Healthcare (European Economic Area and Switzerland Arrangements) Act 2019

Commentary on provisions of Bill

Section 1: Power to make healthcare payments

25. Section 1 provides the Secretary of State with a power to make payments, and arrange for payments to be made, to fund healthcare in an EEA state or Switzerland.
26. Prior to this Act there were limited domestic powers in relation to funding healthcare abroad. The existing reciprocal healthcare arrangements with the EU are based on EU law.
27. In line with the Public Accounts Committee Concordat, this section provides statutory authorisation for expenditure in relation to funding healthcare in an EEA state or Switzerland in the future.
28. The exact arrangements which will be provided for under future reciprocal healthcare agreements, is a matter still to be negotiated. It is envisaged that the EU arrangements in place prior to the UK’s withdrawal from the EU will be used as a basis for future arrangements with an EEA state or Switzerland.
29. For example, at the moment if a UK national were to injure themselves on a holiday in France, they would present their EHIC at the hospital and receive the necessary treatment. The hospital would then raise an invoice for the treatment with their liaison body. In the case of the UK, this liaison body is the NHS Business Services Authority (NHS BSA). The French liaison body would then submit a claim for the cost of that treatment to the UK based on receipts of the invoice from the hospital. Once the UK is satisfied that the claim is accurate and valid, the UK would release the payment to France.

Section 2: Healthcare and healthcare agreements

30. Section 2(1) provides the Secretary of State with a discretionary power to make regulations that make provision:
    1. In relation to exercises of the power at section 1, namely payments and arrangement for such payments in respect of healthcare in an EEA state or Switzerland (section 2(1)(a));
    2. For and in connection with the provision of healthcare in an EEA state or Switzerland (section 2(1)(b));
    3. To give effect to healthcare agreements (section 2(1)(c)).
31. These regulation-making powers are capable of being used on their own or in combination with one another (subject to the operation of section 2(7)).
32. In practice regulations under section 2(1)(a) can be used to set out the details of payments between states. Regulations under section 2(1)(b) are capable of being used to establish detailed unilateral arrangements that enable the Secretary of State to support certain people (for example a person residing in another country in receipt of a UK pension, or a UK resident temporarily visiting another country) to access healthcare in an EEA state or Switzerland. This regulation making power provides a mechanism for addressing situations where no bilateral agreement between the UK and a certain country is in place.
33. In the event of a future deal with the EU that includes reciprocal healthcare, the regulation making powers in sub-section (c) may be used to implement the comprehensive reciprocal healthcare aspects of that deal.
34. If there is no deal reached with the EU in respect of reciprocal healthcare, the powers under section 2(1)(c) are capable of being used by the Secretary of State to implement new comprehensive healthcare agreements with individual EEA States or Switzerland domestically.
35. Section 2(2) sets out the limits to the regulation making powers under section 2(1). It provides an exhaustive list of matters that regulations under section 2(1) can provide for. This means that regulations made under section 2(1) are not able to include provision for anything other than the matters set out at section 2(2) (although the regulations would not have to make provision in relation to all of the matters listed at section 2(2)).
36. Among other things, regulations made under section 2(1) are capable of being used to confer or delegate functions. Section 2(3) provides that functions may not be conferred on, or be delegated to, a person who is not a "public authority".
37. "Public authority" is defined at section 2(6) to include only a person who exercises a function of a public nature.
38. Section 2(4) provides the Secretary of State with a discretionary power to make directions about the exercise of any functions to a public authority that have been conferred or delegated by regulations under section 2(1). Directions may be given as necessary and as circumstances require and section 2(5) provides that such directions may be varied or revoked.
39. Section 2(7) provides that the regulation-making powers in section 2(1)(a) and 2(1)(b) may only be exercisable for a period of five years, beginning with the day the UK leaves the EU. Regulations made under these powers before this sunset period are preserved.

Section 3: Meaning of "healthcare" and "healthcare agreement"

40. This section defines "healthcare" which is used in section 1, section 2 and section 4, and "healthcare agreement" which is used in section 2.
41. The definition of "healthcare" is modelled on, but not confined to, the definition in the Health and Social Care Act 2012. The additional element of "ancillary care" is included to enable the Secretary of State to provide, where considered necessary, for ancillary costs such as travel costs which do not strictly fall within the definition of healthcare.
42. A healthcare agreement, bilaterally or multilaterally, is an agreement between the UK and EEA states and Switzerland and/or an international organisation, such as the EU. This agreement is one that provides for access to stated and agreed forms of healthcare when individuals from one country are seeking healthcare in another country, and also provides for how funding of such treatment will be shared between the two parties. An agreement concerning healthcare and other matters is an agreement concerning healthcare, and captured by the definition. Funding could mean direct payment, arrangements to waive or off-set costs, or other arrangements for covering costs.

