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Charging ‘overseas visitors’ for NHS treatment, from Bevan to Windrush and beyond

Published online by Cambridge University Press:  09 July 2020

Jean V McHale Open the ORCID record for Jean V McHale [Opens in a new window]  and
Elizabeth M Speakman
Jean V McHale*
Affiliation:
University of Birmingham, Birmingham, UK
Elizabeth M Speakman
Affiliation:
Edinburgh Napier University, Edinburgh, UK
*
*Corresponding Author e-mail: j.v.mchale@bham.ac.uk
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Abstract

This paper explores the development and operation of law and policy concerning the charging of overseas visitors for healthcare in England from the beginnings of the NHS to the present day. It highlights how this has been a highly contentious issue for decades, often linked with immigration policy, and is an area that still lacks comprehensive reliable empirical data to inform the debate. It explores and analyses the recent reforms to the NHS Overseas Charging Regulations introduced in 2015 and 2017. It demonstrates the problems in implementing the most recent regulations in an era of the ‘hostile environment’ and argues that the approach which has been taken can be seen as undermining the covenant of trust between patient and clinician and thus the fundamental principles of the NHS.

Keywords

health lawoverseas visitors chargingNHS
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 4 , December 2020 , pp. 565 - 588
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of The Society of Legal Scholars

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Footnotes

†

The authors would like to thank Roberta Bivins, Rosie Harding, Ben Warwick and the Birmingham Law School Global Legal Studies group for their very helpful comments on an earlier draft of this paper. They also very gratefully acknowledge the support of ESRC grant number ES/R002053/1. All opinions expressed and any errors which may remain are of course those of the authors alone

References

1 L Osborne ‘African mum of quintuplets let off £145,000 NHS bill: health tourist who came to UK to give birth says no one's asked her to pay’ (MailOnline, 29 August 2015) https://www.dailymail.co.uk/news/article-3214709/African-mum-quintuplets-let-145-000-NHS-bill-Health-tourist-came-UK-birth-says-no-one-s-asked-pay.html; P Sawer ‘Nigerian mother let off £145,000 NHS bill after birth of quins’ (The Telegraph, 29 August 2015) https://www.telegraph.co.uk/news/health/news/11832487/Nigerian-mother-let-off-145000-NHS-bill-after-birth-of-quins.html.

2 The NHS (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, as amended by The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017, SI 2017/756.

3 Figures are unreliable, but Government estimates for 2012/13 were that ‘health tourism’ (overseas visitors inappropriately accessing free NHS care) was costing about 0.3% of the total NHS budget, ie around £1.8 billion: ‘Quantitative Assessment of Visitor and Migrant Use of the NHS in England’ (Prederi, 2013) p 11. With regard to paid care, the UK is a net exporter of patients but between 2010 and 2016 around 51,000–58,000 overseas residents travelled to the UK for medical treatment: https://www.ons.gov.uk/peoplepopulationandcommunity/leisureandtourism/adhocs/007642medicalvisitstoandfromtheuk2010to2016. Hanefeld found that overseas visitors paying for NHS facilities accounted for 25% of all revenue, while only representing 7% of patients: J Hanefeld et al ‘Medical tourism: a cost or benefit to the NHS?’ (2013) Plops One 8.10 e70406.

4 See further discussion in Section 2 of this paper below.

5 SI 2015/238, above n 2, reg 2(3).

6 A Gentleman ‘Londoner being denied NHS cancer care: “It's like I'm being left to die”’ (The Guardian, 10 March 2018) https://www.theguardian.com/uk-news/2018/mar/10/denied-free-nhs-cancer-care-left-die-home-office-commonwealth; see also Gentleman, A The Windrush Betrayl Exposing the Hostile Environment (Faber, 2019)Google Scholar.

7 A Gentleman, ‘The children of Windrush: “I'm here legally, but they're asking me to prove I'm British”’ (The Guardian, 15 April 2018) https://www.theguardian.com/uk-news/2018/apr/15/why-the-children-of-windrush-demand-an-immigration-amnesty.

