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Healthcare (International Arrangements) Bill - Committee (1st Day) (Continued)

– in the House of Lords at 8:30 pm on 19th February 2019.

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Clause 3: Meaning of “healthcare” and “healthcare agreement”

Amendment 11

Moved by Lord Patel

11: Clause 3, page 2, line 13, at end insert “but excludes care related to treatment for types of dementia”

Photo of Lord Patel Lord Patel Chair, Science and Technology Committee (Lords)

My Lords, if my first amendment in the first group was a wrecking amendment, this is more like a slightly frivolous amendment. It seeks an explanation of the Government’s intentions and relates to Clause 3, which is headed “Meaning of ‘healthcare’ and ‘healthcare agreement’”. The clause states:

“In this Act—

‘healthcare’ means all forms of healthcare provided for individuals, whether relating to mental or physical health, and includes related ancillary care”.

That is fair enough—it includes mental and physical health—but there are conditions, such as some dementias, which are not progressive, as Alzheimer’s is, which could have mental and physical overlay. Does this include dementias or not? That puts a completely different context to the cost that might be involved. I seek clarification. When the clause states “mental or physical health”, does that include mental health or physical health that may also be overlaid on dementias?

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

My Lords, I thank the noble Lord, Lord Patel, for moving Amendment 11 and highlighting the importance of an appropriate definition of healthcare in the Bill.

We have adapted the definition set out in the Health and Social Care Act 2012 to include the additional element of ancillary care, as the noble Lord noted. This is to reflect where current arrangements provide for ancillary costs, such as travel costs, which do not strictly fall within the definition of healthcare. This would be for use in such circumstances as in France, where residents are reimbursed with a contribution to their travel costs when attending healthcare appointments. The definition of healthcare in Clause 3 ensures that we can implement arrangements that are based on the current EU arrangements, if negotiated in future.

The noble Lord indicated that this is a probing amendment and, as a former clinician, he will understand that limiting the definition to exclude certain conditions would be inappropriate, as it is not in the UK’s jurisdiction to determine what level of access to healthcare should be provided in another country. It is up to each country to determine what is available as part of its public healthcare system, as we do here in the NHS. The government definition would enable individuals to access healthcare on those terms under reciprocal healthcare agreements. The Government are committed to ensuring access to healthcare in line with current arrangements, and that UK nationals can continue to benefit from them, as they do now.

The Government have been clear during the passage of the Bill—this alights at the heart of the noble Lord’s question—that access to social care in England would not be provided through any reciprocal healthcare agreement. However, it is worth noting that some types of treatment related to dementia care can be medical in nature and may be provided by the NHS. As the noble Lord knows, in the UK, we treat all people with any physical or mental health condition. This demonstrates the complexity of the issues that narrowing the scope of such an important definition in the Bill may afford. I hope the noble Lord, Lord Patel, will therefore agree that the definition used in the Bill is the most sensible. However, I thank him—he is a noble friend—for raising this important issue. With the assurances I have given, I hope he will feel able to withdraw his amendment.

Photo of Lord Patel Lord Patel Chair, Science and Technology Committee (Lords)

My Lords, I thank the Minister for her comments. I raised this issue only to make sure that whenever such agreements are made, it is borne in mind that there may be implications for other conditions not directly regarded as mental or physical health conditions; for example, an increasing number of people have dementia. On that basis, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendments 12 to 14 not moved.

Clause 3 agreed.

Amendment 15

Moved by Baroness Wheeler

15: After Clause 3, insert the following new Clause—“Annual report on the cost of healthcare agreements(1) The Secretary of State must by the end of the period of 12 months beginning with the day on which this Act is passed and every year thereafter lay before Parliament a report setting out all expenditure and income arising over the preceding year from each healthcare agreement implemented under this Act.(2) The annual report laid under subsection (1) must include, but is not limited to—(a) all payments made by the government of the United Kingdom in respect of healthcare arrangements for healthcare provided outside the United Kingdom to British citizens;(b) all payments received by the government of the United Kingdom in reimbursement of costs of healthcare provided by the United Kingdom to all non-British citizens;(c) the number of British citizens treated under healthcare agreements outside the United Kingdom;(d) the number of non-British citizens treated under healthcare agreements within the United Kingdom;(e) any and all outstanding payments owed to or by the government of the United Kingdom in respect of the provision of healthcare outside the United Kingdom made before the passing of this Act; and(f) any and all administrative costs faced by NHS Trusts in respect of implementing healthcare agreements.(3) The information required under subsection (2)(a) and (b) must be listed by individual country in every annual report.”

Photo of Baroness Wheeler Baroness Wheeler Opposition Senior Whip (Lords), Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords)

My Lords, we have pursued this matter in the Commons and this House because it is vital to be clear about how the Government will report annually to Parliament on the expenditure and income from each healthcare agreement implemented under the Act and what information will be provided. We are talking about potentially multiple and complex agreements, the costs and implications of which will not be known until the technical and operational provisions for the agreements are settled.

We have consistently been told by the Government that reporting processes are already in place. At Second Reading, the Minister assured the House that,

“all international healthcare agreements will be subject to the scrutiny route considered most appropriate by Parliament”.—[Official Report, 5/2/19; col. 1489.]

As the amendment sets out, our clear view is that a report should be produced,

“by the end of the period of 12 months beginning with the day on which this Act is passed and every year thereafter … setting out all expenditure and income”,

and the number of people treated under each healthcare agreement implemented under the Act by country. It should also detail the costs incurred by NHS trusts in administering these agreements and any outstanding payments owed to the UK.

Since it is not possible to know the detail of these healthcare agreements in advance, we cannot assess the likely costs and system implications. The detail of the impact assessment on costs is woefully inadequate. Its assessment of the annual cost of establishing reciprocal healthcare agreements of £630 million takes no account of inflation, future medical developments or fluctuations in exchange rates. Moreover, the impact assessment’s contention that the costs might even be less than the current costs is just not credible. Greater clarity on the cost of new healthcare agreements in the context of the presentation of a single report on the full range of schemes and arrangements is essential.

So far, the Government’s response has been to insist that existing reporting arrangements will provide sufficient scrutiny and detail, whether through the Public Accounts Committee, the National Audit Office, similar bodies or existing processes for reporting and scrutinising international treaties. However, none of those would provide the scrutiny and strategic overview required in the circumstances we face. The Minister has, however, provided a chink of light. In paragraph 41 of her letter to the Delegated Powers Committee, dated 30 January and published in its report of 14 February, she says that,

“the Government has heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements”.

It also says that,

“the Government is committing to issue an annual written ministerial statement on the operation of reciprocal healthcare arrangements. This statement will be published as soon as is practicable after the end of each financial year to allow for accurate financial reporting”.

Can the Minister provide further details on this proposed statement?

For the sake of clarity and the record, the Minister commits in that letter that the statement will provide, first:

“Information on the expenditure and income of healthcare provision overseas as a whole. This would include aggregated expenditure/income for the annual year, as well as country by country sum of expenditure/ income”.

We are also promised:

“An update on the operation of arrangements. This statement could identify areas of successful operation or where arrangements are being improved to promote efficiency”.

Finally, we are promised that information will be included on:

“The strategic direction of reciprocal healthcare arrangements. This would be a statement on the future priorities for the current operation or a statement of where the UK is engaging with other countries to establish new arrangements”.