Section 4: Data processing

43. As part of a reciprocal healthcare system, "authorised persons" may need to share personal data (including medical/health data) between themselves within the UK, or receive from or share personal data with, equivalent persons or bodies overseas in the EEA or Switzerland, to enable the reciprocal healthcare system to function. Prior to this Act, EU law provided the necessary powers to do this. This section provides a legal basis for processing data to facilitate reciprocal healthcare as part of an agreement with an EEA state or Switzerland or the EU.
44. This section provides a basis for facilitating data processing to support the making of payments, or provision for payments to be made, for healthcare in an EEA state or Switzerland and the giving effect to healthcare agreements as provided for by the Act.
45. For example, if after EU exit a person who is paid a UK pension but resides in Spain is to have their healthcare funded by the UK, it may be necessary for the relevant Spanish healthcare provider to share information with the relevant government department in the UK to determine that the person is in receipt of a UK pension and to confirm that person’s identity. The government department in the UK may need to share personal data to confirm the person’s identity and their receipt of a UK pension, so that the reciprocal healthcare arrangement in this scenario can operate correctly. They would do so in reliance on this section. The Spanish healthcare authority would rely on its own domestic powers to process data.
46. It may sometimes be necessary for healthcare providers to share medical information to facilitate treatment. This includes when someone requests to give birth or have treatment from a provider in an EEA state or Switzerland (as currently happens using the ‘S2 route’), and may sometimes happen when someone needs urgent healthcare (using the EHIC entitlement) and the provider requests information about their medical history to ensure they provide safe and effective care.
47. "Authorised person" is defined in section 4(6) and includes the Secretary of State, Scottish Ministers, Welsh Ministers and a Northern Ireland department, providers of healthcare and other NHS bodies (such as Special Health Authorities which may have administrative functions in relation to the NHS but do not provide healthcare directly).
48. Subsection (6)(e) enables the Secretary of State to make regulations adding other persons to the list of authorised persons. These regulations would be subject to the draft affirmative procedure. This regulation making power enables the Secretary of State to update the list of authorised persons to ensure that any person or body who is vital to the operation of a future reciprocal healthcare system would be able to process personal data to support its operation.
49. Personal data means any information relating to an identified or identifiable living individual.
50. As the personal data in question may include information about medical treatment to which the duty of confidence would attach, this section overrides an obligation of confidence owed by the person processing the personal data, or any other restriction that would apply to the processing of that personal data. However, any such processing must continue to comply with data protection legislation (as defined in section 3 of the Data Protection Act 2018). Section 4(3) of this Act expressly provides that nothing in section 4 authorises the processing of personal data which contravenes UK data protection legislation or relevant parts of the Investigatory Powers Act 2016 (or the Regulation of Investigatory Powers Act 2000 until its repeal).

Section 5: Requirement for consultation with the devolved authorities

51. Section 5 places an obligation on the Secretary of State to consult with the devolved authorities in certain situations, namely, before making regulations under section 2 that contain provision within the legislative competence of the devolved legislatures (that is, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly).

Section 6: Reports on payments made under this Act

52. Section 6 provides that the Secretary of State must lay before Parliament an annual report on payments made under the Act as soon as is practicable at the end of each financial year. The first report must be laid as soon as is practicable after the end of the first financial year to begin after exit day.
53. Section 6(2) stipulates that this report must cover payments made in respect of any healthcare arrangements implemented under the powers conferred by or under the Act.

Section 7: Regulations and directions

54. Sections 7(1) and (2) are self-explanatory. They are consistent with regulation and direction making powers in other Acts of Parliament, such as the Health and Social Care Act 2012 and the National Health Service Act 2006. These provisions help ensure that regulations or directions made under the Act will be fit for purpose.
55. To give an example – the Secretary of State may use regulations to confer different functions on to different public authorities in order to implement and operate effectively what may be provided for in an agreed reciprocal healthcare agreement. We do this now, in relation to the EHIC Scheme, which the NHS BSA administers on behalf of the Department. This administration includes the registering and the issuing of EHICs and the processing of EHIC claims.
56. Future administrative arrangements to implement reciprocal healthcare agreements may reflect this current situation, or may involve conferring different functions on other public authorities, as appropriate. Once arrangements are negotiated, the Secretary of State will be in the best position to decide on the appropriate bodies to administer such arrangements.
57. Section 7(3) provides that regulations that may be made under section 2 may amend, repeal or revoke retained EU law that is not primary legislation.
58. Section 7(4) provides that regulations made under section 4(6) (matters relating to the definition of "authorised person") will be subject to the draft affirmative procedure. All other regulations made under the Act are subject to the negative resolution procedure.

Section 8: Extent, commencement and short title

59. Section 8(1) provides that this Act extends to the whole of the UK.
60. Section 8(2) provides that this Act will come into force on the day it is passed.
61. Section 8(3) establishes that the short title of the Act is the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019.