8 HC Home Affairs Committee ‘The Windrush generation’, 6th Report [Session 2017–19] (3 July 2018) HC 990, at 6–7.

9 Ibid.

10 BBC News ‘Amber Rudd resigns as Home Secretary’ 30 April 2018, https://www.bbc.co.uk/news/uk-politics-43944988.

11 C Jayanetti ‘NHS denied treatment for migrants who can't afford upfront charges’ (The Guardian, 13 November 2018) https://www.theguardian.com/society/2018/nov/13/nhs-denied-treatment-for-migrants-who-cant-afford-upfront-charges.

12 See UK government foreign travel advice on health costs abroad, for example in the USA: https://www.gov.uk/foreign-travel-advice/usa/health; Canada: https://www.gov.uk/foreign-travel-advice/canada/health; and Russia: https://www.gov.uk/foreign-travel-advice/russia/health.

13 On the history of the NHS see T Delamothe (2008) 336 BMJ 1216; Klein, R The New Politics of the NHS: From Creation to Reinvention. (Abingdon: Radcliffe, 2006)Google Scholar; Webster, C The National Health Service: A Political History (Oxford: Oxford University Press, 2nd edn, 2002)Google Scholar. For further discussion of the founding principles see Section 2 of this paper below.

14 Smith, J and Dexter, E ‘Implications of upfront charging for NHS care: a threat to health and human rights’ (2018) 41(2) Journal of Public Health 427Google Scholar, https://doi.org/10.1093/pubmed/fdy050.

15 WHO ‘Universal health coverage (UHC) Fact sheet’ (updated December 2017) and see also World Health Organisation Making fair choices on the path to universal health coverage: Final report of the WHO consultative group on equity and universal health coverage (2004). On the right to health see further P Hunt ‘Interpreting the international right to health in a human rights-based approach to health’ (2016) Health and Human Rights Journal https://www.hhrjournal.org/2016/12/interpreting-the-international-right-to-health-in-a-human-rights-based-approach-to-health/; Murphy, TM Health and Human Rights (Oxford: Hart Publishing, 2013)Google Scholar; Tobin, J The Right to Health in International Law (Oxford: Oxford University Press, 2012)Google Scholar.

16 International Covenant on Economic, Social and Cultural Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with Art 27.

17 United Nations New York, 18 December 1979; see further Freeman, MA and Chinkin, C The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford: Oxford University Press, 2013) pp 311–335Google Scholar.

18 United Nations, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49. See also Eide, W Barthe A Commentary on the United Nations Convention on the Rights of the Child: The Right to Health Article 24 (Martinus Nijhoff, 2006)Google Scholar.

19 See on the right to emergency healthcare Mehmet Senturk and Bekir Senturk v Turkey (App No 13423/09) (2013) 60 EHRR 4; Asiye Genc¸ Turquie (App Bo 24109/07), judgment of 27 January 2015 and Nissen, A ‘A right to access to emergency health care: the European Court of Human Rights pushes the envelope’ (2018) 26(4) Medical Law Review 693CrossRefGoogle Scholar and on rights to access health care in general Scialaqua v Italy (1998) 26 EHRR 164.

20 Council of Europe, Paris, 11/12/1953.

21 National Health Service Act 2006, s 1(4).

22 Re J [1992] 2 FLR 165: R (on the application of Burke) v GMC [2005] QB 424; In the Matter of Charlie Gard, 8 June 2017 https://www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-charlie-gard.html.

23 See for example concerns expressed in relation to the new NHS long-term plan with its required changes for healthcare delivery and accompanying ‘efficiency savings’: R Hurley ‘Doctors spurn NHS long term plan’ (2019) 365 BMJ l4392.

24 See discussion in Section 1 of this paper.

25 See eg Z Kmietowicz ‘NHS staff march against passport checks’ (2017) BMJ 359; Burn, H ‘Returning our ebola medals: our opposition to the hostile environment within the NHS’ (2018) 68 British Journal of General Practice 580CrossRefGoogle ScholarPubMed.

26 See Pollard, A and Savulescu, J ‘Eligibility of overseas visitors and people of uncertain residential status for NHS treatment’ (2004) 329 BMJ 346CrossRefGoogle ScholarPubMed.

