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Introduction

Access to NHS hospital treatment is based on ordinary residence in the United Kingdom. Anyone who is not ordinarily resident is subject to the National Health Service (Charges to Overseas Visitors) Regulations 1989. These regulations place a responsibility on NHS trusts to establish whether a person is ordinarily resident; or exempt from charges under one of a number of exemption categories; or liable for charges. They also provide that certain treatments are exempt from charges in their own right, irrespective of the patient's status. These include treatment given in accident and emergency departments; treatment for certain specified communicable diseases (excluding HIV/AIDS treatment where only the initial diagnostic testing and associated counselling are without charge) and compulsory psychiatric treatment.

The Department of Health has been reviewing the National Health Service (Charges to Overseas Visitors) Regulations and this review highlighted loopholes that are open to abuse. A public consultation put forward the Department's proposals to close these loopholes and modernise the system, so that it works in the way it was intended to, and is easier for NHS trusts to operate. This document summarises the outcome of that consultation exercise.

142 responses were received. 17 of these were not responses to the consultation document but comments about general NHS matters. Although not included in the analysis, their contents have been noted. Of the remaining 125, 37 (30%) of respondents fully answered the consultation questions with the other 88 (70%) of respondents addressing the issues relevant to themselves or their organisation. 72 (58%) of respondents agreed there was a need to amend the regulations to address the abuse of free NHS hospital treatment by those people who are not entitled to it and supported the proposals as put forward. 5 (4%) respondents indicated they did not support the proposals.

37 (30%) of respondents fully answered the consultation questions with the other 88 (70%) of respondents addressing the issues relevant to themselves or their organisation. 72 (58%) of respondents agreed there was a need to amend the regulations to address the abuse of free NHS hospital treatment by those people who are not entitled to it and supported the proposals as put forward. 5 (4%) respondents indicated they did not support the proposals.

The consultation

The consultation ran for 14 weeks from 29 July to 31 October 2003. Its proposals were aimed at stopping the following abuses:

• free hospital care for dependents of someone who is exempt from charges who visit the UK briefly just to obtain free hospital care, including giving birth;
• free hospital care for those whose employment is based outside the UK but who fall ill or are injured during a business trip to the UK - or for any dependents who have travelled with them;
• free hospital care for someone who has come to the UK primarily to receive private medical treatment but stays for more than 12 months;
• free hospital care for failed asylum seekers (ie those whose applications and any subsequent appeals have been finally rejected) and others with no legal right to be in the country.

The consultation also proposed two new exemptions to regularise the position of overseas students and British state pensioners who regularly spend part of the year living in another EEA country.

The responses to the consultation

142 replies were received in total. However 17 of these were e-mails the contents of which were not responses to the consultation document but comments about general NHS matters. Consequently these could not be included in this analysis, although their contents have been noted.

The remaining 125 replies which have been analysed included:

• Charity 10
• Confidential 2
• Government Department 3
• GP 5
• GP admin 2
• GP body 3
• Health organisation 11
• Legal body 2
• Local authority 2
• Members of the public 27
• NHS trusts 35
• Organisation 3
• Primary care trusts 13
• Strategic health authority 1
• Universities/student body 6

37 (30%) of respondents fully answered the consultation questions with the other 88 (70%) of respondents choosing only to address the issues relevant to themselves or their organisation. 72 (58%) of respondents agreed there was a need to amend the regulations to address the abuse of free NHS hospital treatment by those people who are not entitled to it and supported the proposals as put forward. Only 5 (4%) respondents indicated they did not support the proposals.

It was clear that there has been some misunderstanding of our proposals and respondents have raised concerns resulting from this. These included public health issues; that trusts will be bogged down in the administration of these regulations thus diverting them away from patient care; that trust staff will become immigration officers and people will have treatment withdrawn or withheld, breaching their Human Rights. This is simply not the case. Trusts already have staff in place - 'Overseas Patient Managers' - to establish a patient's eligibility to receive free NHS hospital treatment. Other staff will not be any more involved in detailed investigations of patients' eligibility than they are now. In order to avoid discrimination all patients will continue to be asked exactly the same baseline question when establishing entitlement. Treatment which is immediately necessary will never be withheld but that is not to say that such treatment will be without charge, although treatment given in an Accident and Emergency Department will continue to be free. On public health grounds treatment of communicable diseases such as TB is and will remain free of charge to everyone.

The Department has taken note of all the concerns raised and is writing to the relevant respondents to alleviate their concerns. We will also be sending a copy of this Summary of Outcome to everyone who responded to the consultation exercise.

Department of Health decisions

Department of Health Ministers have decided that, as the overall response to the consultation was supportive of its proposals, amendments to the NHS (Charges to Overseas Visitors) Regulations 1989, as set out in the consultation document and taking into consideration the concerns raised by respondents, will be put before Parliament.

They will ensure they all the concerns raised are taken into account when drafting the protocols and comprehensive guidance, under which these amended regulations will be applied. Key stakeholders, such as the Commission for Racial Equality (CRE), will be given the opportunity to comment on the guidance.

Next steps

Work will now begin on drafting the amending regulations, which will be laid before Parliament as soon as possible, ideally so as to come into effect from 1 April 2004. In conjunction with this, the accompanying protocols and guidance will also be prepared.

• Consultation document and summary of outcome