Brexit must do no harm to health: including by securing adequate medical professional qualifications rules

A Leave.EU Tweet on 3 August 2018 claims that “EU regulations currently prevent doctors from qualifying before five years of training. Just one of countless examples of EU “market building” that do nothing of the sort, instead causing disruption and impairing UK policymakers.” It’s citing Health Minister Steve Barclay, and a ‘Westmonster’ blog.

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This is yet another example of pro-Brexit propaganda that sounds beguilingly simple and obvious but turns out to be nothing of the sort.

It is so for four main reasons:

First: It is wrong about the causal relationships between EU law and current UK practice. It forgets that the UK has been a powerful and influential member state of the EU for decades. As such, the UK has had important influences on the way EU law is in this area – as in many other areas. Current UK law on medical qualifications does indeed comply with EU law. But effects of EU law on routes to medical qualification are limited, and mainly indirect. The vast majority of the detailed contents of medical curricula are determined nationally. The length of time it takes to qualify for a particular medical profession differs in different EU member states.

It’s true that doctors qualifying in the EU need to undergo a certain agreed amount of training: the UK agreed those rules as an EU member state. If the UK wanted to make changes to the rules on medical qualifications as a member of the EU it could.  Indeed, the UK already did, particularly in the reforms that led to the new EU laws adopted in 2005.

So there’s no new opportunity here, at least not in the sense implied in the minister’s statements.

Second: This kind of statement vastly over-simplifies rules about qualifications of different types of medical professionals. EU rules about doctors are on one model, where there is a set amount of time and a broad brush agreement on the content of what they need to learn in order to qualify. This isn’t the case for other medical professionals.  For them, there is significantly more control by the home state, subject to the obligation to recognise equivalent qualifications from other EU countries (and the corresponding duty of other EU countries to recognise UK qualifications). The UK – along with every EU member state – is permitted to check linguistic competency of medical professionals working in the UK.

Third: The statement assumes that quicker is better and cheaper. There is a good reason that it takes time to qualify as a medical professional: medical professionals affect people’s health, dignity and lives. Less well qualified medical professionals might not necessarily be cheaper for the NHS longer term. I hardly need to elaborate further here, surely?

Fourth: The idea that we could gain a ‘Brexit benefit’ from shortening qualification periods for medical professionals is wrong about who our doctors and other health professionals are, and about how medical practice, and bio-science more generally, works in today’s world. Bio-medical science is an international career. The UK does well, at the moment, in attracting professionals from other EU states to the UK. If we depart from alignment with EU qualifications, then we lose an important group of collaborators, and people who could work in the UK as medical professionals.

It is inconceivable that the UK could be ‘self sufficient’ in medical professionals – the numbers just do not add up – as the Nuffield Trust has convincingly shown in its detailed research.

Even if UK were to invest an unprecedented amount in educating medical professionals – and bear in mind that there is no commitment whatsoever from this, or any other, government to attempt to do so – it still wouldn’t give us access to the international collaborations that we currently participate in through the EU.

In short, this kind of misinformation that seems too good to be true is just that: too good to be true.

Parliament (both Commons and Lords) is concerned about any worsening of health post-Brexit and will seek to hold the government to account. The current government itself agreed in the debates on the EU (Withdrawal) Bill that Brexit should ‘do no harm’ to health. These kinds of statements about supposed ‘Brexit benefits’ need to be carefully scrutinized against that standard.

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Legal and policy aspects of Brexit for health: update

I was invited to speak at the University of Oxford, Faculty of Law’s Brexit Symposium on Friday 23 February 2018. Here’s the text of my talk.

This research is supported by ESRC Brexit Priority Grant ES/R002053/1. Some of the text below will be published by UK in a Changing Europe soon, to support its Brexit and the NHS event. Thanks, as ever, to Sarah McCloskey, for outstanding research assistance.

Why focus on legal and policy aspects of Brexit for health?

Health matters: to the UK population; to the populations of other EU countries; to protect human dignity and as a basic provision of solidarity; some even say as a human right. Health matters to the EU referendum debate and its consequences.

