visitors. Generally, only immediate emergency and necessary healthcare is provided free of charge.

Emergency and necessary healthcare

Necessary healthcare means healthcare that cannot reasonably wait until the person comes back to the UK. Whether treatment is necessary is decided by the healthcare provider in the country the person is visiting.

Necessary healthcare

Necessary healthcare can include:

• emergency treatment and visits to accident and emergency services
• treatment for a long-term or pre-existing medical condition
• routine medical care for pre-existing conditions that need monitoring
• routine maternity care, as long as the individual has not travelled abroad to give birth
• under some arrangements, pre-arranged treatments (such as for oxygen therapy, chemotherapy or dialysis)

International healthcare arrangements support people in accessing medically necessary state-provided healthcare during a temporary stay in a partner country. It is only valid if a person has not travelled to that country specifically for the purposes of receiving healthcare. Proof of eligibility under the specific arrangement is necessary, and for many countries – but not all – this will now be the Global Health Insurance Card (GHIC).

Not all state healthcare is free and there may be costs for services that would be free on the NHS. Our current arrangements do not cover:

• cruise travel
• private medical care
• costs such as mountain rescue
• the cost of returning to the UK (repatriation)

It is for this reason that the UK Government always recommends people take out appropriate travel insurance.

Wider social security arrangements

In addition, international healthcare arrangements can form part of wider social security co-ordination.

Social security co-ordination arrangements co-ordinate access to social security and healthcare protection for individuals visiting, working and living in a partner country. These arrangements ensure that individuals will be able to have access to a range of social security benefits, including reciprocal healthcare cover. For example, they can:

• ensure an individual is only subject to one country’s social security legislation at any one time
• determine where contributions are due
• set out which country is responsible for the payment of certain types of benefit including the State Pension

For healthcare, under these arrangements, in addition to necessary healthcare, there are provisions to facilitate healthcare for certain workers and long-term migrants, and offer rights to planned treatment abroad.

Arrangements currently in force include the Social Security Co-ordination Protocol to the UK-EU Trade and Co-operation Agreement and the UK-EU Withdrawal Agreement, the UK-Switzerland Citizens’ Rights Agreement and the UK-Switzerland Social Security Co-ordination, and the UK-EEA EFTA Separation Agreement.

Pensioner and worker healthcare

Under social security co-ordination arrangements, those who are entitled to UK-funded healthcare but who retire, are posted to work, undertake frontier work or export certain benefits to a partner country can continue to receive comprehensive healthcare cover paid for by the UK. Arrangements also offer coverage for dependent family members.

Generally, someone may be UK insured if they pay or have paid social security contributions in the UK.

These arrangements cover healthcare costs on the same basis as a local resident (for example, a UK-insured pensioner may be required to pay any co-payments that a local resident in that member state would pay).

Planned healthcare

Finally, under our EU and Switzerland arrangements, there are specific provisions for pre-arranged planned treatment. This is often referred to as the ‘S2’ route. In some cases, you may be able to access treatment in Norway, Iceland and Liechtenstein.

Where such arrangements are in place, they create an entitlement to state funding for planned healthcare treatment in another country, provided specific criteria are met. This means that an individual can travel to another country with the purpose of receiving treatment in a state-funded hospital and their treatment will be funded by DHSC.

Planned healthcare abroad needs to be pre-authorised by application to the relevant NHS authorities in the UK.

Qualifying criteria

To qualify for state-funded planned treatment abroad, all of the following criteria must be met:

• the applicant is ordinarily resident in the UK and entitled to treatment on the NHS
• the requested treatment would routinely be provided on the NHS to an individual in the circumstances
• the applicant has provided written evidence from a clinician that they have had a full clinical assessment in either the UK, any EU country or Switzerland, unless they are in scope of the UK-EEA EFTA Separation Agreement where they may access treatment in Norway, Iceland and Lichtenstein. The clinician’s statement must clearly state why the treatment is needed in the circumstances, and what the clinician considers to be a medically justifiable time period within which the applicant should be treated in the circumstances. The clinician should support this statement by giving objective reasons
• the requested treatment is being provided under the treating country’s state healthcare scheme
• taking into consideration the information provided by the clinician, the NHS has determined that the same or equivalent treatment cannot be provided on the NHS within a time period that is medically justifiable
• the requested treatment is not experimental or part of a clinical trial
• the requested treatment is not emergency treatment

In some cases, a person can be resident in an EU country, EEA country or Switzerland but the UK Government remains responsible for their healthcare costs – for example, pensioners or temporary workers. In this case, the person can seek planned treatment abroad and must request authorisation from their place of residence, which will forward the decision to the UK.

Planned treatment S2 applications relating to maternity are processed differently. Read more information about giving birth outside the UK.

Funding healthcare abroad in exceptional circumstances

Legal basis

The HIA regulations will enable the Secretary of State to make discretionary payments for healthcare treatment abroad where the criteria in a reciprocal healthcare arrangement are not met.

Payments can only be made if both of the following conditions are met:

• the healthcare treatment is in a country with which we have an international healthcare arrangement
• the Secretary of State considers exceptional circumstances justify the payment

General principles

When making discretionary funding decisions under the HIA regulations, the Secretary of State will be mindful of the need to plan, fund and regulate healthcare provision so that it can meet the needs of the wider UK population in an effective, efficient and equitable way.

Funding for treatment abroad is a narrow exception to the general rule that residents of the UK who are entitled to free NHS healthcare should receive treatment in the UK. As such, discretion to fund outside of a healthcare arrangement will be used sparingly and only where there are exceptional circumstances that justify the payment.

