Health and Sport Committee

Meeting date: Tuesday, December 15, 2020

Official Report 682KB pdf

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Subordinate Legislation

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Cross-border Health Care (EU Exit) (Scotland) (Amendment) Regulations 2020 [Draft]

Under agenda item 2, the committee will consider an affirmative instrument. The instrument has been laid under the affirmative procedure, so we have an evidence session with the Minister for Public Health, Sport and Wellbeing. There will be an opportunity to ask questions, then there will be the formal debate on the motion that the minister will move.

The regulations make provisions relating to certain patients participating in European cross-border healthcare who will be in a transitional situation on the EU-exit implementation period completion day, and will ensure that the Scottish statute book will function correctly after that date. The instrument is a stand-alone piece of cross-border legislation that is not linked to any other arrangements.

I welcome to the committee Joe FitzPatrick, the Minister for Public Health, Sport and Wellbeing, who is accompanied by, from the Scottish Government, John Brunton, who is a senior policy manager in the safety, openness and learning unit of the healthcare quality and improvement directorate; and Arezo Darvishzadeh, who is a solicitor in the legal directorate. I thank the witnesses for joining us and invite Joe FitzPatrick to make a brief opening statement.

I am pleased to join the committee to discuss the regulations. It remains the Scottish Government’s clear position that the interests of Scotland would best be served by remaining in the European Union. The devastation to the worldwide economy that has been caused by Covid-19 has served only to strengthen that view.

However, as a responsible Government, we are duty bound to make necessary preparations to ensure that the Scottish statute book remains operable at the end of the transition period on 31 December this year.

At present, under the European 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, treatment that is provided by their home state. The patient pays for the treatment up front, and may claim reimbursement that is limited to the amount that the same or equivalent treatment would have cost had it been provided by the state at home—which, for our purposes, would be in Scotland and on the national health service.

Healthcare is a devolved matter, so the National Health Service (Cross-border Health Care) (Scotland) Regulations 2013 implemented the directive in Scotland where necessary. Importantly, the 2013 regulations set out the need for prior authorisation to travel for expensive specialist treatment.

The Cross-border Health Care (EU Exit) (Scotland) (Amendment etc) Regulations 2019 provided a mechanism to ensure there was no interruption to cross-border healthcare arrangements for people accessing healthcare through the directive after EU exit day, in the event of there being no deal. That would have applied to member states that agreed to maintain existing reciprocal arrangements with the United Kingdom for a transitional period until 31 December 2020. Cross-border healthcare requires basic reciprocal arrangements in order to operate.

The 2019 regulations were originally due to take effect on 29 March 2019. However, as a result of the European Union (Withdrawal Agreement) Act 2020, that was suspended, as the UK continued to be subject to EU law until the implementation period completion date—11 pm on 31 December 2020. The 2020 regulations reflect that position.

European reciprocal healthcare arrangements are separate from cross-border healthcare. Existing reciprocal healthcare arrangements will remain extant until the end of the implementation period, when reciprocal arrangements that are set out in the withdrawal agreement for existing participants in the EEA and UK will come into force. Negotiations between the UK and EU on wider reciprocal healthcare arrangements after the implementation period are on-going.

European cross-border healthcare has not featured in the negotiations between the EU and UK. Therefore, when the implementation period comes to an end, it will no longer be possible for UK citizens, including Scots, to exercise previous EU rights in that regard. The instrument therefore terminates the existing cross-border healthcare arrangements that are in place between the UK and the EU.

However, the instrument protects patients who find themselves in a transitional situation on implementation period completion day. That includes individuals who obtained prior authorisation for planned treatment before completion day, but who have not yet obtained the treatment; individuals who accessed healthcare abroad prior to completion day, but who have not yet completed the treatment or sought reimbursement; and, importantly, UK state pensioners from Scotland who live in other EEA countries and who need to access healthcare that is provided by the NHS while in Scotland. Those time-limited measures aim to prevent a sudden loss of cross-border healthcare rights for Scottish residents and pensioners from Scotland who reside in the EEA.

We consider the amendments to be technical for the most part. I hope that members agree that, as part of the Scottish Government’s overall programme of legislative planning for EU exit, the Cross-border Healthcare (EU Exit) (Scotland) (Amendment) Regulations 2020 provide necessary changes to protect Scottish residents’ rights to access cross-border healthcare, as far as that can be achieved for—[Inaudible.]

We are, of course, happy to take questions on the draft regulations.

I ask members who have questions to indicate that by typing “R” in the chat box.

I will start by asking the minister about the narrow impact of the amendment in relation to people who are undergoing treatment on 31 December. How many people does the Government estimate might be affected by it?

The number of people will be very low—possibly, none. A relatively low number of people go through that process. Does John Brunton want to add anything to that?

No. The minister is very right that few such people are going through the system at the moment. With Covid, the numbers will be even smaller.

Good morning, everybody. That was pretty much my question—it was about the number of people who will be affected. I am surprised to hear that the matter was not part of any negotiations as we were exiting. Is that related to the fact that it affects a very small number of people?

Could the minister also confirm, as far as it is possible to do so at this stage, that what he said indicates that there will be no cover in place after the transition arrangements conclude?

In terms of the specifics, the regulations are about people seeking treatment in the EEA, access to which will end on 31 December, so what the convener says is accurate; after that date, people will obviously have to make other arrangements for healthcare. The regulations are to ensure that the law works in practice for everyone, and that nobody falls through the cracks. It is very unlikely that there will be many, if any, people in the category, but it is important that we have mechanisms in place to protect them.

Excellent. Thank you very much.

There are no further questions from colleagues, so we move to item 3, which is the formal debate on the made affirmative SSI on which we have just taken evidence. I invite the minister to move motion S5M-23423. Any members who wish to contribute to the debate should indicate that by typing an “R” in the chat box.

Motion moved,

That the Health and Sport Committee recommends that the Cross-border Health Care (EU Exit) (Scotland) (Amendment) Regulations 2020 [draft] be approved.—[Joe FitzPatrick.]

I see that no members wish to add anything. Does the minister have anything to add?

No—I think that we have covered it. What the instrument does is pretty technical.

Motion agreed to.

That concludes consideration of the instrument. We will report to Parliament accordingly. I thank the minister and his officials for their attendance.