27 On the role of social solidarity and the NHS see further Newdick, C ‘Citizenship, free movement and health care: cementing individual rights by corroding social solidarity’ (2006) 43 Common Market Law Review 1645Google Scholar.

28 J Kirkup and R Winnett ‘Theresa May interview: “We're going to give illegal migrants a really hostile reception”’ (Daily Telegraph, 25 May 2012) https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html.

29 The regulations currently in force across the UK are: England: The NHS (Charges to Overseas Visitors) Regulations 2015, as amended 2017; Scotland: The NHS (Charges to Overseas Visitors) (Scotland) Regulations 1989; Wales: The NHS (Charges to Overseas Visitors) (Wales) Regulations 1989, as amended 2007; Northern Ireland: The Health and Personal Social Services Provision of Health Services to Persons not Ordinarily Resident Regulations (Northern Ireland) 2015.

30 National Health Service Act 2006, s 175.

31 See above n 2.

32 Department of Health & Social Care ‘Guidance on implementing the overseas visitor charging regulations’ (February 2020).

33 Bevan, A In Place of Fear (1951, reprinted by Quartet Publishing: London 1978) p 100Google Scholar.

34 NHS Leaflet No 2 (1949) quoted by Sir Waldron Smithers MP in Hansard HC Deb, vol 463, col 2439, 8 April 1949.

35 Hansard HC Deb, vol 463, cols 2439–48, 8 April 1949.

36 Ibid, col 2240.

37 Ibid, col 2446.

38 Ibid, col 2448.

39 Hansard HC Deb, vol 465, cols 1066–180, 24 May 1949.

40 Hansard HC Deb, vol 20, cols 441–442, 17 March 1982.

41 National Health Services (Amendment) Act 1949, s 17.

42 Hansard HC Deb, vol 468, cols 629–45, 19 October 1949.

43 Mr Gerald Nabarro, Conservative MP: Hansard HC Deb, vol 567, cols 159–80, 18 March 1957.

44 Hansard HC Deb, vol 567, cols 176–178, 18 March 1957.

45 J Appleby ‘70 years of NHS spending’ (Nuffield Trust, 21 March 2018) https://www.nuffieldtrust.org.uk/news-item/70-years-of-nhs-spending.

46 Hansard HC Deb, vol 20, col 418, 17 March 1982.

47 In Scotland, these powers were established by the National Health Service (Scotland) Act 1978, s 98.

48 Hansard HL Deb, vol 377, col 563, 10 November 1976.

49 Ibid.

50 We are using the term ‘vulnerable’ here in a descriptive manner, reflecting the approach taken by the debates. It is of course possible to view the nature of vulnerability as a ‘universal, inevitable, enduring aspect of the human condition’ as highlighted in the work of Martha Fineman but such an analysis goes beyond the scope of this current paper. See further Fineman, MA ‘The vulnerable subject: anchoring equality in the human condition’ (2008) 20(1) Yale Journal of Law and Feminism 1Google Scholar.

51 The National Health Service (Charges to Overseas Visitors) Regulations 1982, SI 1982/795 and the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1982, SI 1989/364 and see further Carty, H ‘Overseas visitors and the NHS’ (1983) 5 Journal of Social Welfare and Family Law 258Google Scholar.

52 Hansard HC Deb, vol 20, col 418, 17 March 1982.

53 Hansard HC Deb, vol 20, cols 411–52, 17 March 1982.

54 Hansard HC Deb, vol 20, col 416, 17 March 1982.

55 Ibid.

56 Hansard HC Deb, vol 20, cols 411–52, 17 March 1982.

57 R v Barnet London Borough Council, ex p Shah [1983] 2 AC 309.

58 Hansard HC Deb, vol 29, col 373, 20 Oct 1982.

59 Hansard HC Deb, vol 20, col 438, 17 March 1982: Mr Michael Meacher, Labour MP.

60 Hansard HC Deb, vol 20, col 446, 17 March 1982.

61 Hansard HC Deb, vol 36, col 718, 7 February 1983.

62 Hansard HC Deb, vol 36, col 721, 7 February 1983.

63 Health and Medicines Act 1988, s 7.

64 The National Health Service (Charges to Overseas Visitors) Regulations 1989, SI 1989/306.

65 See n 29 above.

66 R Bragg ‘Maternal deaths and vulnerable migrants’ (2008) The Lancet 880 and see Ashcroft, R ‘Standing up for the medical rights of asylum seekers’ (2005) 25 Journal of Medical Ethics 125Google Scholar.