Similarly, if the UK is responsible for the cost of your healthcare and you live abroad, the principle is that you should ordinarily access healthcare in your country of residence.

Factors to be taken into consideration

In this section, we outline the factors that we propose the Secretary of State will take into account when deciding whether to exercise discretion to fund treatment outside of healthcare arrangements. The Secretary of State would retain the right to exercise their discretion, with all relevant facts considered on a case-by-case basis.

1. Does the healthcare treatment fall narrowly outside the scope of an arrangement?

The discretionary power can only be used to fund treatment in countries with which we have agreed healthcare arrangements. This proposed criterion is being put in place to ensure the government can fund treatment where the criteria in the healthcare arrangement is missed by a small margin.

In determining whether exceptional circumstances justify payment, we propose the Secretary of State will therefore assess whether it is objectively reasonable to expect the treatment to be covered under the arrangement, or if the treatment is closely related to treatment that would be covered by the UK’s existing arrangements with that partner country.

It is proposed that the Secretary of State will look at the criteria in the relevant healthcare arrangement and take into account the following factors:

• whether the treatment is available under the treating country’s state healthcare scheme. Private treatment is not covered by international healthcare arrangements and is unlikely to be funded under the HIA regulations
• whether the treatment is routinely commissioned by the NHS. Experimental treatments and drug trials are not covered by international healthcare arrangements and are unlikely to be funded under the HIA regulations
• whether the applicant has complied with UK Government advice and legal requirements. The UK Government is clear that people should check local procedural requirements before travelling or moving to a different country, including, for example, on how to register for local healthcare. Discretionary funding will not usually be considered in cases where individuals have acted contrary to UK or partner country advice

• whether it is objectively reasonable to expect the individual concerned to be covered under the arrangement

• whether the funding is for a defined course of treatment. The Secretary of State will not normally approve discretionary funding for continuous, long-term treatment abroad. Planned treatment is usually approved for a specific, limited period appropriate for that course of treatment

2. Would refusal to fund healthcare treatment result in unjustifiably harsh consequences?

To ensure the equitable use of healthcare funding, the Secretary of State will normally require evidence that failure to provide discretionary funding would result in unjustifiably harsh consequences for the individual, such that refusal of the funding would not be proportionate.

Unjustifiably harsh consequences could mean a significant risk to the physical and mental health of an individual that can only be mitigated by funding the treatment. The Secretary of State will take into account the vulnerability of the individual and any clinical view of the benefit to health outcomes.

For planned treatment abroad in exceptional circumstances, the Secretary of State will also consider whether there are any compelling compassionate grounds, such as an emergency or unexpected event, which would lead to unjustifiably harsh consequences for the individual or their family if treatment were not funded. For example, the Secretary of State may fund healthcare in a partner country outside of an arrangement so that an individual can be nearer to family and social support during treatment and aftercare where there are compassionate reasons to do so and supporting clinical advice.

Unjustifiably harsh consequences could also be caused by a crisis or disaster abroad that could not have been anticipated – for example, a public health emergency, natural disaster, or national or local unrest.

Process for a discretionary payment

The Secretary of State will have a duty under the HIA regulations to establish and publish procedures for the determination of applications and claims for funding. The following procedure is proposed.

Referral procedures

NHS England, local health boards in Scotland and Wales, the Department of Health in Northern Ireland, and the NHS Business Services Authority can refer any application or claim in respect of healthcare abroad to the Secretary of State to consider funding using their discretionary powers. Individuals cannot apply directly to the Secretary of State for consideration.

Where a referral is made, the Secretary of State can request any further information they reasonably require to consider that application or claim.

Decisions by the Secretary of State

The Secretary of State will inform the applicant (via the referring body) in writing of the discretionary decision. Where the decision is made not to approve funding, the Secretary of State will set out:

• the information considered
• the reasons for the decision
• the steps an applicant can take if they disagree with the decision and wish to request a review

Any conditions of funding will be clearly set out in writing to the individual, with information and guidance on arrangements going forward and signposting to further support where relevant.

Review

If a request is denied, the applicant can request a review of the case by DHSC. The applicant will be informed in writing of the review process.

Monitoring of this framework

DHSC is responsible for carrying out thorough policy and case reviews, and ensuring that all relevant learning is captured and implemented effectively. DHSC will periodically review this policy framework as part of this evaluation process.

How to respond

You can respond to this consultation via the online survey.

The consultation is open for 8 weeks. The deadline for responding is 11:45pm on 16 June 2023.

Consultation questions

Question

Do you think that the principles in this policy framework are sufficient for the Secretary of State to make decisions on discretionary funding?

• yes
• no
• don’t know

Please explain your answer (optional)

Question

Are there any other factors that are not listed in the framework which the Secretary of State should consider when making decisions on discretionary funding?

• yes
• no
• don’t know

Please explain your answer (optional)

Question

Do you have any further views on the framework that you would like to share? (optional)

What happens next

The consultation will close at 11:45pm on 16 June 2023. Responses received on or before this date will be carefully considered.

A response to the consultation will be published in due course following the closure of this consultation.

Privacy notice

Consult the Joint privacy notice for the implementation of reciprocal healthcare arrangements for information on how we collect and use personal information about you, in accordance with data protection law, including the UK General Data Protection Regulation 2016/679 (‘the UK GDPR’) and the Data Protection Act 2018.