Certainly this is a step in the right direction towards the information and accountability needed, but can the noble Baroness answer some specific points concerning the Written Ministerial Statement that we have raised in our amendment?

Will it include full details of the payments made by the UK on healthcare arrangements for healthcare providers outside the UK to British citizens? Will payments received by the UK in respect of the investment costs of healthcare provided to all non-British citizens be recorded? Will the number of British and non-British citizens treated under healthcare agreements inside and outside the UK be included? Will any and all outstanding payments owed to or by the UK Government related to the provision of healthcare outside the UK be made before the passing of this Bill? Most important, as we heard in earlier amendments, can we be assured that any or all of the costs faced by NHS trusts in respect of implementing healthcare agreements will be shown, so that we can be clear not only on the costs but also that front-line staff are not having to spend additional time administering these schemes?

Our amendment would give Parliament its rightful role in scrutinising the schemes and, in particular, the Government’s delivery on collection and reimbursement. It is perfectly reasonable to expect healthcare agreements, once they have been reached, to be reported back to Parliament annually. Parliament cannot be expected to grant a blank cheque. An annual report on the costs and arrangements for the new healthcare agreements would considerably increase accountability within the systems, exploring changes in both the expenditure and the scope of healthcare provision arising from the loss of access to reciprocal arrangements after Brexit. I beg to move.

Photo of The Earl of Dundee The Earl of Dundee Conservative

My Lords, I support Amendment 15, which proposes a new clause and has been moved by the noble Baroness, Lady Wheeler, on behalf of her noble friend Lady Thornton. As I indicated at Second Reading, in another place the Government may have slightly prevaricated on this issue by hiding behind the skirts of obvious current circumstances. While they say that the Bill should not prescribe a particular timetable for reporting back until new healthcare plans have come to light, they also claim that a number of reporting processes can anyway be deployed instead.

However, is there not a simple and necessary corollary to this? If we really want to increase confidence and transparency, why not just make sure that Parliament is given the relevant healthcare facts and figures at least once a year? If the Government should then wish to report additionally through other means, they are always free to do so.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

My Lords, I echo the points made by the two previous speakers and will just point to one further reason why having an annual report with this level of detail is important for the future of monitoring any reciprocal agreements. In 2016-17 the National Audit Office published its report on the recovery of the costs of NHS treatment for overseas visitors, which makes fascinating reading. It includes how the amounts recouped, whether by reciprocal agreement or direct payment by the patient, had increased and by which type of trust. It is clear that unless that sort of detail is monitored regularly, we will not understand the consequences of changes to reciprocal agreements. I propose to talk more about this report in the next group of amendments, but that transparency means that we need an understanding of exactly how having these agreements will work and if, as was apparent when the report was written, more than 22 trusts never reported any cases under the EHIC scheme. It shows that there is an enormous differential between trusts in how they collect money owed to the Government in one form or another.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, perhaps I may add briefly to the very important comments made by the noble Baroness, Lady Brinton. I am concerned about not only how the data is collected in this country but how we can verify costs that may be charged to this country by other countries with which we have reciprocal arrangements. One of the difficulties with healthcare costs is the way they are calculated. There may be individual costs of bits of equipment and staff time, but then there will be overall management costs, which may simply be divided up among the number of patients or even in a more arbitrary way. I am concerned, and seek assurance from the Government, that verification procedures will be put in place to make sure that bills received by the UK fairly represent the terms of an agreement.

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip) 8:45 pm, 19th February 2019

My Lords, in Amendment 15 the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Finlay, and my noble friend Lord Dundee raise an important issue on the importance of financial reporting and facilitating parliamentary scrutiny, which I can assure noble Lords that the Government are committed to ensuring. As the noble Baroness, Lady Wheeler, said, this was also the subject of Labour Front-Bench amendments in the Commons and is an issue that the Government have carefully considered. I would like to reassure the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee that—as the Minister, my noble friend Lady Blackwood, set out at Second Reading—the Government are committed to openness in managing public money. I understand the desire for transparency in this area. Noble Lords can be reassured that, as indicated by the noble Baroness, Lady Wheeler, there are existing robust annual reporting processes, overseen by the Comptroller and Auditor-General, that are used today and cover reciprocal health and other departmental spending.

Expenditure by the Department of Health and Social Care relating to EU reciprocal healthcare arrangements is currently published to Parliament in the form of annual resource accounts, and this will continue. This reporting allows for scrutiny by both Houses of Parliament, as well as the Public Accounts Committee. As now, the department’s future expenditure on reciprocal healthcare will be subject to the existing government reporting requirements. However, the Government have heard the need for greater transparency in our administration and implementation of reciprocal healthcare arrangements. The Government are also committed to transparency and the prudent use of public money. This is why we have committed to going beyond the current reporting requirements.

As explained by the Minister, my noble friend Lady Blackwood, at Second Reading, the Government have committed to issuing an annual ministerial Statement on the operation of the reciprocal healthcare arrangements. The noble Baroness, Lady Wheeler, asked what this ministerial Statement would include. I am afraid that I cannot comment on that, because it is subject to any arrangements we enter into with the countries concerned. The Statement will be published as soon as is practical at the end of each financial year. It will include, but will not be limited to, reporting on the expenditure and income of reciprocal arrangements as a whole. This could include aggregated expenditure and income for the year, as well as country-by-country sums of expenditure and income. It could also provide an overview of the operation of arrangements, identifying areas of successful operation. I hope that that allays the fears that the noble Baroness, Lady Finlay, expressed. The types of reciprocal agreement entered into will determine the content of the Statement, as I said. However, I am happy to meet the noble Baroness to discuss these details further.

I hope that the noble Baroness, Lady Wheeler, and my noble friend Lord Dundee feel reassured on our commitment to ensuring that there are sufficient and appropriate checks and balances in place on reciprocal healthcare agreements and agree that it is not necessary to set out in the Bill detailed provisions on reporting. In any case, as I said, the frequency and detailed content of a financial report should and could only be determined once reciprocal healthcare agreements have been made. Currently, the UK and other EU member states are able to collect data and report both nationally as well as at EU level, as provided for in the relevant EU regulations.

The department is currently working to ensure that UK nationals can continue to access healthcare in the EU in the same way as they do now, either through an agreement at EU level or through agreements with relevant member states. In either case, we will have to agree how eligibility is evidenced, the way that and frequency with which information is exchanged and the reimbursement mechanisms that will govern these new agreements. Each of these could differ from country to country. Such agreements will have to take into account the operational possibilities and limitations of each contracting party to ensure the smooth operation of reciprocal healthcare arrangements. This should include how NHS trusts in the UK can evidence eligibility for the treatment of non-UK citizens in the most efficient and least burdensome manner. Once these administrative details are known, the Government will be able to confidently speak to the specific measures that can be reported for each country. It is therefore unnecessary to set out detailed reporting provisions in the Bill for aspects that are subject to negotiations.

It must not be forgotten, however, that regardless of the specifics of any arrangements entered into, as with all departmental expenditure, reciprocal healthcare costs are and will continue to be authorised by the Treasury supply process and included in the department’s annual estimates, as well as being included in the annual resource accounts, which, as I said, are audited by the Comptroller and Auditor-General.