67 Bragg, R and Feldman, R ‘“An increasingly uncomfortable environment’: access to health care for documented and undocumented migrants in the UK’ in Migration and Social Protection (London: Palgrave Macmillan, 2011) p 146Google Scholar.

68 Hansard HL Deb, vol 658, cols 950–68, 5 March 2004.

69 Home Office ‘Enforcing the rules: a strategy to ensure and enforce compliance with our immigration laws’ (Home Office, 2007).

70 Ibid at p 14 as quoted in Bragg and Feldman, above n 67.

71 Department of Health ‘Review of access to the NHS by foreign nationals. Consultation on proposals’ (February 2010) Foreword, p 1.

72 UK Border Agency ‘Impact assessment of proposed amendments to the immigration rules; refusing entry or extensions of stay to NHS debtors’ (7 December 2009) p 1, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/257679/ria.pdf.

73 Ibid, p 5.

74 See discussion in C Newdick ‘Treating failed asylum seekers’ (2009) 338 BMJ, including the case of Ama Sumane, a Ghanaian patient with multiple myeloma, who was refused treatment by University Hospital Cardiff. Her condition was stabilised and she was then removed to Ghana where there was limited treatment available for her condition.

75 R (on the application of YA) v Secretary of State for Health [2009] EWCA Civ 225.

76 Department of Health, above n 71, Foreword, p 1.

77 Ibid, Chapter 5 ‘Health insurance for overseas visitors’.

78 Ibid, p 29.

79 Department of Health ‘Access to the NHS by foreign nationals – Government response to the consultation’ (18 March 2011) p 5.

80 National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556.

81 National Audit Office ‘Department of Health. Recovering the cost of NHS treatment for overseas visitors’ (28 October 2016) p 7.

82 For a very helpful background to the debates concerning austerity see further Blyth, M Austerity: The History of a Dangerous Idea (Oxford: Oxford University Press, 2013)Google Scholar.

83 The King's Fund ‘The NHS budget and how it has changed’, 5 September 2019, https://www.kingsfund.org.uk/projects/nhs-in-a-nutshell/nhs-budget (last accessed 11 June 2020).

84 R Clark ‘Cost of treating health tourists is killing the NHS’ (Daily Express, 31 October 2016) https://www.express.co.uk/comment/expresscomment/727339/NHS-cost-treatment-foreign-tourists-Bimbo-Ayelabola, a figure which he subsequently revised down to two billion: J Meirion Thomas ‘Health tourism is a gaping wound in our NHS’ (MailOnline, 24 October 2017) https://www.dailymail.co.uk/debate/article-5010685/J-MEIRION-THOMAS-Health-tourism-gaping-wound-NHS.html.

85 The 2015 Regulations were introduced during David Cameron's Government, and the 2017 Regulations under the Government of Theresa May. See further Steele, S and Devlin, C ‘Access and entitlements for migrants and visitors to the UK in the English National Health Service’ in Kuehlmeyer, K et al. (eds) Ethical, Legal and Social Aspects of Health Care for Migrants: Perspectives from the UK and Germany (London: Routledge, 2018)Google Scholar.

86 The provision of NHS prescriptions in England is an exception, though some groups are exempt – for example retired persons and children.

87 Above n 2, reg 2(b) and see Syrett, K ‘The organisation of the NHS’ in Laing, JM and McHale, JV Principles of Medical Law (Oxford: Oxford University Press, 2017)Google Scholar; Hiam, L and McKee, M ‘Upfront charging of overseas visitors using the NHS’ (2017) 359 BMJ j4713Google ScholarPubMed.

