Health and Sport Committee

Meeting date: Tuesday, March 26, 2019

Official Report 647KB pdf

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Subordinate Legislation

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Cross-border Health Care (EU Exit) (Scotland) (Amendment etc) Regulations 2019 [Draft]

Agenda item 2 is evidence on the instrument from the minister and his officials. After they have answered members’ questions, we will move to the formal debate on the motion.

I welcome to the committee Joe FitzPatrick, Minister for Public Health, Sport and Wellbeing, John Brunton, senior policy manager, and John Paterson, solicitor, from the legal directorate of the Scottish Government. I believe that the minister wishes to make a short opening statement.

I am pleased to join the committee this morning to discuss the regulations. It is the Scottish Government’s clear position that the interests of Scotland would be best served by remaining in the European Union. Recent events in Whitehall have served only to strengthen that view. However, as a responsible Government, we have a duty to make the necessary preparations to ensure that the Scottish statute book remains operable to help to mitigate the considerable damage that a no-deal Brexit would cause.

At present, under the European Union cross-border healthcare directive, European Economic Area citizens have the right to obtain healthcare services in other EEA countries. However, the treatment must be the same as, or equivalent to, the treatment that is provided by the state in their country of affiliation. The patient pays for the treatment up front and may claim reimbursement, limited to the amount that the treatment would cost had it been provided by the state at home—in Scotland, that would be treatment on the NHS.

As healthcare is devolved, the National Health Service (Cross-Border Health Care) (Scotland) Regulations 2013 implemented the directive in Scotland where necessary. The regulations provide a legal basis for the NHS to apply the need for prior authorisation for expensive specialist treatment. They also limit the amount of reimbursement to the cost to the NHS had the treatment been provided here.

Importantly, the home state retains responsibility for the healthcare that it funds on a cross-border basis. If the treatment is not available on the NHS in Scotland, patients cannot use the directive to receive it in another EEA country and claim reimbursement from the NHS in turn.

The Cross-border Health Care (EU Exit) (Scotland) (Amendment etc) Regulations 2019 are taken from powers within the European Union (Withdrawal) Act 2018. They correct deficiencies that would arise from the UK’s withdrawal from the EU without a deal by modifying the 2013 regulations. England, Wales and Northern Ireland are introducing similar regulations.

The regulations protect patients in a transitional position and enable continuation of cross-border healthcare arrangements in those countries with which the UK has established continued reciprocal arrangements, maintaining the provisions in the directive that gives EEA citizens the choice to travel for healthcare.

Maintaining effective access to cross-border healthcare abroad requires basic reciprocal agreements to ensure that the existing EU framework is maintained in participating countries. Therefore, the regulations terminate access to cross-border healthcare with countries where there is no longer a reciprocal agreement. As reciprocal healthcare arrangements are applied on UK-wide basis, the Secretary of State for Health will maintain a list of countries that reach agreement to maintain the current reciprocal arrangements with the UK until 31 December 2020.

The regulations protect, as far as possible, key groups of patients in a transitional situation on exit day, irrespective of any reciprocal agreement being in place. Examples include individuals who obtain prior authorisation for planned treatment before exit day but who have not yet obtained treatment; individuals who accessed healthcare abroad prior to exit day but who have not yet completed their treatment or sought reimbursement; and UK state pensioners from Scotland who are living in other EEA countries and need to access healthcare provided by the NHS while they are in Scotland.

These time-limited measures aim to prevent, as far as possible, without reciprocal agreements, a sudden loss of overseas healthcare rights for Scottish residents and pensioners from Scotland residing in the EEA. We consider the amendments to be technical for the most part.

I hope that members will agree that, as part of the Scottish Government’s overall programme of legislative contingency planning for Brexit, the Cross-border Health Care (EU Exit) (Scotland) (Amendment etc) Regulations 2019 provide necessary changes to protect Scottish residents’ rights to access cross-border healthcare in other EEA countries, as far as that can be achieved.

We are happy to answer questions.

Thank you. Minister, you talked about continued reciprocal arrangements with other countries in the European Economic Area. Can you update the committee on which countries the UK Government has made progress with in reaching such agreements?