The noble Baroness, Lady Finlay, raised this issue, and it was raised earlier this evening. Let me be very clear that we do not need new front-line NHS processes to charge visitors and tourists from the EU, either directly or via reciprocal healthcare arrangements. We already have processes in place for non-EU visitors. After exit day, instead of identifying EU visitors for the purposes of EHIC claims, they will be identified for the purposes of whether they are chargeable directly or covered by a reciprocal healthcare arrangement, in the same way as non-EU visitors are currently identified. They will then be charged as appropriate.

I will end by saying this. As well as the auditing that will be done by the Auditor-General, as I have mentioned, the Government have committed to lay before the House an annual ministerial Statement, which will provide an additional check and balance on the Government’s reciprocal healthcare arrangements. I hope that I have a given sufficient assurances to noble Lords, and that the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Can the noble Baroness confirm whether she is absolutely confident that the current systems in place to pick up those coming from abroad who should not be treated on the NHS and who should be charged for their care are 100% effective? How many of those systems are not effective? I am concerned that, with a potentially increased number of people coming into the system, any system that is already not functioning well will just fall over unless more people are put in to administer it.

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

My Lords, no one can ever be 100% confident, but we are putting in place robust charging mechanisms. Each trust has an accountable person to look at how charging is working. We are working very closely with NHS organisations to ensure that, where charging needs to take place, it is done effectively and efficiently.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

I want to go back to the issue of the report. The noble Baroness read out a litany of different places where different items would be reported. Is there some benefit to having it all in one place? I do not know about other noble Lords, but I would be quite content if the annual ministerial Statement incorporated what is set out in the proposed new clause in the amendment—the information that parliamentarians think they want. But I wonder whether all parliamentarians, or anybody outside, would know all the different places to look for the odd sentence here and there in reports once a year.

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

I fully understand the point made by the noble Baroness, Lady Brinton. I always believe in a simplified place, but those are the accounting rules that we have for government and therefore they remain. We have gone the additional mile by saying that we will place on record a ministerial Statement at the end of each financial year and that this will include the areas I have indicated.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat Lords Spokesperson (Health)

The Minister referred to arrangements being put into NHS organisations to make this happen—but what about GP practices? If you talk to GPs, they will tell you that they are in private partnerships. Presumably the Government are talking to the Royal College. The last time I had a conversation with GPs was five or six years ago, when they were totally averse to collecting money for their services. Can the Minister clarify whether things have changed?

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

I can clarify that NHS trusts are funded on the basis of existing agreements and will provide additional funding for any new agreements reached within the powers of the Bill. The same thing will apply to GPs where charges need to be made for people who are not entitled to that care and do not fall within the reciprocal arrangements that we have in place. The procedure would apply as it currently applies and such people would be charged as appropriate. If they are part of the reciprocal agreements that we have, whether bilaterally or multilaterally, such charges will not be incurred.

Photo of Baroness Wheeler Baroness Wheeler Opposition Senior Whip (Lords), Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords)

I thank the Minister for her response. Whichever way you look at it, it is complex system for reporting information across a wide range of different sources. The point made by the noble Baroness, Lady Brinton, about having the information in one place as part of the ministerial Statement needs to be pursued, and I hope that the Minister will do that. I noted her agreement to discussing it or exchanging correspondence about it, but important matters need to be set out in the ministerial Statement—albeit that the information is presented elsewhere—in order to reassure and inform us about how these agreements are working. With that proviso, I withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by Baroness Brinton

16: After Clause 3, insert the following new Clause—“Cost recoveryThe Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act.”

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

My Lords, I am moving this amendment on behalf of the noble Baroness, Lady Thornton, and myself.

Amendment 16 seeks to tackle the difficult issue of cost recovery—which we started to debate in the previous group of amendments—and states simply:

“The Secretary of State must grant funding to NHS Trusts sufficient to meet the costs associated with administering healthcare agreements under this Act”.

I refer again to the excellent National Audit Office report, Recovering the Cost of NHS Treatment for Overseas Visitors, which looks back over the preceding five or so years. It becomes apparent on reading the report the point at which Governments and then the NHS started to seriously recover the costs which are due.

However, within that, it is very noticeable that different trusts have different abilities and resources available to collect these costs. London has 44% of EEA visitors and records 35% of the value of all EHIC cases in this country. Even within that, only 10 of the 150 acute and specialist trusts accrued half of all charges made to visitors from the EEA. So we have a very small number of very large hospitals which are expert in collecting and recovering these costs. Ten trusts were responsible for more than a quarter of the amounts, just under the EHIC scheme. As I said, 22 trusts did not report any cases under the EHIC scheme at all.

The NAO report refers to the capacity of trusts to administer these schemes. In the debate this afternoon we discussed “usually resident” and how it is defined. After further digging it transpired that in the NHS there are 32 identifiers that clerks need to go through to establish whether somebody is normally resident in the UK. So already a large bureaucracy is being added on to an A&E department or any other part of a hospital.

The NAO report has a helpful flow chart to show where the pressures come within each NHS trust in working out cost recovery. While one could wish it were otherwise, one can understand how small, hard-pressed district hospital trusts struggle to cover the administrative costs to make those decisions and then to charge.

I am grateful to the BMA for its helpful briefing. It has a particular concern, which the noble Baroness, Lady Manzoor, referred to in responding to the previous amendment, about the possible number of different reciprocal arrangements if we cannot get a broad EU reciprocal arrangement post Brexit. One of the worries is that we may end up having to recoup different levels of resource. Will that requirement be made on an individual trust basis or will it be administered by the NHS in a fairly easy manner? I can see that, if there were 27 different arrangements alone for the EU before we even start to get into the wider world—we had that debate earlier—it would completely overwhelm some hospitals.

We therefore tabled this amendment because it seems clear that we have to have some support for trusts which require it for accounting costs that are not directly related to treatment. It would also ensure that in those areas where there is substantial demand from overseas visitors using those facilities, the trusts are funded to cater for those numbers with clinical staff. That does not happen at the moment, either.

I move on to the point about the arrangements that exist with the non-EEA countries. There is a guarantee of contributions for a non-EEA incentive scheme where commissioners, the NHS and the department share the risk of non-payment between trusts and commissioners. In light of a no-deal Brexit, when suddenly we would face a considerable amount of new non-EEA arrangements, I wonder whether the Minister can provide a guarantee that that arrangement will continue. I know that it works at the moment, but it is likely to be put under considerable pressure because presumably at that point, without any new reciprocal arrangements in place, hospitals will have to charge anybody who comes from the EEA in the event of a no-deal Brexit—and in the event of no transition agreement, which is what we would expect to happen.

Finally, I will make the point again about administrative costs. The NAO report says:

“When reporting EEA visitors, trusts incurred administrative costs in recording details”,

of the card,

“for which they were not previously reimbursed. The Department received the income relating to these patients. When charging visitors from outside the EEA, trusts relied on patients, rather than commissioners, making payments. Difficulty collecting payments meant that trusts collected less than the amount they invoiced”.

Clearly, some of this is covered by the guarantee that I have just referred to, which is extremely helpful. But the other worry is that trusts may, frankly, turn a blind eye if they are suddenly deluged with very large quantities of people under the threat of a no-deal Brexit. I look forward to the Minister’s response and I beg to move.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 9:00 pm, 19th February 2019

I should declare my interest as a past president of the BMA and a current BMA member, because I would like to refer to its brief on this. The BMA has indeed highlighted the potential problem, as the noble Baroness, Lady Brinton, set out, of having 27 reciprocal arrangements all containing different terms. This will inevitably put pressure on front-line NHS staff, who will be expected to be familiar with and administer these different arrangements.