88 R v Barnet London Borough Council, ex p Shah, above n 57.

89 R v Hammersmith Hospitals NHS Trust, ex p Reffell [2000] 55 BMLR 130; R (on the application of YA) v Secretary of State for Health [2009] EWCA Civ 225.

90 UK Visas and Immigration ‘Guidance. Ordinary Residence’ (October 2017) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/258236/ordinaryresidence.pdf.

91 Above n 32, p 26, para 3.5.

92 Ibid, para 3.10.

93 Above n 2, reg 3(1).

94 Ibid, reg 3(2).

95 Above n 2, reg 3(1A).

96 Above n 32, p 68, para 8.17.

97 Above n 2, reg 7(3).

98 See eg Hunt, P ‘Income generation in the NHS’ (1989) 4(1) Journal of Management in Medicine 56CrossRefGoogle Scholar; Roddis, MJ ‘Income generation in the NHS: opportunity or myth?’ (1996) 6(55) British Journal of Hospital Medicine 67Google Scholar.

99 Above n 32.

100 Wise, J ‘News charging overseas patients upfront could cause “chaos”, BMA warns’ (2017) 365 BMJ j655Google Scholar.

101 K Forster ‘Patients at 20 NHS hospitals having to show passports and ID in “health tourism” crackdown' (The Independent, 17 January 2017) http://www.independent.co.uk/news/uk/politics/nhs-hospitals-20-forced-show-passports-id-health-tourism-crackdown-healthcare-jeremy-hunt-government-a7530931.html.

102 Letter from Jeremy Hunt to Sarah Wollaston MP, 5 September 2017. HC Health Committee: Correspondence with the Secretary of State relating to pilots of checking for eligibility for NHS treatment: https://www.parliament.uk/documents/commons-committees/Health/Correspondence/2017-19/Correspondence-SoS-pilots-nhs-eligability-210717.pdf.

103 R Lydall ‘8,900 Checks on NHS “health tourists” find just 50 liable to pay’ (Evening Standard, 29 May 2018) https://www.standard.co.uk/news/health/8900-checks-on-nhs-health-tourists-find-just-50-liable-to-pay-a3850121.html.

104 Ibid.

105 Ibid.

106 Ibid.

107 L Pasha-Robinson ‘Pregnant British woman ordered by NHS to prove she is from UK to receive free treatment’ (The Independent 2017) https://www.independent.co.uk/news/uk/home-news/pregnant-british-woman-emma-szewczak-harris-nhs-treatment-addenbrookes-hospital-polish-uk-a8012846.html.

108 For example, list of ‘Acceptable identification documents’ at https://www.guysandstthomas.nhs.uk/patients-and-visitors/patients/nhs-entitlement.aspx#na.

109 See Mitchell, P ‘France gets smart with health à la carte’ (1998) 351 (9104) The Lancet 736CrossRefGoogle ScholarPubMed.

110 Provision was made for identity cards in the Identity Cards Act 2006 but these were not compulsory and this was repealed by the Identity Documents Act 2010. In consideration of identity cards before the 2006 Act was eventually introduced there was support given to identity cards to crack down on ‘health tourism’: see S Goodchild ‘Ministers say ID cards “good for NHS” (The Independent, 25 April 2004) and the Select Committee stated that ‘it would be sensible for the identity card to be the mechanism that enables individuals to access their NHS records’, House of Commons Home Affairs Committee ‘Identity Cards’ Fourth Report of Session 2003–04 para 176, HC 130-1.

111 Above n 2, reg 10, power to impose this charge had been granted by the Immigration Act 2014, s 38.

112 ‘Pay for UK healthcare as part of your immigration application’ https://www.gov.uk/healthcare-immigration-application.

113 The charge is currently £400 per year (£300 for certain visa categories) and is due to increase in October 2020 to £624 per year (£420 for certain visa categories): Immigration (Health Charge) Order 2015, SI 2015/792 (as amended, most recently by the Immigration (Health Charge) Amendment Order 2018, SI 2018/1389); see also M Gower ‘The Immigration Health Surcharge’ House of Commons Library Briefing Paper, Number CBP 7274, 27 April 2020.