Brexit bus

Health is also the perfect microcosm for studying the legal and policy dimensions of Brexit. That’s because, when you consider general legal questions in a specific policy context, they take on a considerably sharper focus. Narrowing the scope of inquiry down to health gives us more specific clarity on what Brexit means, and what legal arrangements will be disrupted.

Health law goes across all the traditional aspects of EU law – thus:-

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Legal and policy aspects of Brexit for health also go across all areas of EU law, and of equivalent categories of domestic law.

In this brief talk, I focus on three things: what we know; what we don’t know; and what might happen. All focused on health, but of course also generalisable to other social and economic sectors, or aspects of post-Brexit realities.

In all of this, it matters what kind of Brexit we have. Will there be a Withdrawal Agreement at all? Mixed political messages mean it is difficult to read into legal outcomes. Here are some possibilities. And each of these have different implications for what will be legally possible in the future.

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In the unlikely event anyone is thinking, ‘of course there will be a Withdrawal Agreement’ or ‘the UK will be able to negotiate a ‘deep and special relationship with the EU in the future’, remember ‘nothing is agreed until everything is agreed’ for the Withdrawal Agreement. Don’t forget the island of Ireland, which is far from resolved. Further, there is a significant gap between the position of the UK government (e.g. Davies’ speeches last week) and the EU position (outlined in these slides which were published by the European Commission on 21 February 2018).

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In all of this, it also matters what the future relationship(s) EU-UK will be. Here is Barnier’s ‘steps of doom’ slide (thanks, Steve Peers, for the description), from 15 December 2017.

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The slide shows 7 possible EU-UK relationships. These are real models, in the sense that they are existing trade agreements between the EU and various other states or groups of states. Achievement of the UK government’s desire to enter into a ‘deep and special relationship’ with the EU is of necessity bounded by what is legally and practically possible, both for the EU and for the UK. Existing models, rather than vague, unicorn-like, ‘cake and eat it’ aspirations, strike me as a sensible place to begin.

So, as Steve Peers, and others, including me, put it – the desired ‘deep and special relationship’ is hard to believe in. It has a mythical, unicorn-like quality.

Anyway – to health – First, let’s consider –

What do we know?

In terms of what we know – in the short to medium term, people are the biggest challenge. NHS and social care staffing relies on EU/EEA nationals.

Free movement of people within the EU has had a significant impact on patterns of staffing within the NHS. Approximately  200,000 EU27 nationals work in the wider health and care sectors – about 5% of the total workforce. EU27 staff are pivotal to the operation of the NHS, especially in London, the South East of England and Northern Ireland.

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The UK has never trained enough doctors for its own needs – some 28,000 doctors are non-UK nationals, around a quarter of the total. NHS England alone depends on some 11,000 doctors from the EU27, who make up 10% of all doctors. Add in the further 20,000 NHS England nurses and 90,000 social care staff from the EU27 and the sheer scale of reliance on EU migrant workers becomes clear. In anticipation of a “Brexit effect”, the NHS has already invited bids for a £100 million contract to recruit overseas doctors into general practice. And this is in a context in which the NHS already has many unfilled posts. Restrictive rules on recruiting non-EU nationals are already causing severe problems for the NHS; extending these to EU nationals will aggravate the problem.

The uncertainty posed by the Brexit negotiations to date has already affected staffing levels: the Royal College of Nursing reported a 92% drop in registrations of nurses from the EU27 in England in March 2017, and attributed this, at  least in part, to “the failure of the government to provide EU nationals in the UK with any security about their future”.

And we know that leaving the EU will be bad for research science and technology too. The loss of EU nationals among NHS and social care staff is also being replicated in other parts of the health sector, including research and innovation. One in six university researchers are non-UK European nationals – their position is equally insecure to that of the NHS workforce.

Potential threats to NHS staffing levels go beyond immediate concerns about immigration. Decisions about future regulatory alignment in services will determine whether the qualifications of medical professionals will continue to be mutually recognised between the UK and the EU27. Some see this as an opportunity to reset national standards. However, this is often based on a misunderstanding of the autonomy the NHS already enjoys. Rules related to linguistic capabilities have been in place throughout the UK’s membership of the EU to secure patient safety.

But there is clearly a trade-off between patient safety as served by restrictions on healthcare professions and patient safety as served by having a workforce sufficient to meet the country’s needs.