We are not aware of any formal bilateral agreements as yet, but we understand that some EEA countries have agreed in principle to reciprocal agreements. I think that Spain is the only country that has made that public and, as I understand it, has drafted regulations. However, it should be made clear that the European Commission has said that it considers discussions in the second phase of negotiations to be the appropriate way to reach agreement on the future of reciprocal healthcare, and it has indicated that it does not encourage bilateral agreements at this time. In spite of the fact that there are indications, particularly from Spain, there could be a hiatus. The Cross-border Health Care (EU Exit) (Scotland) (Amendment etc) Regulations 2019 will protect Scots who have travelled for treatment but have yet to receive it, or who have received treatment and are seeking reimbursement in the intervening period.

On the expectation on the EU’s part that there will be a withdrawal agreement, it is understandable that the European Commission does not wish to promote the concept of bilateral agreements at this stage. In the absence of an agreement, which is clearly a possibility against which the regulations are designed, immediately on exit day—whichever day that might be—the existing arrangements would cease and, therefore, bilateral arrangements would be required for UK citizens abroad, would they not?

There is a clear willingness from Spain that that should happen and, as I said, I understand that the regulations are already drafted. However, the European Commission’s view is that, irrespective of the outcome of Brexit, any reciprocal agreements should be pan-European. There are perhaps two different views coming from Europe, which is why it is important that we put the regulations in place.

I understand that point. Given that the EEA includes a number of countries such as Norway and Switzerland that are not members of the European Union, what progress has been made on bilateral arrangements with those countries? Norway is obviously very important to Scotland from the perspective of the oil industry.

Reciprocal agreements are a reserved matter. I understand that the UK Government is attempting to get reciprocal agreements in place. Until recently, we had not been given terribly much information about the discussions that have taken place, but we are starting to get a bit more information about that.

The UK Government has entered into agreements with Switzerland, Liechtenstein, Norway and Iceland, so there will be reciprocal agreements with those countries.

I assume that, at the point at which formal arrangements are agreed, that will be made public.

Yes.

What guidance will be issued to NHS boards and, potentially, to individuals on the operation of the instrument?

We already have the European cross-border healthcare national contact point, which was established when the directive was transposed into domestic legislation in 2013. Our intention is to retain that contact point and to update it to include the provisions in the amendment regulations that underpin the instrument, and that information will be in the guidance that will be issued to NHS boards.

I will elaborate on how the contact point works. It is a web facility that is maintained by NHS inform, which is the information arm of NHS 24. It provides information for patients who wish to use a cross-border healthcare route for treatment overseas, and it contains contact details for the cross-border leads in each of our NHS boards. That service will be maintained and updated.

I am interested in patients who make a specific request to use the directive, under article 8. Does the minister know how many Scottish residents are awaiting treatment under the directive in other member states?

The figures for the number of patients are collated on an annual basis and published in April, so last year’s figures will be published this April. The latest figures that are available, which give us an indication of the sort of numbers that we are talking about, are from 2017 and were published last April. In that year, the figure was 29 people, so it was a relatively small number of folk, and we reckon that the cost was about £50,000.

I have with me a list of the countries that each of those 29 people came from but, if I read them out, there is a danger that I would identify them, because there were two people from one country, five from another, one from another, one from another and so on. There was one country with 16 people but, mainly, a small number of people made that choice. Those were the figures for 2017; we should get the numbers for 2018 at some point in April.

Yes. Every year, we get a questionnaire from the European Commission, via the UK Government. We then go out to NHS boards, which provide the information that we need.

We are talking about patients who are seeking healthcare and live in Scotland, but who might go to Spain, for example. Do the figures include patients who are seeking dialysis and might be wintering in Spain?

10:15  

That is a good question, but I do not think that it would be covered by the regulations. Currently, that matter would in the main be covered by the European health insurance card. It is an important question, but I do not think that there is a particularly good answer for people in that circumstance. The regulations do not replace the EHIC, although reciprocal arrangements could do that, if we get them—that will depend on what agreements we get. Whether Brexit day is 29 March, 12 April or some other time in the future, it is important that people understand what the implications are for them. For most people travelling, I guess that it will be about having insurance that covers them for all eventualities. You are talking about a particular group of people with medical conditions, for whom it might be difficult to get insurance.

Do you want to add anything, John?

Not really. I just point out that, in the short term, if someone is looking for dialysis when they are in Europe for two or three weeks, we might ask an NHS board to pick up the bill for that, under basic equality considerations. However, it would be down to individual boards whether they are prepared to fund that.