114 Above n 2, reg 12.

115 ‘Resources for NHS trusts to help manage overseas visitors and migrant charging’ (GOV.UK, 2018) https://www.gov.uk/government/publications/help-for-nhs-to-recover-costs-of-care-from-visitors-and-migrants and see further discussion of the impact of EU law on patient's rights to claim treatment in other EU member states in Hervey, TK and McHale, JV European Health Law: Themes and Implications (Cambridge: Cambridge University Press, 2015)CrossRefGoogle Scholar.

116 Directive 2011/24/EU of 9 March 2011, Art 8 on the application of patients’ rights in cross-border healthcare.

117 HM Government Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (19 October 2019).

118 Guidance had been issued in relation to a No-Deal Brexit scenario in 2019 but as the UK did leave with a withdrawal agreement and went into Transition this is no longer valid: ‘Guidance Overseas visitor charging: no-deal Brexit guidance for NHS service providers’, last updated 3 October 2019: https://www.gov.uk/guidance/overseas-visitor-charging-guidance-for-nhs-service-providers-on-updates-to-regulations.

119 Above n 2, reg 14.

120 This refers to those who are receiving support under s 95 of the Immigration and Asylum Act 1999 from the Home Office: ibid, reg 15.

121 Ibid, reg 19.

122 Ibid, reg 16.

123 Ibid, reg 17.

124 Ibid, reg 18(c) and (d).

125 Ibid.

126 Some concerns regarding these provisions were raised before the House of Lords European Union Select Committee hearing in 2017: House of Lords European Union Committee Brexit reciprocal healthcare 13th Report of Session 2017–19, HL Paper 107.

127 Ibid, reg 20.

128 Ibid, reg 21.

129 Ibid, reg 22.

130 Ibid, reg 25.

131 Above n 32, p 12, para 1.1.

132 Above n 2, reg 9.

133 Ibid, reg 9(b).

134 Above n 2, reg 9.

135 Above n 2, Sch 1.

136 Ibid, reg 9, Sch 1.

137 Letter from Dr Sarah Wollaston MP, Chair of Health Committee to Jeremy Hunt (21 July 2017) https://www.parliament.uk/documents/commons-committees/Health/Correspondence/2017-19/Correspondence-SoS-pilots-nhs-eligability-210717.pdf.

138 See above, n 102.

139 Above n 32, p 12, para 1.1.

140 Above n 2, reg 9(f).

141 Ibid, reg 9(c).

142 Above n 32, para 7.2.

143 Ibid, para 7.11.

144 Ibid, para 7.26.

145 Above n 32, para 8.6.

146 Shahvisi, A and Finnerty, F ‘Why is it unethical to charge migrant women for pregnancy care in the National Health Service’ (2019) 45 Journal of Medical Ethics 1CrossRefGoogle ScholarPubMed.

147 R (on the application of MP) v Secretary of State for Health and Social Care v Equality and Human Rights Commission [2018] EWHC 3392 (Admin).

148 Above n 32, para 11.3.

149 Above n 33, paras 11.6–11.9.

150 Meirion Thomas, above n 84.

151 Ipsos MORI ‘Overseas visitor and migrant NHS cost recovery programme. Formative evaluation – final report’ (January 2017) at iv.

152 Ibid.

153 Doctors of the World: quoted in A Gentleman ‘Crackdown on migrants forces NHS doctors to “act as border guards”’ (The Guardian, 20 April 2017) https://www.theguardian.com/uk-news/2017/apr/20/crackdown-migrants-nhs-doctors-border-guards-immigration-undocumented-migrants.

154 J Meirion Thomas and K Chand ‘Is Jeremy Hunt right to act on health tourism?’ (The Guardian, 23 October 2013) https://www.theguardian.com/commentisfree/2013/oct/23/jeremy-hunt-health-tourism-nhs-visitors.