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EU nationals living in another EU country can access the treatment they need (S1 registration). Around 190,000 British pensioners live in the EU27 and rely on these reciprocal healthcare arrangements. The UK contributes about £500 million annually towards their care and receives £50 million for care provided to EU nationals in the UK. Average treatment costs for UK pensioners in the UK would be about double that of paying for their treatment elsewhere in the EU. If the UK did not conclude a Withdrawal Agreement with the EU, and were all these pensioners to return to the UK, the NHS would need some 900 additional beds to ensure sufficient capacity.

Just over one third of UK citizens in Spain are aged over 65. Retired UK citizens in Spain currently rely on EU law to secure residence, pensions, and, crucially, access to healthcare, with minimum administrative formality and no extra cost to themselves. Under the Spanish legal framework, it is extremely difficult for non-EU/EEA nationals to access the Spanish NHS, unless they are either working or have individually subscribed to an expensive special agreement with the Spanish social security authorities.

Michaela Benson at Goldsmith’s project shows the distress that many of these vulnerable individuals feel, as well as their resourcefulness in tackling the predicament they are in.

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Under the terms of the joint report, those already in another EU member state would still be covered by the EHIC. Until a legal text is agreed, it is not clear what will happen on the island of Ireland. For everyone else, the EHIC may not continue, except perhaps during the transition period.

It is possible that the UK will negotiate access to the EHIC as part of a future EU-UK relationship. Should it fail to do so, UK nationals who want to travel to the EU in the future—some 53 million visits from the UK to the EU27 take place each year—will have three options: they can purchase private travel insurance, travel without insurance and risk significant healthcare bills or simply not travel at all. The Association of British Insurers (ABI) has estimated that, if the EHIC is withdrawn, the cost of treating UK citizens abroad will be about £160m. Some patients, e.g., those with long term conditions or disabilities, will not be able to afford travel insurance.

 

If there’s no Withdrawal Agreement, and even if there is, in the medium term, in addition to people, products are also a big challenge.

Supply chains for pharmaceuticals, medical devices and substances of human origin may be disrupted. For instance, no kidney dialysis tubing is currently made in the UK.  If we have a disorderly Brexit, the UK has about four or five months of stock of most drugs, which is not enough to ensure a continuity of supply in the case of emergencies. Stockpile planning may be necessary for substances with a short expiry date, e.g. complex biologics.

The terms on which we trade with the EU for those products will determine the time new products take to reach the UK market, and the cost to the NHS. For instance, Canada and Australia have mutual recognition agreements with the EMA, but wait 6-12 months on average more than EU or US for new drugs to come to market. EU law on ‘parallel trading’ prevents the dividing up of the internal market in pharmaceuticals using IP rights. Parallel trade saved the NHS €986.2 million between 2004 and 2009 …

The UK relies on EU systems for pharmacovigilance, for information sharing on harmful medical devices, for organ sharing, for data sharing where patients are involved in clinical research … I could go on and on.

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Legal and policy aspects of Brexit for health have UK facing/inward facing implications too. Here is an attempt, led by the Faculty of Public Health, to make sure that post-Brexit, the new UK legal position is one of ‘do no harm’ to health. It seeks to secure accountability of executive action under the EU (Withdrawal) Bill.

Martin McKee & I wrote about it in the Lancet recently.

And of course, health is a devolved power, so the debate about repatriation of powers to Scotland, Northern Ireland, and Wales post-Brexit applies to health.

So that’s some of what we know. But there’s a great deal that we don’t know.

What don’t we know?

What would happen to health in any of the possible future EU-UK relationships/post-Brexit scenarios? How does health – patients, professionals, products, substances of human origin, services, systems – fare under different types of trade agreements? Here it is really difficult to find clear information about the legal implications of different types of agreements, or about patterns of trade that affect health.

One of the few published empirical studies on health effects of FTAs  showed that NAFTA was strongly associated with a marked rise in high fructose corn syrup supply and likely consumption in Canada. Lower tariffs lead to increased imports of energy-dense products like high fructose corn syrup, which lack nutritional benefits: so-called “empty calories.” Lower prices encourage manufacturers to use these products in cheap processed food, with consequences for obesity and the health effects that flow from it. The study provides evidence that even a seemingly modest change to product tariffs in free trade agreements can substantially alter population-wide dietary behaviour and exposure to risk factors.