There is an additional problem that the association has highlighted, however: if the 190,000 UK state pensioners who are signed up to the S1 scheme and living in the EU need to return to the UK to receive care, health services will face drastically increased demands and costs. The Nuffield Trust has calculated that if those individuals return to the UK for treatment, that could incur additional costs to health services of between £500 million and £1 billion per annum, and require an additional 900 hospital beds and 1,600 nurses to meet demand. That is quite apart from the additional medical and allied healthcare professional staff, and all the clerical and managerial staff. The potential pressure on services, which are already stretched to bursting point, cannot be ignored.

As the noble Baroness, Lady Brinton, said, the difficulty is in how the money is recouped, where it goes and who can use it, as well as in accounting for it. While we are talking about cost recovery, I shall pick up on general practitioners. It is difficult to know where that money goes and to whom it is reported. If it is the clinical commissioning group, would it be expected to bill the person, who may well have disappeared from the UK by the time any such processes go through? Receptionists are not familiar with billing. The complexity of administering a multiple arrangement scheme cannot be ignored.

My final question goes back to one I have raised previously about the devolved Administrations. Given that there are now different healthcare systems in the four countries of the UK, each administered and managed slightly differently, what discussions have the Government had to date about recouping costs both as they stand and in the event of a large influx of pensioners currently living and receiving treatment abroad?

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health)

My Lords, I knew that the noble Baroness, Lady Brinton, would make a very thorough job of moving this amendment, so I was not just being lazy but was making sure that the Committee got the best person to introduce it. The noble Baroness mentioned the BMA’s brief, to which I shall refer. While the amendment refers to NHS trusts, any funding incurred by primary care providers in administration of the new healthcare arrangements should also be met. As a member of a CCG, I think that probably means CCGs. That is quite important.

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip)

My Lords, I am grateful to the noble Baronesses, Lady Thornton, Lady Brinton and Lady Finlay, for tabling Amendment 16 and providing the opportunity to address two important issues: the processes we have in place to recover costs from overseas visitors and how we support the NHS to deliver services to people covered by reciprocal healthcare agreements. As the noble Baroness, Lady Finlay, noted, there is complexity in the system, but this amendment proposes a new obligation upon the Secretary of State for Health to provide sufficient funding to the NHS to administer reciprocal healthcare agreements implemented using the powers in the Bill.

I reassure all noble Lords that the Government are committed to ensuring that the NHS is funded and fit for the future. Through the NHS long-term plan and the historic commitment of an extra £20.5 billion a year, we are working to make sure the NHS is fit for future patients, their families and NHS staff.

The noble Baronesses, Lady Brinton and Lady Finlay, raised two issues. They asked whether there will be 27 different agreements that require implementation. Our intention is to reach agreement with the EU so that there will be one agreement to implement. If agreements are negotiated with individual countries, it will depend on the content of the agreement being implemented, but I stress that we do not need new systems to implement them. We are not expecting costs to be much greater than at present. Every hard-working taxpayer plays a part in supporting our much-loved NHS, so it is only right that overseas visitors also make a contribution to the health service, whether that be individually, through the immigration health surcharge or through their Government reimbursing the treatment costs incurred.

The NHS has been responsible for delivering the current reciprocal healthcare arrangements for as long as they have been in operation and it has been sufficiently resourced to do so. Funding is distributed to NHS providers as part of general allocations. These support all the administrative costs associated with patient care, not just any costs associated with administering reciprocal healthcare agreements. That applies to clinical commissioning groups, which then apply funding to GPs.

We have robust administrative processes in place to recover costs from overseas visitors. These are managed by overseas visitor managers and their teams, who identify whether visitors are chargeable or are directly covered by an existing reciprocal healthcare arrangement.

Perhaps I may further reassure noble Lords that there are benefits for NHS providers who deliver services to those currently covered by EU reciprocal healthcare agreements. NHS providers receive an EHIC incentive payment of 25% of the tariff for the treatment provided to an overseas visitor covered by an EHIC. Trusts can reinvest these incentives in front-line services, meaning that we can continue to protect the most vulnerable in society and ensure that everyone receives urgent care when they need it. This is a scheme that we would certainly want to continue.

The Government have also made significant progress on charging overseas visitors and recouping funds where appropriate. However, as I indicated on the previous amendment, we want to go further—we are not quite there yet. Since 2015, we have increased identified income for the NHS with reciprocal arrangements by 40% and directly charged income has increased by 86% over the same period. Although we are satisfied that we are moving in the right direction, as I said, there is more to be done. That is why we are working with NHS Improvement to drive further improvements in the practice of cost recovery. A bespoke improvement team is working with over 50 NHS trusts to provide on-the-ground support and to share best practice.

I understand and commend the spirit behind this proposed new clause—we all want to ensure the best for our NHS—but it seems that it would replicate existing duties on the Secretary of State for Health. As the noble Baroness is aware, the Secretary of State is under an existing duty to promote a comprehensive health service, available to all who need the support that it provides. This duty encompasses ensuring that the NHS is funded for the services that it provides. Funding to provide treatment for overseas visitors is, and will continue to be, distributed to NHS providers as part of general allocations.

Further, I reassure noble Lords that any future reciprocal healthcare agreements that the UK implements through this Bill will be subject to thorough consideration and will need to take into account the existing duties on the Secretary of State to promote a comprehensive health service available to all who need the support that it provides.

I hope that my explanation has provided further reassurance to noble Lords that the Government are absolutely committed to protecting the NHS, and that the noble Baroness, Lady Brinton, will feel able to withdraw the amendment.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

I am grateful to the noble Baronesses, Lady Finlay and Lady Thornton, for their contributions to this brief debate, and indeed to the Minister for her response, even though I am somewhat disappointed by it. The point that all three of us were trying to make is that we are asking not for new processes but for reassurance that the costs will be reimbursed to trusts. As the Minister said, there is a general allocation, and one thing that we have discussed repeatedly since Second Reading is that there is a strong likelihood of substantially more non-EEA-type payments if there is a no-deal Brexit or if there are loads of different reciprocal arrangements that will make life very complex for hospital trusts and primary care providers.

As a brief illustration, currently when a non-EEA patient pays, half of it goes to the commissioner and half goes to the trust. The commissioner then pays half of it back to the trust and so it goes on. It is a complex arrangement. If we suddenly have 27 different arrangements just to cope with life after the EEA or with a no-deal Brexit, I can see that it will be very complex. It would be easy for NHS England—and, indeed, the Government—to miss trusts being unable to cope with the deluge of different arrangements they have to support.

At this stage, this is very much a probing amendment. I am happy to withdraw it this evening but I reserve the right to bring it back in the future. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendments 17 to 19 not moved.