We need to ensure that people are clear and understand what the reciprocal process entails. I had a constituency issue when a person who came from Cyprus needed dialysis in Ayrshire, and it was really complicated to try to organise that.

When people voted in the referendum a number of years ago, that sort of detail was never discussed. You are making a good case for why we need another people’s vote.

Emma Harper makes an exceptionally good point. Personally, I would be surprised if the EHIC covered dialysis abroad. Obviously, the minister will have figures on the number of EU nationals who receive dialysis under the EHIC, and I would be surprised if those numbers were substantial. The minister might not have that to hand, but will he ask health boards to provide us with the information? It seems to me that that is beyond the terms of the reciprocal agreement.

I do not think that that information is available, but the EHIC covers pre-existing conditions, which includes dialysis.

Sure, but the idea that if someone breaks their leg in Spain and goes into hospital they will get reciprocal healthcare is well understood, whereas that is not the case with the idea that someone can, using an EHIC, go into a hospital in Spain without any pre-authorisation and ask for kidney dialysis, which is what Emma Harper asked about. I would be surprised if that happens regularly without lots of prior authorisation.

People will certainly want to ensure that they are aware of the support that they will get.

There would definitely be safety aspects, but it happens.

On the reporting, health boards in Scotland that provide care to EU citizens under EHIC need to communicate back to you information on the work that they have carried out.

The regulations are not about EHIC, so I think that we are—

I did not raise EHIC; you did.

But that is not what the regulations are about.

You raised the point, and I am just trying to confirm something. Do you have figures on that, or can you ask the boards to give a return on the number of patients involved?

We will take that away and see what we can do.

In your opening remarks you mentioned agreements and consent with regard to England and Northern Ireland. Having read the letter that the Cabinet Secretary for Health and Sport sent to the committee on 21 March, I have great concern that the Scottish Parliament, Scottish ministers and the committee do not seem to have consent or agreement from Westminster on how the process will work. The convener had asked the cabinet secretary why we do not have delegated powers in this respect. The cabinet secretary mentioned that, like the Welsh Government, the Scottish Government

“places great importance on the protection of its devolved status and legislative competence.”

The cabinet secretary said that she wrote to the appropriate minister at Westminster with a perfectly reasonable request with regard to the Scottish Parliament being given delegated powers. However,

“The UK Government has ... rejected this reasonable demand and there is little prospect of a reversal at this time.”

Is there any follow-up from that, such as a memorandum of understanding? Will the matter come back to the committee? It is worrying that healthcare arrangements have been considered in the House of Lords at Westminster when they are a devolved matter, and that this Parliament has not been given legislative powers to deal with them.

Let me make it absolutely clear that we think that devolution and the powers of the Scottish Parliament should be respected at all times. To say that the Scottish Government is not happy about the current arrangements would be an understatement. When we talk about devolved matters, it is important that we remember that that is not about the Scottish Government; it is about according the Scottish Parliament its place, and respecting it at all times. We were disappointed that the UK Government did not accept proposals that would have guaranteed our devolved powers.

That said, we must make a decision about what is in the interests of the people of Scotland, which is why we are taking a pragmatic approach and have laid regulations that will protect the small number of citizens who could find themselves in a difficult place if we did not.

I understand that you want to make the transition smooth and seamless. However, at the moment we do not even know whether Brexit will happen. Can you give the committee and Parliament some form of guarantee on how people can be protected if Parliament does not have delegated powers? Should we write a letter? Should we ask people from Westminster to come to the committee to give evidence on why we are not being given powers?

It is for the committee to decide how it wants to do its business. You may rest assured that the Scottish Government will continue to press the point about protecting the powers of this Parliament.

You are right that there is still huge uncertainty about Brexit. We are discussing today arrangements that would come into effect only in the event of a no-deal Brexit. It is about ensuring that provisions are in place for the worst-case scenario, whether we reach the cliff edge on 29 March, 12 April or at some other time. Exit day is when the provisions would come into effect; they would not come into effect before then.

Thank you. The committee will certainly consider those matters.

You said that the most recent statistics, from 2017, show that the matter affects 29 people in one direction. Do you know what the numbers are in the other direction?

I am not aware of patients from EEA countries using the directive to access treatment in Scotland. As far as we are aware, the directive has never been used in that way.

Thank you. David Stewart has a final supplementary question.