What’s going to happen?

A ‘bespoke Brexit’ might be the only way politically that the future relationship between the EU and the UK can be achieved or conceptualised. This may well not have any systemic aspects at all – rather than ‘a relationship’ it would be based on a series of relationships in the plural, all governed by ordinary international law. We can legally conceptualise this – these agreements exist between the UK and other countries, and between the EU and other countries.

After all, we can overstate the notion that the EU is a rules-based system – there are plenty of examples of what Deirdre Curtin first named as an EU of ‘bits and pieces’, based on political expediency and practicality. The EU has always held in tension integration and diversity. So maybe we need a new legal conceptual framework to understand this – what Jo Shaw has called an ‘ever looser union’.

In general, perhaps, I think we may want to be thinking in terms of relationships, and how we might broker those. This is certainly the case for an area like health law and policy, which cuts across the ‘standard’ categories of EU law, and which isn’t ‘at the table’ in the Brexit negotiations.

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Here is one example.

Northern Ireland and Ireland provide perhaps the best example of how challenging Brexit is to health, health care and social services.

Effectively there is one healthcare workforce on the island of Ireland. People cross the border every day to provide health care services. They can do this easily because their rights to do so are underpinned by EU law. The Common Travel Area’s legal provisions in effect presume EU membership.

Services designed for both sides of the Irish border meet collective healthcare needs in the area. Sexual health, diabetes and eating disorders are all treated in this way, with integrated services offered to patients in both Northern Ireland and the Republic of Ireland. For instance, the radiotherapy centre at Altnagelvin Hospital in Derry/Londonderry is accessible to patients in County Donegal in the Republic who would otherwise have to travel long distances – to Dublin or Galway – to obtain the same treatment.

EU integration has also enabled economies of scale across the Irish border, such as the sharing of key healthcare services, particularly where specific expertise and facilities are not viable in a small region such as NI. In 2014 the NI and Republic of Ireland health ministers agreed that there would be a joint child heart facility established in Dublin. Between January and September 2017, 23 children travelled from NI to Our Lady’s Children’s Hospital in Dublin. Such cooperation is facilitated by the EU Directive on the mutual recognition of professional qualifications and on EU rules on data protection that enable the sharing of patient details.

So the relevant professional organisations for midwives have entered into a formal partnership agreement, which includes shared training, and is explicitly intended to ‘Brexit-proof’ existing collaboration.

Key messages

Key message: Brexit is bad for health. But, as my colleagues and I found, and published in the Lancet, the risks of Brexit for health systems vary significantly depending on what type of Brexit we have.

The law matters. The ways we have conceptualised EU law – and EU health law – are likely to be changing, as we remove ourselves from the system of EU law, to a looser collection of agreements with the EU on a range of different topics.

All of this will take time.

What I’m reading: on Higher Education, comparative health law, and Brexit

It’s been a while since I wrote about what I’m reading.  I was going to write separate blogs about each category of reading. But then I remembered: this blog is about my blended life.

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S Collini, Speaking of Universities (Verso, 2017).

I’d read some of Stefan Collini’s 2012 book before. His 2017 collection is a development of those ideas. I don’t dislike his style –  journalistic, punchy, pugnacious. It takes a bit of chutzpah to begin an academic piece with the chapter title ‘Handwringing for Beginners’, even when that’s a response to a critical review.

I’m particularly reading this with the purpose of reflecting on two things: equality and diversity in (legal) education; and what counts as ‘teaching excellence’. On the latter in particular, Collini has quite a lot to say, mostly indirectly (though not entirely: I enjoyed the riff on ‘excellence’ meaning both ‘good of its kind’ and ‘better than others’ on pp 42ff). One of his themes is that the very essence of the value of a university is that it cannot be measured in the ways in which contemporary western societies currently seek to capture ‘value’. A consumer-led notion of value, called ‘student satisfaction’, avoids the ‘difficult judgements about some human activities being more valuable than others’ (p 37). Education isn’t like a hotel experience (‘did you find the fluffy towels fluffy enough?’ (p 106)). Just asking consumer-students if teaching is excellent misses the point:

‘User dissatisfaction may sometimes be an important sign that genuine education is happening.’ (p 40)

‘The paradox of real learning is that you don’t get what you ‘want’ – and you certainly can’t buy it. I can bustle about and provide a group of students with the temporary satisfaction of their present wants, but in that case they would be right to come back years later and complain that I had not really made any effort to educate them. The really vital aspects of the experience of studying something … are bafflement and effort.’ (p 107)

‘A university education is what some analysts have called a ‘post-experience good’: a full understanding of the benefits cannot be had in advance.’ (p 139)

‘… good quality undergraduate education cannot be sustained in a void. … for the contagion of minds that is involved in good teaching to work, the teacher needs to be the product of a whole cultural and intellectual tradition, needs to understand the nature and status of the knowledge they are seeking to communicate, needs to be informed by a certain kind of professional ethos … and so on … universities have to be functioning healthily across the range of activities that constitute them if they are to successfully fulfil the task of undergraduate education at all.’ (p 216)

‘… [university] education relativizes and constantly calls into question the information which training simply transmits.’ (p 235)

Much as I want to agree with Collini – and I certainly agree with the observations above – this particular argument does worry me too. I know that sometimes students do have a bad experience; sometimes those who teach them in universities do not measure up to even the bare minimum of what would be expected by any reasonable outsider. Staff who don’t update their reading lists, who are late for class, who fail to do marking in time, who are unpleasant, sexist, racist – I have seen all of these over the 30+ years in which I have been engaged in HE. So I wouldn’t be for throwing out all attempts to set expectations of academic staff. I think there should be accountability when those expectations are not met. After all, even in the current way of funding universities, this is still public money that pays our salaries. But, as Collini puts it, ‘any genuine evidence [of teaching excellence] can only ever be a matter of judgement, not measurement’ (p 165). Academics are good at judgement: at articulating the reasons they reach the value positions they reach. Let us do this, not the ‘metrics’.

What this all means for equality and diversity is much more difficult. The massification of HE – one of Collini’s key themes – means that HE is now accessible to a more diverse body of students. But it also means that many of our students don’t share the cultural (and pedagogical) values that (in Collini’s words) ‘constitute’ a university. How far do we ‘educate’ students who don’t share those values into understanding and embracing them? How far to we meet them half way by seeking to understand the alternative values that drive them?

What it all means for equality and diversity is even more difficult in the other book I’ve been reading recently:

F Furedi, What’s Happened to the University? A Sociological Exploration of its Infantalisation (Routledge 2017)

I admit I am finding this book quite challenging. Its main thesis is that universities – along with the rest of society – have over-medicalised discomfort. Put very briefly, Furedi’s position is that 21st century students are encouraged to think of challenge, discomfort and difficulty as stress-inducing things from which they are entitled to protection, rather than inherent in the nature of higher education. Along with the culture of identity politics, ‘protest about discomfort’ becomes interwoven with ‘narrative about political oppression’ (p 48).

The implications for ‘teaching excellence’ are less directly articulated by Furedi than by Collini, but they are implicit.

‘In the UK, what’s referred to as ‘the student experience’ is deemed to be of fundamental importance … Universities are rated according to the quality of the student experience they provide. Ensuring that undergraduates have a problem-free and pleasant life is the precondition for gaining high ranking in the university league tables.’ (p 46)

Again, some of this resonates. I recall very well the robust interactions I had with our disability support unit about whether a student was entitled to more time to complete the assessment in a module that I used to lead. The assessment questions were given out at the beginning of the year. Students were encouraged to work on them throughout the semester. There was a system of ‘feedforward’ on their work in progress. We then told them, with 48 hours notice, which of the three questions they should hand in, to be marked. This particular student was accustomed to a blanket 25% extra time in examinations. My position was that giving 25% extra time in this assessment was not a ‘reasonable adjustment’ in the terms of the Equality Act.* The student claimed that my position caused her ‘stress and anxiety’.

But the thing is, students do suffer mental ill-health. And the more diverse the student body, the more difficult it is for those of us who comfortably inhabit the world of Higher Education to claim that we should not adjust for those who do not do so. It’s about power too. That’s what equality and diversity agendas require: the acknowledgement of difference, and the adjustment of notions of ‘the norm’ that operate institutionally and structurally to perpetuate (dis)advantage.