Amendment 20

Moved by Baroness Thornton

20: After Clause 3, insert the following new Clause—“Duty to provide information about changes to reciprocal healthcare arrangements (1) As soon as this Act is passed, the Secretary of State must prepare guidance to assist—(a) British citizens; and(b) EEA and Swiss citizens living in the United Kingdom;in understanding the effect of the withdrawal of the United Kingdom from the European Union on reciprocal access to healthcare, and publish the information on a website.(2) The Secretary of State must take all reasonable steps to provide a copy of the information to any bodies appearing to the Secretary of State to represent the interests of those who may be significantly affected by changes to reciprocal healthcare arrangements including—(a) NHS Trusts;(b) the Royal College of General Practitioners;(c) British embassies in the European Union; and(d) other bodies the Secretary of State considers appropriate.(3) The information must include—(a) the date on which current reciprocal healthcare arrangements end;(b) the date on which any new agreement is expected to come into effect;(c) information about where people can access help and advice about healthcare costs; and(d) any other information that the Secretary of State considers appropriate.(4) In making arrangements for the purposes of providing information under this section the Secretary of State must—(a) have regard to the needs and characteristics, in respect of the provision of information, of persons to whom the information is to be provided; and(b) consider whether, having regard to those needs and characteristics, it is appropriate to provide any of the information to any of those persons otherwise than in the way in which it would normally be provided.”

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health)

My Lords, in moving Amendment 20, I will speak also to my Amendment 21 and to Amendment 43, having notified the Minister that I intended do so. These amendments are all concerned with protecting the interests of individual travellers, residents and their families who depend on reciprocal healthcare arrangements and could be affected by the UK leaving the EU without an agreement in place; so all three amendments are about leaving with no deal.

Amendment 20 addresses the duty to provide information, Amendment 21 addresses the issue of costs to British citizens, and Amendment 43 prevents the Secretary of State making regulations on healthcare agreements unless there is a withdrawal agreement with the EU, or the House of Commons has explicitly approved leaving the EU with no deal—the Minister might be familiar with this amendment since it has appeared in other Brexit legislation.

If we crash out, it seems unlikely that the necessary deals with 27 countries to provide reciprocal healthcare payments will be in place; the Minister admitted as much at his briefing, which we attended, and he suggested that we should get health insurance. It might take time to sort out our healthcare, so we have tabled three amendments which we hope will assist this process.

First, we believe that the Government should publicise the changes and provide guidance to people about the impact on their lives, including insurance requirements. That means more than just posting something on the NHS England website. The amendment does what I know that Ministers—and certainly Bill teams—do not like: it puts down a list of places where the changes should be publicised.

Secondly, the Government should have arrangements in place to reimburse British citizens for healthcare costs incurred outside the UK—which would previously have been covered by EU arrangements—for a period of up to six months, until the new healthcare agreements come into effect. This is an obvious, basic protection that should be in place to avoid the risk that our citizens are charged for healthcare because of even two or three weeks of turmoil or churn while agreements are not in place.

Thirdly, Amendment 43 is about how to safeguard reciprocal healthcare in a no-deal situation. It mirrors the amendment that we tabled to the Trade Bill and is about accountability to Parliament. I will be interested to receive the Minister’s reaction to these three proposals, which are about protecting people’s interests in a no-deal situation. I beg to move.

Photo of Lord Lansley Lord Lansley Conservative

In so far as the noble Baroness has referred to Amendment 43, which we might otherwise reach on Thursday, I completely understand the motivation, which we have seen elsewhere, to make no deal so intolerable a prospect that one does not want to enter into it—I do not want us to do so and neither do the Government.

If we were to do the responsible thing and pass this legislation before 29 March, so that we have it in place, but with such an amendment within it, that would be extremely ill-advised. If there were no memorandum of understanding with other countries, leading to a bilateral agreement, the result may be that even the regulations that are going through the House would not enable the Secretary of State to have the power to pay for healthcare for UK citizens in other European countries. If we are going to give people reassurance—the Government have an obligation to do that and Amendment 20 says we should do that—we can do so only on the basis of the law as it is. If this legislation were to have such a poison pill added to it, I am afraid that it would make it impossible for civil servants to give the degree of reassurance that we should be giving people.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

I am grateful that I am able to follow the noble Lord, Lord Lansley, because I think the point is made that this is very much a probing amendment. If the Minister gave reassurances that the contents of the amendment would be the practice followed by the Department of Health and Social Care, many of us would be reassured.

We spoke earlier about kidney patients on dialysis, but let me give another illustration of a family very close to me, who have a two year-old who requires an overnight ventilator. If they want to go anywhere outside the EEA, the cost of medical insurance for a small child on an overnight ventilator is more than the flights for the entire family—so they go to Europe. At the moment, they cannot book their summer holiday because their insurers say that they do not know or understand the arrangements, and of course we have no idea whether there will be any reciprocal arrangements. Families such as this will want access to advice very speedily if we are in the unfortunate position of a no-deal Brexit. By the way, following the collapse of the Malthouse compromise, I gather that the EU has said today that it is much more convinced that there will be a no-deal Brexit. Let us hope that it is wrong.

Although I understand the concerns of the noble Lord, Lord Lansley—the noble Baroness, Lady Thornton, may have different views—it would be good to have reassurance from the Minister that many of the things proposed in these amendments are exactly what the department will do and that it will be able to reassure the House and the wider public in the next few weeks.

Photo of Baroness Blackwood of North Oxford Baroness Blackwood of North Oxford The Parliamentary Under-Secretary for Health and Social Care

I am very grateful to the noble Baroness, Lady Thornton, for Amendments 20 and 21. As the noble Baroness, Lady Brinton, has just said, I very much hope that I can reassure the Committee on these points. The noble Baroness is absolutely right that within the broader debate on the Bill, where noble Lords have valid concerns, we cannot forget that the Bill is being brought forward to protect individuals. These points were also raised earlier, by the noble Baroness, Lady Finlay, and the noble Lord, Lord Foulkes.

Speaking first to Amendment 20, I wholeheartedly agree with the spirit of the noble Baroness’s amendment. It is absolutely right that the Government provide individuals with relevant, timely information relating to their healthcare access after EU exit. The Government have already taken steps to inform individuals of what could happen to reciprocal healthcare in a deal or no-deal scenario. As a matter of course, we will continue to provide up-to-date information to individuals as soon as it becomes available.

The Government have issued advice via GOV.UK and NHS.UK to UK nationals living in the EU, UK residents travelling to the EU and EU nationals living in the UK. The advice provided on these websites explains how the UK is working to maintain reciprocal healthcare arrangements, but this depends on negotiations as they proceed. It also sets out options on how people might access healthcare under local laws in the member state they live in if we do not have a deal or a bilateral agreement in place, and what people can do to prepare, although we are determined that this will not happen. These pages will be updated as information becomes available. Our advice to people travelling abroad must continue to be to purchase travel insurance, which we already recommend, even though I recognise the challenge for those who have long-term conditions—in this debate, I have already expressed the challenge I myself experience.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

The Minister may recall that I pointed out at Second Reading that the Liberal Democrats had done some mystery shopping for travel insurance. It is not just about insurance for people who have special medical needs. Most of the insurers approached said they could not yet provide anything, because their insurance amounts would be based on whatever the final outcome is. Most of them, including very large insurers, were not prepared to tell potential travellers that they would cover them at all. The situation is much more serious and affects more than a handful of people with difficult medical conditions.

Photo of Baroness Blackwood of North Oxford Baroness Blackwood of North Oxford The Parliamentary Under-Secretary for Health and Social Care

I am aware. This is a really challenging point. That is one of the reasons why we are determined to get the powers in the Bill, those in the SI and the best possible reciprocal healthcare arrangements through. That is one of the reasons why I am working so hard to make sure that we can strengthen the Bill as much as possible.