155 Above n 32, at 90, para 11.28.

156 Above n 2, reg 3A.

157 In relation to the impact of the regulations on privacy and confidentiality see eg JMK Reynolds and C Mitchell ‘“Inglan is a bitch”: hostile NHS charging regulations contravene the ethical principles of the medical profession’ (2019) Journal of Medical Ethics 497 and see further in relation to the nature of the concepts in health care generally Laurie, G et al. Mason and McCall Smith's Law and Medical Ethics (Oxford: Oxford University Press, 11th edn, 2019) ch 6CrossRefGoogle Scholar; McHale, JV ‘From X v Y to care.data and beyond: health care confidentiality and privacy in the C21st: a critical turning point?’ (2015) 3 Journal of Law Medicine and Ethics 103CrossRefGoogle Scholar; Stanton, C ‘To share or not to share’ (2018) 26(2) Medical Law Review 328CrossRefGoogle ScholarPubMed.

158 S Lintern ‘Revealed: mass use of credit check firm to find NHS patients to charge’ Health Service Journal, 30 September 2019.

159 See Reynolds and Mitchell, above n 157, and for further discussion of beneficence and non-maleficence see also Beauchamp, T and Childress, J Principles of Biomedical Ethics (Oxford: Oxford University Press, 2019)Google ScholarPubMed.

160 NHS England ‘Individual funding requests for specialised services a guide for patients’ (2017) https://www.england.nhs.uk/wp-content/uploads/2017/11/ifr-patient-guide.pdf.

161 Department of Health ‘Proposals to exclude overseas visitors from eligibility to free NHS primary medical services: a consultation’ (London: Department of Health, 2004) discussed in S Hull and K Boomla ‘Primary care for refugees and asylum seekers’ (2006) 332 BMJ 62.

162 Above n 32, para 11.57.

163 Department of Health and Social Care ‘Guidance Providing healthcare for overseas visitors from the EEA and Switzerland: information for primary care staff’ (updated 22 October 2019).

164 Mahmase, E ‘Migrant health: trusts asked GPs to identify whether patients they refer are eligible for free NHS care’ (2019) 367 BMJ 16002Google Scholar.

165 See discussion in A Shaves ‘Austerity or xenophobia? The causes and costs of the “hostile environment” in the NHS’ (2019) Healthcare Analysis 202.

166 J Hambly Freedom of Information request to the Department of Health and Social Care: 13 February 2017, reported at https://www.whatdotheyknow.com/request/nhs_charges_for_overseas_patient.

167 J Wise ‘Don't charge migrants for maternity care, say midwives (2019) BMJ 15487 and see also ER Turnbull et al ‘The exclusion of pregnant women from NHS health care: a cross-sectional, humanitarian, health service evaluation’ (2019) The Lancet special edition 394 S2 1 November.

168 Russell, NJ et al. ‘Charging undocumented migrant children for NHS healthcare: implications for child health’ (2019) 104(8) Archives of Disease in Childhood 722CrossRefGoogle ScholarPubMed.

169 M Weaver ‘Doctors threaten to boycott plan for patients to show ID at hospitals’ (The Guardian, 22 November 2016) https://www.theguardian.com/society/2016/nov/22/doctors-threaten-to-boycott-plan-for-patients-to-show-id-for-nhs-care.

170 R (W and others) v Secretary of State for Health (British Medical Association intervening) [2015] EWCA Civ 1034.

171 N Roberts ‘GPs urge boycott of ID-on-referral hospital charging scheme’ (GP Online, 24 April 2017) https://www.gponline.com/gps-urge-boycott-id-on-referral-hospital-charging-scheme/article/1431277.

172 D Campbell ‘NHS will no longer have to share immigrants’ data with Home Office’ (The Guardian, 9 May 2018) https://www.theguardian.com/society/2018/may/09/government-to-stop-forcing-nhs-to-share-patients-data-with-home-office. For further background on data sharing see L Hiam et al ‘Creating a “hostile environment for migrants”: the British government's use of health service data to restrict immigration is a very bad idea’ (2018) Health Economics Policy and Law 107.

173 M Savage and C Cadwalladr ‘Revealed: how Home Office hires out staff to hunt immigrants’ (The Guardian, 16 February 2019) https://www.theguardian.com/uk-news/2019/feb/16/home-office-hires-out-staff-hunt-migrants-hostile-environment.