Comparative health law

I’m working away with David Orentlicher to get together our line up (of some 50 contributors) to the OUP Research Handbook on Comparative Health Law. Thinking about the research design (pairs of ‘American’ and ‘European’ authors, each agree what the ‘issues’ are in their particular topic of health law, write a piece together that articulates those issues (eg as a ‘problem question/scenario), then each explain and analyse how their jurisdiction(s) respond), and about whether one can ever really do comparative law has me returning to a theme of my academic life. So I’ve re-read some old favourites; and got up to speed with some new literature on comparative law generally. The 132pp Legrand piece in the 2017 American Journal of Comparative Law defeated all but a light scan, but I had a lovely email correspondence with Peer Zumbansen about his, and the other responses in the special issue. In particular, the responses got me thinking about how comparative legal method must involve a deep respect for the other, as well as a habit of critical reflection to try to see beyond those invisible intellectual habits that define what we think ‘count(s)’ as our particular (sub) discipline(s).

In terms of comparative health law, I’ve particularly enjoyed reading a trio of John Harrington’s publications, which draw out questions of the temporal, and, implicitly, spatial/jurisdictional, in medical/health law. When we take into account time (and, implicitly, space or place) as a dimension of medical/health law ‘we are thus required to take seriously its rhetorical form, meaning that legal reasoning establishes only provisional or contingent truths’ (2012: 495) This immediately sets us apart from ‘foundationalist’ (or others might call ‘positivist’) approaches to law and legal reasoning, according to which ‘the right’ legal answers can be deduced logically from relevant legal texts. Harrington draws on Mariana Valverde’s Chronotopes of Law (2015). His argument is that medical law ‘is marked out by a distinctive ensemble of chronotopes’ (2015, 362). Hence ‘the work of the critical scholar will involve investigating the cultural and social contexts in which these figures and forms gain plausibility’ (2015, 362).  And so ‘historicization remains an important task [for sociolegal scholars] given the tendency to abstraction and a-contextuality in liberal law more generally and in medical law, under the influence of bioethics, specifically’ (2015, 362-3).

Reading this is making me think (a) comparative health law is never feasible; and (b) the design of our comparative health law handbook will get us closer to feasibility than other designs would.

K Armstrong Brexit Time (CUP 2017)

I was lucky to read much of this in advance of publication. But it’s great to see it together in a physical book (I’m still a sucker for physical books). Armstrong’s theme of time has infused pretty much all of his scholarship, but it works particularly well for this account.

Michael Dougan’s Brexit edited collection is on order.

Most of my “Brexit and health” reading comes from links in Twitter though.

And there’s the ongoing interest in EU Health Law more generally: Andre den Exter has just generously sent me a copy of his edited collection on the subject. EU health law and policy without the UK will be, I imagine, quite a bit different to the way it is with the UK. That’s something the (just-landed) Jean Monnet Network, led by Katherine Fierlbeck, will be investigating over the next three years.

To summarise: the themes of my current reading

  • comfort/discomfort
  • time

Blending different types of reading brings out resonances and dissonances which I don’t think I’d get to enjoy if I stuck to just one project at a time, or compartmentalised the things I’m interested in.

*More on this to come: I’m collaborating with several others on a journal article on the topic.

What does the EU (Withdrawal) Bill mean for health law?

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Here (and here in longer form) is my take* on what the EU (Withdrawal) Bill means for health law and policy. The analysis is necessarily speculative: the Bill is just published, and hasn’t yet been through Commons or Lords. With the government’s narrow majority, it’s even more so.

The Withdrawal Bill repeals the European Communities Act 1972 and creates a new formal source of UK law: ‘retained EU law’ (an umbrella term in the Bill).

‘Retained EU law’ includes ‘domesticated EU law’ and EU-derived domestic law.

Domesticated EU law is EU law which is currently ‘directly applicable’ in UK law (applies without further ado once adopted at EU level). Health law examples include: Advanced Therapy Medicinal Products Regulation 1394/2007; the Data Protection Regulation 2016/679. One to look out for: the new EU Clinical Trials Regulation is yet to enter into effect. It would have to be operative immediately before Brexit day to be covered by the Bill’s terms. It will not be because the relevant database will not be operative in time.