In addition to the point I just made, the Government are in constant dialogue with system partners throughout the health and social care system, including NHS England and NHS trusts, to ensure that the UK is prepared whatever the outcome of EU exit. I know noble Lords just had a debate on this on the previous group of amendments, so I will not take up too much time on it now. Looking to our expat communities in the EU, the DHSC and the FCO are working together to ensure that embassies and consular services can provide individuals with relevant information and support regarding their healthcare entitlements after EU exit, especially those who might need individual and specialised support.

I fully support the spirit of the amendment that the noble Baroness, Lady Thornton, tabled. I will ensure that we continue to take those actions to provide individuals with the information that they need. I hope that she has been reassured by this. If the noble Baroness, Lady Brinton, has any further concerns on this point I would be very happy to meet her and discuss detailed ways in which we can improve the service we are providing, given the situation in which we find ourselves.

Amendment 21 suggests using the Bill to offer financial support for British citizens to help them with healthcare costs should the UK leave the EU without a deal and without other agreements in place. It is important that I am clear about what support the Government can realistically offer, and why we are unable to go quite as far as the noble Baroness proposes.

The Government’s intention is to continue current reciprocal healthcare arrangements with member state countries in any scenario as they are now until 2020. However, healthcare for UK nationals who live in or visit other countries is ultimately for the individuals themselves or foreign authorities. We recognise that the UK can play an important supporting role by brokering reciprocal healthcare agreements, which we very much hope and intend to do. We have made very clear and generous offers to all countries in the EU and EEA, and Switzerland, to maintain reciprocal healthcare arrangements for the transitional period, and we will be negotiating for the period after that. This means maintaining reciprocal healthcare rights for pensioners, workers, students, tourists and other visitors in line with the current arrangements, including, as we have already debated, reimbursement of healthcare costs until 2020. But this depends on decisions by member states. People’s access to healthcare could change; we must be honest and open about that. Naturally, there is concern about what this will mean and what should be done. This is an uncertain situation and I very much appreciate that it will be difficult for people. I hope I can be a little bit reassuring about the actions we have already taken.

The 27 EU member states are all countries with universal healthcare coverage. In general, people would have good options for obtaining healthcare, providing they take the appropriate steps. After exit, and should there be no bilateral agreements in place, which we do not expect, the vast majority of UK nationals who live or work in the EU would still have good options for accessing healthcare. Depending on the country, it will generally be possible to access healthcare through legal residency, current or previous employment, joining a social insurance scheme, or contributing a percentage of income, as other residents need to. Less frequently—we have looked into this—people may need to purchase private insurance. People who return to the UK will also be able to use the NHS.

We recognise that this means a change and, in some circumstances, additional expense for UK nationals living abroad. It is to avoid this that we are offering not only to continue existing reciprocal agreements but to consider expanding our reciprocal healthcare arrangements outside the EU.

Speaking directly to the noble Baroness’s amendment, the Government will not be able to unilaterally fund healthcare for all UK citizens who live in or visit the EU. There are good reasons for this. It would be a new scheme that would cater for hundreds of thousands of people in up to 30 countries. It would place huge financial and administrative burdens on NHS bodies, assuming they made payments promptly and in-year. The technical challenges, including the risk of fraud, would be considerable. It would make it less likely that individuals would take the steps they need to, even if they were able to. It would undermine our approach with member states in negotiating reciprocal agreements. We do not think that is the right approach, but I reassure the noble Baroness that while these are difficult decisions and we cannot accept her amendment, we are taking important steps in addition to the reciprocal agreement negotiations that I have discussed.

We have mentioned the statutory instruments under the withdrawal Act that, in a no-deal scenario, can fund healthcare for people who are in the middle of treatment on exit day for up to one year. That assumes that the member state is willing to treat them and accept reimbursement; we have been discussing this. They would also enable some residents to recover costs if they are charged.

The Bill would also give us the power to respond to an unpredictable situation, as we discussed in the debate about Clauses 1 and 4. We will of course provide further detail in coming weeks, when we will be clearer about bilateral agreements and clearer on the need for any further arrangements. I hope that the noble Baroness is satisfied that the Government are doing all they can, and that it would not really be possible to offer the blanket support that she proposes, other than through reciprocal agreements.

Regarding Amendment 43, the noble Baroness will see that the Government have set out a clear prospectus of legislation in order to meet the requirements of reciprocal healthcare in the context of—although not just because of—exiting the EU. The Government have been clear that their priority is to secure a withdrawal agreement with the EU, but we must prepare for all eventualities. I hope that I have been clear that we are seeking to maintain and protect all rights, providing as much certainty and continuity of care as possible, as my noble friend Lord Lansley said. It would not be appropriate to introduce into the Bill a measure which meant that we had a period of uncertainty after exit day; the powers in this Bill are specifically designed to ensure that we will not have any gap in our ability to provide healthcare. Currently the withdrawal deal makes arrangements for reciprocal healthcare to be continued; the SIs allow for a no-deal scenario; and in addition to that we have powers in the Bill to make provision for emergency arrangements. This is a suite of powers which are designed to work together, and the reason the Bill needs to commence on exit day is so that if necessary—if there were a situation in which we did not have reciprocity—we would be able to step in and take action. On that basis, I hope that the noble Baroness feels able to withdraw her amendment..

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 9:30 pm, 19th February 2019

I thank the Minister for that very comprehensive answer, and thank other noble Lords, including the noble Baroness, Lady Brinton, for speaking up.

These are important questions because people are concerned about what will happen to them and to their families if we do not have an agreement. I am reassured by the answer on Amendment 20; it sounds as though the Government are already having comprehensive discussions. On Amendment 21, I can see that setting up a new system for payments would be very difficult, and I will read what the Minister has said. There and on Amendment 43, I am interested in what the gaps might be, so I will read and consider what she has said. Now that I have spoken to Amendment 43, I will not be moving it as the last amendment in the whole business. With that, I beg leave to withdraw Amendment 20.

Amendment 20 withdrawn.

Amendment 21 not moved.

Clause 4: Data processing

Amendment 22

Moved by Lord Patel

22: Clause 4, page 2, line 29, after “data” insert “related to health”

Photo of Lord Patel Lord Patel Chair, Science and Technology Committee (Lords)

My Lords, I shall speak to Amendment 22, in my name and that of the noble Lord, Lord Kakkar, and Amendment 25, which is in my name. Both relate to personal data, and seek assurance from the Government that, whatever processes are put in place, they will respect the need for confidentiality and trust. While I absolutely recognise the value of transferring individual health data when the patient is receiving treatment, and the need to do so, it is also important that the Bill provides powers to protect personal and health data.

Access to personal health data should be limited to healthcare purposes. Currently, the General Data Protection Regulation imposes restrictions on the transfer of data, which we may not have after we leave the EU. A separate issue is the definition of “authorised persons”, which, when they gave evidence, both the BMA and the Academy of Medical Royal Colleges referred to as concerns.

I am also unhappy about the mechanisms that will operate for patients to consent to having their data transferred. Amendment 25 refers to Clause 4(6), relating to data processing. It says:

“In this section—‘authorised person’ means”.