The subject has been partially covered, convener. I want to ask about the transitional arrangements. As we heard, the directive is rarely used in Scotland; we are not talking about the S1 form and S2 form routes. As you know, minister, if a Scottish pensioner who lives in an EEA country—for the record, that is one of the 28 EU community countries, plus Iceland, Liechtenstein and Norway—or Switzerland has prior agreement to get treatment in Scotland, there will be a 12-month period during which treatment will be provided in Scotland free of charge. Is there contingency to cope with that? I take it that the numbers will not be high, but if there were suddenly to be a surge in cases, health boards would need capacity to deal with it. Will you say a little more about the transitional arrangements?

I do not understand how there would be “a surge”. The approach will maintain the current position, so I do not see how the numbers would get higher than they are just now. I am sorry—maybe I did not understand the question.

Let me clarify. You will be familiar with the transitional arrangements. If a Scottish pensioner, for example, who lives in one of the eligible countries has had prior permission to have treatment in Scotland, it has been agreed that healthcare will be provided free by the Scottish health service during the 12-month period after exit day. That is provided for—

I am sorry. Are you talking about pensioners?

That is provided for in the regulations.

Do you have an idea of the numbers who will use the provision over the 12-month period?

I do not think that we do.

We do not have such numbers.

The alternative would be to leave some individuals with potentially no access to health care anywhere in Europe. It is pragmatic that we take account of that in the regulations.

The regulations say that, if people have prior agreement, they can access free treatment in Scotland for a 12-month period. That is laid down in the regulations that we are approving today.

We do not know how many pensioners have come back to Scotland and we do not know how many there might be. We will monitor the position over the year. England has already done this, and Wales is considering doing so. It is likely to prove to be sensible for Scotland to follow the other countries in doing so.

I am sympathetic to the minister’s comment that he does not expect a surge in numbers. However, if he does not know the numbers, he does not know whether there will be a surge. All I am getting at is that we need to give some understanding to health boards that there will be additional pressure on NHS resources in Scotland for a 12-month period because—

I am not—

If you would let me finish, minister, you would understand the point that I am making.

The issue is that there is a 12-month transition period laid down in the regulations that we are being asked to agree today. If a person has prior agreement, they will have a right to get health care in Scotland for 12 months if they live in one of the countries that I mentioned. The minister says that he does not know how many people will access that. Therefore, it is difficult to know whether there will be a surge. My assumption is that there will not be a lot of pensioners who will access that, because the directive is not widely used across the EU. For good planning in the health service, surely the minister should try to find out what numbers might be involved.

Your premise that it is not a huge number is probably correct. We will take the point on and check whether there is relevant information.

Does Brian Whittle want to come in briefly?

I do. Good morning, panel.

Before you make your point, I note that we will move on shortly to the debate. If it is a point, rather than a question, I suggest that you leave it until the debate.

I will leave it until the debate.

We move to item 3, which is the formal debate on the instrument. I remind the committee that members may no longer put questions, but can make points in the debate. Officials will not take part.

I move,

That the Health and Sport Committee recommends that the Cross-border Health Care (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 [draft] be approved.

I will now kick off. I have listened to the questions to the minister with great interest. I declare an interest, in that my parents lived in Spain for 10 years and, while they were there, both had serious conditions that were treated in Spain and in the UK, and there was no problem. One had cancer, and one had a back operation.

We are trying to create problems here. We are politicking round the table and creating problems. As it currently stands, a person can get treatment in an EU country and, if they come back to the UK, can get treatment here as well. That happened practically and there were no barriers to it. I do not know where we are going with this or what we are trying to get out of it. It is beginning to irk me that we are creating problems that are not there.

Thank you. Since I see no other member wishes to contribute to the debate, I invite the minister to wind up.

To wrap up, Mr Whittle is correct that the system works well across Europe just now. The regulations are to put in place protections in the event of a no-deal Brexit. If we do not put those protections in place, there could be people who are currently in the process of using the directive to access treatment in another EU country who would potentially be left high and dry in the middle of that process, either just prior to their operation or just after receiving the operation and prior to receiving funding.

We have talked of a number of matters—I appreciate that the committee likes to do so—that do not relate directly to the regulations that are before us. The regulations are a pragmatic approach to deal with a no-deal Brexit. In any other scenario, they would not necessarily be required.

The question is, that motion S5M-16442 be agreed to. Are we agreed?

