Charging Overseas Visitors

The NHS (Charges to Overseas Visitors) Regulations 2011 require every NHS Trust in England to consider whether all patients who are newly referred or attending for a new episode of treatment are entitled to free NHS treatment. This is to apply to all patients to avoid any potential allegations of discrimination. It is strongly recommended that every Trust has an Overseas Visitors Manager (OVM) to oversee the implementation of the Regulations.

Immediately necessary

The key principle which must be applied is that treatment which is considered to be immediately necessary must never be withheld from chargeable overseas visitors pending payment. Treatment should never be withheld only on the basis that the patient has no funds to pay. Failure to provide immediately necessary treatment may be held to be unlawful under the Human Rights Act 1998 and a refusal to treat in such circumstances could lead to a legal challenge of the decision and to judicial review court proceedings.

Only clinicians can make an assessment as to whether a patient's need for treatment is immediately necessary, urgent or non-urgent. The treatment must not be delayed or withheld to establish the patient's chargeable status or to seek payment. A deposit or an undertaking to pay could be sought, but if it is not possible to secure payment, treatment should not be cancelled or delayed. Those in need of urgent treatment should not be discouraged from seeking it. Treatment is not made free of charge by virtue of being provided on an immediately necessary or urgent basis. Charges found to apply cannot be waived and should be invoiced after the treatment has been provided.

A complicating factor in some cases will be that in order to determine if a course of treatment can safely wait until a patient can return home, a clinician may need to know the patient's estimated return date. It is the responsibility of the OVM to gather this information. If an earlier journey home would not be reasonable then treatment should go ahead and debts should be recovered afterwards. In some cases it will be necessary to estimate the return date and it may be necessary to estimate that the patient will remain in the UK for, say, six months.

Only when a clinician confirms that the need for treatment is non-urgent should treatment be withheld pending payment. In cases of non-urgent treatment that is identified as chargeable, it is the OVMs duty to assess when the patient can be reasonably expected to return home and inform the clinician of this, so that the clinician can consider if and what treatment can wait.

Applying these principles needs careful handling and an effective exchange of communication between the clinicians,the OVM and the patient should be fully documented.

Ordinarily resident

Any person of any nationality not ordinarily resident in the UK is potentially liable to charges for NHS hospital treatment. 'Ordinarily resident' means living lawfully and on a properly settled basis in the UK. This has to be assessed on an individual case basis as there is no minimum period of residence that confers ordinarily resident status. However, anyone who has lived lawfully in the UK for at least 12 months immediately preceding treatment is exempt from charges. When calculating a period of residence a person can be out of the UK for 182 days in a year before any period of absence is taken into consideration. The guidance recommends that any patient who after baseline questioning does not appear to have lived lawfully in the UK for the previous 12 months should be notified that charges might apply and be interviewed by the OVM.

Exemptions

If ordinary residence is not established, then exemptions to charging can be applied. It is the responsibility of the person claiming exemption from charges to prove that they are entitled to treatment without charge. The NHS Trust is entitled to ask for documentary evidence to support a claim for free treatment. If the patient's exempt from charges status changes part way through a course of treatment, then they can not be charged part way through that particular course of treatment provided they were properly assessed as exempt from the outset.

Some NHS services are free to everyone regardless of the status of the patient. These are:

1. Accident and emergency services (A&E can be a vital first point of contact to gather crucial information about the patient's residence. A&E clinicians should therefore be made aware of these regulations)
2. Family planning services
3. Certain diseases where treatment and their diagnosis is necessary to protect the wider public health. The regulations set out a list of these diseases
4. Treatment for sexually transmitted diseases. But note that for HIV/AIDS exemption only applies to the initial diagnostic test and the associated counselling. The treatment of HIV/AIDS is chargeable
5. Compulsory treatment under the Mental Health Act 1983 (as amended) or included as part of a Court Order
6. Services provided in the community but not if provided by staff employed to work under the direction of an NHS hospital

Categories of patient who can be fully exempt

Annex B to the guidance to the Regulations sets out categories of patients who can be fully exempt. Not all of the Regulations have a corresponding exemption for family members and Regulation 24 and the table set out in the guidance should be considered when considering family members. The guidelines must be referred to, but include amongst many other categories listed the following:

1. Refugees and formal asylum seekers whose application have not yet been determined
2. People working on ships registered in the UK
3. Members of HM armed forces
4. Students pursuing a full time course of study of not less than six months duration or pursuing a course of any duration that is substantially funded by HM Government
5. People who are in the UK to take up permanent residence
6. People who have lived lawfully for 10 continuous years in the UK but who are now working abroad and have not been away for more than five years

Patients who are exempt from charges if their need for treatment arose during their visit to the UK

Again the guidelines must be referred to, but include amongst other examples listed:

1. Nationals, refugees or stateless persons and their family members resident in a EEA member state and Switzerland. Plus non-EEA nationals who are legally resident and insured in an EU member state (except Denmark)
2. UK state pensioners who have either lived lawfully in the UK for 10 continuous years or have been employed by the UK government for 10 continuous years at some point
3. People from non-EEA countries with which we hold a reciprocal healthcare agreement

Humanitarian grounds

The Secretary of State can designate an individual as exempt from charges on exceptional humanitarian grounds as long as certain criteria are met.

The way forward in practice

The guidelines state that NHS Trusts must take reasonable measures to pursue an overseas visitor's debt based on individual circumstances. The services of a debt recovery agency that specialises in recovery of overseas debt should be used, if necessary, except in cases where it is clear that the patient will be unable to pay e.g. if they are destitute failed asylum seekers. Even in such cases an invoice should be raised and identified in the Trusts accounts as a bad debt. NHS Trusts should accept payment by instalments where possible.

Patient confidentiality of medical health care information should be maintained. Non-medical information can be shared with the UK Border Agency (UKBA) via the Department of Health and the UKBA can use that information to deny any future immigration application to enter or remain in the UK.

It is strongly recommended that all Trusts and NHS bodies use a pre-attendance form that should be included with all out-patient and in-patient appointment letters and an example of such a form is at Appendix 1 of the Department of Health guidance.

If a clinician becomes aware of the possibility that a patient ought to be charged for non-urgent treatment and an interview by the OVM is not immediately possible, then the guidelines recommend that the following entry should be made in the notes:

Poster and leaflets are available on the Department of Health website that explain the charging regulations and are also displayed in hospitals and distributed to patients.

There can be no substitute to a detailed interview and collation of any supportive documentary evidence by the OVM, in the appropriate individual case where it is thought that the patient might be liable to be charged for treatment. Where that information is lacking, or where there has been an apparently inappropriate decision that a patient should be required to pay, Trusts should be aware that it is extremely likely that further action, including potential judicial review proceedings, may follow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.