Paragraphs (a) to (e) then define who the authorised people might be. Amendment 25, which I tabled only to get an explanation from the Minister, suggests that paragraph (e) should be deleted. It says that,

“any other person authorised, or falling within a description of persons authorised, by regulations made by the Secretary of State for the purposes of this section”.

That sounds too wide to me. In this country we have clear protocols and guidelines about who should be transferring patients’ data and to whom. It is not to anybody not clearly defined as an authorised person. I beg to move.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat Lords Spokesperson (Health)

My Lords, the NHS in England has a long history and a good record of data governance. In 1996, Fiona Caldicott was called in and asked to look at the whole issue of NHS data. It must be said that the data was not as digital then as it is now. Her review came up with a group of principles—I think there were seven—and that was then followed by Caldicott 2. More recently, there has been another look at NHS data and we are now down to three principles. It is not just the Caldicott guardians. When he was Secretary of State at DCMS, Matt Hancock announced the data ethics framework and we then we had GDPR. There is a really rich background of caring for patients’ data.

The provisions in the Bill authorising the sharing of data appear wide—that is probably the best way to put it. Clause 4(1) provides:

“An authorised person may process personal data held by the person in connection with any of the person’s functions where that person considers it necessary for the purposes of implementing”,

the Act. The words,

“that person considers it necessary”,

are a very wide formulation for the exercise of a function such as this. They seem designed to make a challenge in court almost impossible.

Among others defined as an authorised person is a “provider of healthcare”, so the authority extends beyond the NHS to all organisations that provide NHS care but might not be NHS organisations. So it would include commercial organisations as well as public authorities. Can the Minister confirm this and give an example, to better understand how wide the scope is?

Moreover, it is left to bodies such as the NHS to define for themselves the level of staff who should have this degree of authority. Will the Minister confirm how data is handled with devolved states and within the island of Ireland? How are we intending to communicate clinical data with organisations in the EU, and in the rest of the world, once the Bill has been enacted? Are there issues about shared datasets? We are fairly confident about sharing research data, but clinical data will be absolutely key here.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health)

My Lords, I have an amendment in this group. I support the noble Lord, Lord Patel, and the noble Baroness, Lady Jolly. Clause 4 of the Bill provides the legal basis for processing personal information and data about patients to facilitate patient information and payments for reciprocal healthcare after Brexit—whether as part of an agreement with the EU, an agreement with a country outside the EU or in connection with contingency plans arising from a no-deal scenario. It also seeks to ensure that the key safeguards which should always be at the heart of systems that use and exchange patients’ sensitive personal and medical data are in place. The noble Lord, Lord Patel, is right to press this issue. It was almost the first thing that he and I spoke about when we talked about the Bill, which made me look at and ask why he and other noble Lords, particularly those in the medical profession, were very concerned about this.

At Second Reading the Minister acknowledged that there were deep concerns raised by noble Lords on data processing provisions in Clause 4, and promised to address them—but unfortunately she ran out of time on that day. We look forward to her catching up with that. We know that the noble Baroness has special expertise and experience in this field, so I look forward to hearing her talk about how she envisages the necessary robust standards, security and safeguards applying in post-Brexit healthcare deals with the EU and the rest of the world, and how those will be achieved.

In the Commons, my colleagues pressed this matter with the Minister, Stephen Hammond. He gave an assurance that the powers to access personal data would be limited, and committed at the time to provide a briefing. I wanted to raise that with the Minister—my colleagues in the Commons certainly have not received that, but I thought that she might raise it with her colleague and see what the briefing might have said. I am sure that we too would be interested to receive it.

When I raised this issue at Second Reading, I mentioned that I had been in touch with the National Data Guardian for Health and Social Care, who, as we know, has a vital role in ensuring that confidential healthcare data is used and shared appropriately in protecting the high standard of confidentiality. Pursuing that question is whether the Minister has been in touch and sought her guidance on this matter.

Photo of Lord O'Shaughnessy Lord O'Shaughnessy Conservative

My Lords, this has been an important discussion on an area that is, of course, of growing concern not just for people in Parliament but for the general public. Noble Lords will also know about my interest in this issue; we have had many discussions over the last few years about it. It is critical that we get this right, to allay any fears—because there are fears that attend to the use and movement of data for various purposes.

The noble Baroness, Lady Jolly, makes the point in her amendment about the Caldicott principles and so on. I was pleased from the Government’s point of view to be able to bring the National Data Guardian on to a statutory footing, as well as other measures that we took to provide that level of reassurance. My understanding is that these are all part of the scaffolding around the Data Protection Act, which is the GDPR as put into our legislation. They are a way of translating the general provisions of that into healthcare purposes. I ask the Minister to confirm that, because the Bill clearly states that the Data Protection Act is the governing piece of legislation here, it therefore follows that things such as the NDG, the principles and other things apply. They, in effect, derive from that and apply to all aspects of healthcare, including reciprocal healthcare.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat Lords Spokesperson (Health)

We are talking about exchanging health datasets, but in this world we are talking about our EU partners, the EEA and whoever else in the world we make a healthcare arrangement with. Are there mechanisms—this is a question I do not know the answer to—whereby datasets can be standardised so that any method of recording healthcare information that we might use would be recognisable to somebody in the States, Canada or France?

Photo of Lord O'Shaughnessy Lord O'Shaughnessy Conservative

That is an incredibly important point and it goes to the question that I was about to ask my noble friend. My reading of it is that it will not be possible for us to make reciprocal healthcare arrangements that involve the flow of data with another country unless we deem that country to be adequately complying with the GDPR. That is absolutely right and it is a high bar. It does not just provide a degree of regulatory compliance and standardisation; there are also international healthcare codes that underpin it, as the noble Baroness will know. It would be useful if my noble friend could confirm that, because it is clearly a really important point that will, in a sense, allay some of the fears that have been raised tonight about just how the powers in the Bill, once they extend beyond the European Union, Switzerland, the EEA and so on, might be used.

Amendment 22, in the name of the noble Lord, Lord Patel, wants to insert “related to health” after “data”. Of course, it is completely understandable why he would want that. It becomes slightly problematic because there are certain pieces of information that one would need about a person to reclaim information, or to have an exchange of funding for reciprocal arrangements, that do not necessarily relate to their health. Examples might be their name—that does not relate to their health—or the time they were in a country, to verify the fact that they are who they say they are and so can make a claim. I think that this kind of latitude is covered in the GDPR and that that provides the reassurance that this will not be misused, because we would not be able to strike an agreement with a country that was not applying the same standards to healthcare data—but there is a need for some non-health data to be processed as part of a reciprocal healthcare arrangement. That is why the broader definition is used. Another example might be the names of family members for a child—again to verify a claim.

The final element I want to speak to is that of non-NHS providers. This is rather important, because a number of non-NHS providers provide healthcare on behalf of the health system. It is not just the obvious ones that have been mentioned—I include GPs in that. It might also be private bodies carrying out NHS-funded care. A lot of diagnostic care is carried out by third parties. It might also cover providers of healthcare IT that records data. If we think of such systems as TTP, Cerner, Epic and so on that are used in hospitals, we would clearly want those bodies to be legally able to share that information. Of course, it needs to be connected with the healthcare purpose, but it is important that the Bill allows for that kind of latitude in a variety of ways, as I said. We must be absolutely clear—that is what I am seeking from my noble friend—that because of GDPR, because of the need and demand for adequacy on behalf of another country, a reciprocal partner, we would not be entering into the kind of arrangements that would bring the kinds of concerns that the public and, indeed, parliamentarians would have.