EU-derived domestic law is UK law derived from EU law that is already incorporated into UK law. A health law example is UK compliance with Human Tissue and Cells Directive through the Human Tissue Act 2004, the Human Tissue (Scotland) Act 2004, and the Human Fertilisation and Embryology Act 1990.

Retained EU law will be amended.

It will be amended through primary legislation: e.g. an Immigration Bill. This has been misleadingly portrayed as ensuring continuity for EU citizens in UK unless changes are approved by Parliament. In reality, everything will change and this has serious implications for health and social care staffing and recruitment to health research posts in UK. It also has implications for UK nationals in the EU-27. When the Immigration Bill emerges, health law and policy community should therefore pay careful attention.

It will also be amended through delegated legislation. The Withdrawal Bill confers a great deal of power on ministers to address ‘deficiencies’ in retained EU law.

A ‘deficiency’ is defined by implication by reference to the view of the relevant minister. It is not defined any more than this, but the Government’s Explanatory Notes preclude its interpretation as merely any EU law ‘a minister considers… was flawed prior to exit.’

If the executive power to address ‘deficiencies’ is as sweeping as it appears, every aspect of health law pertaining to the UK’s withdrawal agreement could be altered by executive powers. For example, a change to the rights of R-EU nationals to healthcare access in UK negotiated by the withdrawal agreement/due to no-deal Brexit could be implemented via delegated legislation. Functions of EU entities (like the European Medicines Agency) that must, following Brexit, be carried out by existing UK public authorities or newly-established bodies could be defined by ministers alone. Where EU law currently requires and facilitates information-sharing with EU institutions, such as sharing data on cancer outcomes or sharing information about adverse effects of pharmaceuticals, executive decisions could decide what UK law will require. What’s more – even though health is a devolved power – the Bill essentially gives power to Westminster/Whitehall, and effectively undermines the role of the devolved nations/regions completely.

All of this is particularly worrying if there is a ‘no deal’ Brexit. The Withdrawal Bill (if adopted as it stands) gives executive power to remove regulatory oversight. If there’s no deal, there will be no external source of regulatory standards as there is now. If the UK government pursues a low regulation economy, as it has at times threatened, there will be serious ramifications for health law.

The overall lack of parliamentary scrutiny of changes to health law is particularly problematic: Even where health law is notionally ‘technical’, the ‘technical’ choices made have significant normative implications, including for individuals’ lives, their dignity, and perhaps even their identities. Thus democratic processes are necessary to its fair implementation.

What should we be doing?

Anyone who is worried about these proposed changes to UK health law – health lawyers and health policy stakeholders – should be persuading Parliament to provide effective scrutiny of the Withdrawal Bill. We should also watch what is proposed in the UK withdrawal agreement, primary legislation, and delegated legislation, and be clear about what it means for health.

There may be some small opportunities in this landscape of chaos. We’d be healthier overall in the EU: that much is clear. Much of what we need to do now is to secure as healthy a Brexit as we can – it’s damage limitation. But we could make some small changes to UK health law for the better. For instance, some want to change working time rules for the NHS. We could review our position that NHS plasma for those under 21 comes from Austria. We could bring together rules on marketing pharmaceuticals with those on more complex medical devices.

There are huge dangers. We stand to lose a human-rights inspired approach to health regulation, which has implications for public health issues such as tobacco or alcohol regulation. A low taxation and regulation agenda would be not far short of a disaster for health and the NHS.

What we do have on our side is the political capital of the referendum to use to get a seat at the table when the implications of Brexit for health are discussed.

Brexit bus

*with huge thanks to Sarah McCloskey, Brexit Intern, and Sheffield Law School for funding the internship

One year on

I couldn’t let the anniversary of the EU referendum pass without note. So I changed my Facebook profile pictureThe Plough to one that reminds me that it’s important to try to have in mind the biggest possible picture, and to take the long view.

And Jo Shaw and I wrote this blog, based on her work. It’s about the notion that the EU referendum represents ‘THE will of THE people’.