174 See http://www.docsnotcops.co.uk/.

175 It is recognised that unlike the drive to evidence-based medicine, evidence-based health law can be seen as problematic given the impact of politics on the development of legislation, but at the same time we would argue that as far as possible legislation should be evidence based and that aspects of such an evidence-based rationale can be seen, eg in relation to the development of impact assessments in relation to proposed legislation. On evidence-based law see also JJ Rachlinsk ‘Evidenced-based law’ (2011) 96 Cornell Law Review 901.

176 Department of Health ‘Visitor & Migrant NHS Cost Recovery Programme. Implementation Plan 2014–16’ (14 July 2014) at 14.

177 National Audit Office ‘Department of Health. Recovering the cost of NHS treatment for overseas visitors’ (28 October 2016) Summary at 6, para 7.

178 Ibid, Summary at 9.

179 Hansard HC Deb, vol 20, cols 414–415, 17 March 1982.

180 Poduval, S et al. ‘Experiences among undocumented migrants accessing primary care in the United Kingdom’ (2015) 45(2) International Journal of Health Services 320CrossRefGoogle ScholarPubMed.

181 G Iacobucci, ‘New law will force hospitals to charge foreign patients for non-urgent care’ (2017) BMJ 358.

182 Above n 177.

183 Department of Health ‘Making a fair contribution. Government response to the consultation on the extension of charging overseas visitors and migrants using the NHS in England’ (February 2017) p 12.

184 Ibid, p 5.

185 Osborne, above n 1; Hospital, BBC 2 Series 1, Episode 4 (first shown 1 February 2017) https://www.youtube.com/watch?v=PCaojtogBfU.

186 Himmelstein, DU et al. ‘Medical bankruptcy in the United States, 2007: results of a national study’ (2009) 122(8) The American Journal of Medicine 741CrossRefGoogle ScholarPubMed.

187 Hiam, L and McKee, M ‘Upfront charging of overseas visitors using the NHS’ (2017) 359 BMJ 4713Google ScholarPubMed.

188 Meirion Thomas and Chand, above n 154.

189 Above n 32, p 32.

190 Department of Health ‘Making a fair contribution. Government response to the consultation on the extension of charging overseas visitors and migrants using the NHS in England’ (February 2017) p 5.

191 Ibid, p 44.

192 T Powell and A Bate ‘Briefing Paper Number CBP03051, NHS charges for overseas visitors’ (House of Commons Library 23 October 2017) p 18 and see Feldman, RA et al. ‘Hostile environment prevents women from accessing maternal care’ (2020) 368 BMJ m968Google ScholarPubMed.

193 Academy of Medical Royal Colleges ‘NHS Charges to overseas visitors regulations: a statement from the Academy of Medical Royal Colleges’ (2019) https://www.aomrc.org.uk/wp-content/uploads/2019/03/2019-03-14_NHS_charges_overseas_visitors_regulations.pdf.

194 Health and Social Care Committee called the Secretary of State to give evidence to them. Correspondence with the Secretary of State relating to overseas visitors charging: https://www.parliament.uk/documents/commons-committees/Health/Correspondence/2017-19/Correspondence-with-Secretary-of-State-relating-to-Overseas-visitor-charging.pdf; Evidence of the Secretary of State, 19 July 2019 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/health-and-social-care-committee/work-of-the-secretary-of-state/oral/103780.pdf.

195 Torjesen, I ‘Migrant charging in the NHS: how can doctors support patients when hospital care is denied’ (2019) 365 BMJ I2881Google ScholarPubMed

196 Ibid.

197 Hansard HC Deb, vol 20, cols 411–52, 17 March 1982.

198 While at the end of 2018 the Health Minister Stephen Hammond stated that there was no evidence of patients being deterred from seeking, this was disputed by the Royal Colleges, which called for charges to overseas patients to be ended: Review of amendments made to the NHS Overseas Visitor Charging Regulations in 2017: written statement HCWS1174, December 2018, https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-12-12/HCWS1174; A Rimmer ‘Royal Colleges call for end to charges for overseas patients’ (2018) 363 BMJ, 21 December 2018.

199 Above n 174.