Photo of Baroness Manzoor Baroness Manzoor Baroness in Waiting (HM Household) (Whip) 9:45 pm, 19th February 2019

My Lords, I thank the noble Lords, Lord Patel and Lord Kakkar, even though the latter is not here, for Amendment 22, the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, for Amendment 23, the noble Baroness, Lady Thornton, for Amendment 24, and the noble Lord, Lord Patel, for Amendment 25. Each amendment allows me to speak to strict data processing protections in the Bill.

As my noble friend Lord O’Shaughnessy said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, such as the current arrangements we have with the EU. I reassure noble Lords that the Government are committed to the safe, lawful processing of people’s data in healthcare. Clause 4 provides a lawful basis for the processing of data in respect of future reciprocal healthcare arrangements that are outside the EU regulations mechanism. Data processing will be permitted only for the limited purposes set out in the Bill.

Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day. The purpose of including data provision in the Bill is to provide a transparent basis for the processing of personal data for the purposes of funding or arranging healthcare abroad. That is it, my Lords.

On this point, I address Amendment 22, tabled by the noble Lords, Lord Patel and Lord Kakkar, which would limit the scope of personal data processed to data directly related to health. Although I appreciate the sentiment behind the amendment, it would unfortunately undermine the successful operation of reciprocal healthcare arrangements. Personal data is defined in the GDPR as data relating to a living person who can be directly or indirectly identified from that data. Examples include someone’s name, date of birth or residential address.

For example, the current European health insurance card scheme allows for UK nationals to access emergency and needs-arising care when travelling, working short-term or studying in the EU. To establish someone’s eligibility for an EHIC, we need first to establish that the person is living in the UK on a lawful basis and properly settled. Were persons authorised under the Bill unable to process data other than that strictly related to health, they would be unable to make the checks to ensure that those receiving healthcare abroad were entitled to it. Allowing authorised persons to process non-health-related personal data also ensures that we can prevent misuse arrangements and limit fraudulent activity.

The noble Lord, Lord Kakkar, and others, expressed concern at Second Reading that provisions in the Bill must not open the door to the mishandling of patient data. I believe that this is what Amendment 24, tabled by the noble Baroness, Lady Thornton, is intended to address. I absolutely agree with the sentiment. I should like to set out why we think that it would prevent the successful operation of future reciprocal healthcare arrangements. They are made possible by the close co-operation of different parties and bodies, such as the Department of Health and Social Care, commissioners of Her Majesty’s Revenue and Customs, Ministers of the devolved Administrations, healthcare providers and their opposite numbers in other EU and EEA countries. The Bill is about the provision of healthcare. It must include all possible healthcare providers who may provide NHS care in the UK in the list of those with authority to process data for the purposes of implementing arrangements under the Bill—just under this Bill.

It is also worth reflecting on the place of healthcare providers in the current EU arrangements to illustrate the vital role that they play in both the commission and delivery of healthcare abroad. Currently, under the planned treatment route, known as the S2 route, a UK resident may decide to seek planned treatment abroad. As part of the procedure, the UK resident must visit a healthcare provider in the UK to have such treatment authorised. The clinician will provide written evidence that the person has had a full clinical assessment, which must clearly state why the treatment is needed in the person’s circumstances and what the clinician considers to be a medically justifiable period within which they should be treated—again, based on their circumstances.

Under existing arrangements, this function can be served only by a medically trained healthcare provider. This paperwork is then passed to NHS England or the comparable authority in the devolved Administration—that answers a point made by the noble Baroness, Lady Finlay—for processing. Many of these persons are provided for by Clause 4(6)(b), which refers to NHS bodies. However, some NHS services in England are provided by non-NHS bodies, as was rightly pointed out by my noble friend Lord O’Shaughnessy. For example, some primary care providers, such as GPs, may not be captured by this list of NHS bodies. However, they could be involved in pre-authorisation for planned treatment and so would need to process data in that regard. Such providers not also being termed “authorised persons” may limit what reciprocal healthcare arrangements we could implement under the Bill; it could even prevent us fully implementing an agreement. Under existing arrangements governed by EU regulations, some private providers in the UK already process patient data, which is perfectly legal and proper. Of course, data protection safeguards apply to private providers too.

To further allay any other fears, I remind your Lordships that this clause contains protections to guard against any misuse of data. The persons who can process data for the purposes of the Bill are limited to “authorised persons”—quite rightly, as the noble Lord, Lord Patel, said. The list of such persons can be amended only by way of statutory instrument; the term cannot just be given automatically to anyone. The Government included a delegated power in Clause 4(6)(e) to amend this list because future arm’s-length bodies may need to process personal data to enable reciprocal healthcare arrangements to operate effectively. Amendment 25 in the name of the noble Lord, Lord Patel, would limit that ability. I appreciate that that is out of concern for the safety and security of patient data—a sentiment I share totally—but the amendment would undermine the successful operation of future reciprocal healthcare arrangements.

As the noble Lord knows, the existing reciprocal healthcare arrangements are part of a complex web of systems. They rely on the well-spirited co-operation of a number of parties and bodies, which share accurate and relevant data in a prompt fashion. That extends from patients themselves all the way up to healthcare providers and public sector administrators. In time, public bodies change: they are reformed and refashioned, and functions are transferred between them in consequence. Clause 4(6)(e) gives the Secretary of State powers to respond to such changes.

Again, I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data, both now and in future. In doing so, I address Amendment 23 in the names of the noble Baroness, Lady Jolly, and the noble Lord, Lord Clement-Jones, which honourably seeks to include further principles for the safe processing of data in the Bill. As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill.

As has been said, data processing is an important element of operating effective complex reciprocal healthcare arrangements, like our current arrangements with the EU. Before I move on, I will answer a couple of the questions asked by the noble Baroness, Lady Thornton, about the Commons data briefing. I understand that officials met Julie Cooper MP, although I am not clear about the written briefing. However, I will pass the issue on to the Minister and bring it to his attention.

I have already covered data protection in the devolved Administrations, which would have to apply under both the GDPR and the DPA 2018. Of course, I would be happy to meet noble Lords should they wish to discuss those issues any further. My noble friend Lord O’Shaughnessy is right to say that we cannot enter into reciprocal agreements if the other country does not meet our data protection standards.

In the light of the assurances I have given and the safeguards in place to protect people’s information, I hope the noble Lord feels able to withdraw his amendment.

Photo of Lord Patel Lord Patel Chair, Science and Technology Committee (Lords) 10:00 pm, 19th February 2019

My Lords, I thank the Minister for her response and all noble Lords who have spoken to amendments tabled in this group. As a doctor, I say to the noble Lord, Lord O’Shaughnessy, that I regard the name, address and date of birth of a patient as part of the health record information. When GPs refer a patient to a specialist they will always give the name, address and date of birth. I am seeking assurances that the processes we have in place will maintain the confidence and trust of patients, in particular when their data is transferred.

I think we have made the point. If I am to remain in the good favour of the Chief Whip, I had better sit down because it is exactly 10 o’clock. I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendments 23 to 25 not moved.

Clause 4 agreed.

House resumed.

House adjourned at 10.01 pm.