Professor Tamara Hervey scrutinises recent assertions that the NHS could collapse due to the number of patients coming to the UK for medical treatment

On 21 March 2016, the Daily Telegraph published the views of UKIP’s health affairs spokesperson, Louise Bours MEP, under the headline ‘Britain’s NHS can’t survive staying in the EU’. Her argument is that the EU referendum gives us a choice between the NHS or the EU, ‘because we can’t have both’.

At a cross-party conference in February 2016, on ‘The Good Life after Brexit’, UKIP member and cancer specialist Professor Angus Dalgleish suggested that the NHS is currently in danger of complete collapse, because of the volume of patients coming from the EU to the UK for medical treatment.

These and other similar comments have sparked a lively debate about the interplay between Brexit and the future of the NHS, but as we examine the various aspects of the debate we see a great deal of uncertainty surrounding the possible impact of Brexit on healthcare in the UK.

First, let’s examine Dalgleish’s main point, also mentioned by Bours: the issue of health tourism. Under EU law, some people from EU countries are legally entitled to be cared for by the NHS, but the majority of these patients already live and work in the UK.

This means that they pay the same taxes as UK citizens – taxes which pay for the NHS. If the UK leaves the EU, their position in the UK would depend on the negotiations between the UK and the other countries in the EU. Some of those people might then choose to leave because of the uncertainty of their employment position, and so would cease to be a burden on the NHS.

But they would also cease to contribute to the UK economy, and to the NHS. And, in fact, since they use the NHS significantly less than UK citizens (as shown by a Nuffield Trust study), the net effect would be that the NHS would be worse off.

Disproportionate profit

It’s impossible to get accurate figures on movement of patients around the EU. ‘Medical tourists’ have always come to the UK for specialist health care – our doctors are among the best in the world. Many are seeking fertility treatment, cosmetic and bariatric (or weight-loss) surgery. EU rules mean that some people from the EU have a right to access NHS treatment – and have it paid for by their home country.

What’s more, figures from 18 hospitals showed that 25 per cent of their private income came from medical tourists, but they were only 7 per cent of patients. In other words, the NHS is making a disproportionate profit from medical tourism

But as parts of the NHS now increasingly subsidise public functions by also serving private patients (under the Health and Social Care Act 2012), are these European patients putting the NHS in jeopardy? Research from the London School of Hygiene and Tropical Medicine and York University found that, on the contrary, the UK is a net exporter of patients.

What’s more, figures from 18 hospitals showed that 25 per cent of their private income came from medical tourists, but they were only 7 per cent of patients. In other words, the NHS is making a disproportionate profit from medical tourism.

And while they are here, let’s remember that medical tourists spend as ordinary tourists: on accommodation, food, taxis and so on. This brings in about £219 million additional tourism spending a year, according to the LSHTM/York research. Would this stop if we left the EU? Probably not. Most of it is paid for privately.

Even when it is covered by national health insurance systems, our hospitals would probably be able to contract with national insurance funds in other EU countries under WTO rules. But the EU rules smooth the way.

Chilling effect

Next, what about the claim that the EU encourages privatisation? Nothing in EU law, or in the TTIP for that matter, requires privatisation of the NHS. That is a political decision for national governments, under the division of competences between the EU and its Member States. Michael Bowsher QC, in much-cited advice for Unite, agrees. (Incidentally, Unite’s policy is pro-EU membership.)

Bowsher’s focus is on TTIP’s chilling effect on future decision-making by the UK on the NHS. We don’t have the final TTIP texts, so definitive legal advice isn’t yet feasible. Bowsher’s view is that the TTIP’s new investor court system will be better than the current position, in which investor disputes are settled in international arbitration in private, without the proper safeguards of a judicial system.

Moreover, although this advice is being relied on now, for instance by Bours, it’s based on the TTIP documents from July 2015, and things have moved on since then. The European Parliament will not agree to a TTIP investor dispute settlement system based on less transparency, or fewer safeguards for European public interests. It is pushing for the exclusion from TTIP for national health services that Bowsher recommends.

For the NHS, it is true that those parts that now function like private companies are in principle already covered by EU competition law. But that law is interpreted flexibly, and there are many exceptions in it for public services – which means that the impact of EU law on the functioning of the NHS is muted.

Staffing shortages

In a very detailed analysis of legal cases, legislation, and practice of national competition authorities, Hervey and McHale found these flexibilities apply to the areas most central to the operation of health systems across the EU. National social insurance arrangements, hospitals, laboratories, blood and tissue banks, pharmaceuticals pricing, and so on are barely touched by EU law in practice.

All of this suggests that the public services protections in EU law will be put into the TTIP. And, the UK government’s own view is that the balance of competences in health, which leaves the arrangements for national health services to national governments, is appropriate.

Then there’s the matter of the health and social care professionals from across the EU who work in the NHS. Two points are salient here.

Second, while compared to other countries the UK is much more reliant on foreign doctors, nurses and other health professionals, the vast majority of these are not actually from the EU

First, the fact that European medical qualifications must be recognised in all member states by EU law does make it easier for European health professionals to work in the NHS. But at the same time changes to EU law in 2013 allowed more stringent language testing of migrant workers, and this was imposed in the NHS to make sure that European health professionals can provide appropriate service.

Second, while compared to other countries the UK is much more reliant on foreign doctors, nurses and other health professionals, the vast majority of these are not actually from the EU. The latest available figures from 2012 show that less than 4 per cent of NHS staff are from EU countries; while the GMC’s own data show that 6 per cent of GPs are from the EEA. If the UK votes to leave the EU, their right to work in the UK will be less clear, and some may leave because of the uncertainty.

This might create staffing shortages in certain areas of the NHS, but recruitment from other countries would probably make up the shortfall.

Finally, what about the over 2.2 million UK citizens living in other EU member states, many of whom are retired people living in warmer parts of Europe? At present, they enjoy access to health care in their host country under very long-standing EU rules which coordinate national health systems.

The UK could, of course, negotiate such coordination with other countries in the EU on a country-by-country basis. But while it does so, the position of those citizens will be unclear.

Especially if they are concerned about their health, these older and more vulnerable patients may well choose to come home. This would further increase demand for care in the already struggling NHS.

Tamara Hervey is Jean Monnet professor of EU law at the University of Sheffield. This article was co-published with The UK in a Changing Europe.