Motion agreed to.

I thank the minister very much, and I suspend the meeting for a few moments to allow him to depart

10:30 Meeting suspended.  

10:32 On resuming—  

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National Health Service Superannuation and Pension Schemes (Scotland) (Miscellaneous Amendments) Regulations 2019 (SSI 2019/46)

Item 4 is consideration of an instrument that is subject to negative procedure. As colleagues will recall, we considered the regulations at last week’s meeting and agreed to write to the Scottish Government for further information on a number of issues. This morning, we received a letter from Kate Forbes, the Minister for Public Finance and Digital Economy, in response to our questions.

I invite comments from members.

You will recall, convener, that I raised this issue last week. I am concerned about the 6 per cent jump next month in the employer contribution. Many members will have received correspondence on the matter, particularly from general practitioners, who will be dramatically affected by the costs for their staff, such as receptionists. It might result in redundancies in the longer term. Some general practices might not be able to continue and the worry then is that they go back under health board control.

There are particular issues in rural areas; recruitment and retention of GPs might be affected; and there is also an issue with non-NHS employees such as those in the hospice movement. Indeed, a number of members have raised the same issue, and Children’s Hospices Across Scotland has written to us to say that the change will cost another £350,000 a year, which is the equivalent of nine full-time nurses.

I have seen the letter from the minister. Obviously, these are primarily reserved issues, but these changes, coming on top of the changes to the lifetime and annual allowances, are hitting GPs and consultants. I do not think that there is anything that we can do today but accept the regulations, but it is important that I put on record my great concern, which I am sure is shared by the committee, about the effect that these changes will have, particularly on the recruitment and retention of GPs—unless, of course, there is some Barnett consequential to remedy what is going to happen.

Indeed. The points that you have made are very important.

I, too, have concerns about the regulations that I have raised previously. David Stewart is correct that they will affect not just GPs but receptionists and so on. They could also affect charities, and I have great concerns about that. That issue was raised at the Education and Skills Committee and, when I checked last week, I found that the Scottish Parliament information centre was not aware of it either.

The regulations are coming in, yet a lot of people are not aware of them, and they could have dire consequences for services. This is a reserved matter, so the big worry is that the Westminster Government will not give money for consequentials. I think that it does not fall into the category of health consequentials, because it is not only the health sector that will be affected. I would like that to be clarified, as there could be dire effects on front-line services in the health sector and elsewhere.

Although I understand that we cannot stop the regulations going through today—I asked for advice on that—I wonder whether the committee is minded to follow up the concerns that some of us have raised, and perhaps to write again to the minister, Kate Forbes, for clarification about where the money will come from and whether the Scottish Government will press the UK Government for the extra funds. It is the UK Government that has raised the level of the pension contribution, so it should not be incumbent on the Scottish Government, which does not have that power, to make up the shortfall. If this is part of a trend, it is a worrying one; certainly, it is one of many that have come forward.

I agree with David Stewart and Sandra White on the aspect regarding people working in GP practices, whether they are doctors, nurses, receptionists or admin staff. I represent a rural region that already has GP recruitment challenges. I want to ensure that we monitor this issue and make sure that the changes have no negative impacts.

It is important to say a couple of things to Sandra White. It is open to us to stop the regulations today, but if we did so, it would be by annulling them. Therefore, they would have to go to the chamber this week, because they are due to come into force on 1 April. They would have to be dealt with by the Parliament in time to stop that. That option is available to us.

On the funding question, I remind colleagues that Kate Forbes was clear in her letter, which said:

“Failure to fully fund these costs will have a significant and detrimental impact on the delivery of essential front line services in Scotland.”

It is important to note that the Scottish Government continues to engage with the Treasury on that issue. The letter continues:

“the Scottish Government will take the appropriate steps to disperse the additional funding”,

if that is received from the Treasury, and

“if there is a shortfall in the funding from the UK Government”,

the Scottish Government will

“consider how that shortfall will be met.”

That seems to imply that the shortfall will be met, but it would be worth our while to write back to Kate Forbes, even if we agree to approve the regulations, and ask for confirmation that the intention is that, come what may, the shortfall will be met and there will be no impact on general practices, hospices and other organisations that members have mentioned. Are members minded to do that?

Members indicated agreement.

Does the committee agree to make no recommendations on the regulations?

Members indicated agreement.