The Nuffield Trust, breakfast seminar, 26 January 2017
Brexit is bad for health, in the short, medium and long term, unless significant attention is paid to mobilising informed discussions on its effects, and what resource will be needed to mitigate them, to secure pro-health decisions in UK government, devolved regions, and among all health stakeholders.
There is nothing good for health about Brexit. I said this recently and my teenage daughter challenged me. “Why is Brexit so bad for health, Mum? Does it not wash its hands?” That’s not a bad metaphor. It really is as fundamental as hand-washing is to health.
I’ve been researching and teaching EU law for over 25 years. About 20 years ago, I began to be interested in all aspects of how EU law affects health law. From my point of view – the legal, big picture – there is nothing good for health about Brexit. And things are particularly bad because of the type of Brexit that this government wants us to have. This is a Brexit that takes us outside of the single market; that hopes for a future relationship with the EU that is less than the one the EU has with Norway, Morocco, or Tunisia. This is a Brexit that could easily be a ‘cliff edge’ or ‘plane crash’ Brexit, where no mutually acceptable UK-EU agreement is reached within the two years of Article 50 being triggered (by March 2019). Bear in mind it takes time to negotiate a trade agreement (the EU-Canada one took 7 years). And, at the same time, our government has to negotiate the exit agreement too.
When thinking about What is the impact of Brexit for health and social care?, I think we need to be mindful of three distinct, but overlapping things:
- The big picture
- Short term specific instances, where close scrutiny and oversight will be needed to avoid the worst case impacts on health and social care
- Medium to longer term strategic decisions, where being outside of the EU could mean opportunities for improving health and social care, if the relevant political conditions are in place and the relevant priorities are accepted
The biggest threat to health really comes from the threats to the economy even of an orderly Brexit, and the significant threat to public spending that comes from Theresa May’s ‘Plan B’ if she does not get a deal. That plan is for the UK become a low tax, low investment in public services, low regulatory standards economy. Even on Plan A, we will not have as good a trade deal as EU membership offers with our nearest geographical neighbours, and we will not (in the short term at least) have trade deals with the 124 countries that currently have or are negotiating trade deals with the EU. There’s a correlation between strong economies and population health. When a new country joins the EU, its population health improves (Greece, Spain, Portugal, Central and Eastern European states): it is not impossible to imagine the effect in reverse when a country leaves. And, as Nicholas Macpherson, Treasury permanent secretary from 2005-16, says:
“If you want to be a tax haven you would have to have some fairly big discussions with the public about how you are going to fund areas like health and the National Health Service.”
What makes these Brexit negotiations worse for health is that the way that EU law is structured – and so the way we suspect the negotiations will be structured – means that health isn’t around the table when health topics are being negotiated. Those topics are thought of in EU law as being about trade, or movement of people, or employment rights, or competition policy, and so on.
Short term specific instances, where close scrutiny and oversight will be needed to avoid the worst case impacts on health and social care
There is barely an area of health or social care services provision entirely untouched by EU law.
EU law gives rights and protections to health professionals, and other people who work in the NHS, and in social care, from other EU countries. Their qualifications must be recognized, they can come here and work with minimum administrative fuss, they can bring their families (children, elderly relatives), they are secure that their pensions will follow them if they go home. Around 5% of English NHS staff are EU nationals. Over 30 000 doctors from the EEA are currently registered with the General Medical Council to practise medicine in the UK. It’s particularly challenging for Northern Ireland, where many health professionals have a qualification from the Republic of Ireland which is currently automatically recognised in UK law. After Brexit, none of that will be guaranteed. The government could act now to secure the position of those who are already here, either for a transitional period or indefinitely. We can continue to press for that unilateral decision not to use people as bargaining chips, in this area above all where the general UK public are not hostile to migrant workers. For the future, the UK could introduce a points system into its immigration law to encourage the staff we need. A study of the immigration law changes in 2010 shows that this has had a gradual chilling effect on the flow of labour into the NHS. Virtually all the evidence to the House of Commons Health Committee’s Inquiry into Brexit and health and social care raises concerns about staffing. We will need close scrutiny of the position of citizens of the rest of the EU who are working in the NHS now. We will need to watch what is proposed for future migrant workers in the NHS and social care, particularly in areas where there are shortages of staff that cannot be plugged from the domestic labour market.
EU law sets minimum standards for working time rules, which mean medical professionals, and social carers, cannot lawfully be forced to work without proper rest periods, paid holidays, and so on. These have been tricky for the UK, and we used the opt-out and transitional rules of EU law to the maximum when they were being brought in. After Brexit there will be no EU labour laws to curb our government from setting whatever standards it wishes. We will need to make sure that labour laws are not changed in a way that puts patients or vulnerable elderly or other people at risk from being treated by health or care professionals who are exhausted.
EU law gives patients rights and protections. For instance, UK citizens have legal rights to emergency health care across the EU: after Brexit, each of us will need private health insurance whenever we go to an EU country. Retired British people living in EU countries can access medical treatment as if they were citizens: after Brexit, many of those people will choose to come back to the UK. Evidence to the HC Committee on Leaving the EU suggests ‘hundreds of thousands’ or ‘roughly a million’ people in this situation. We will need scrutiny to make sure that ‘acquired rights’ of UK citizens are secured in negotiations; if they are not, and maybe even if they are, then we will need contingency planning and injection of resource into the NHS to cater for returners.
The EU regulates the safety of all pharmaceuticals marketed in the EU, by enforcing stringent pre-market authorization rules, as well as post-marketing surveillance. It does this through the European Medicines Agency, which will relocate from London. Currently, pharmaceuticals with an authorisation from the EMA can be marketed anywhere in the EU. If the UK’s future relationship with the EU does not include that regulatory system, and it looks as if it will not, access to the UK market will be subject to an additional regulatory process. Faced with a choice of access to a market of patients in the whole of the EU, or the UK, pharma companies will act rationally and choose the EU, or at least the EU first. We will be later, with New Zealand or Canada. And it isn’t only EU product marketing standards that give access to the whole EU market. A new EU-wide clinical trials system gives single approval for clinical trials anywhere in the EU. So we will need to be vigilant to make sure that safe pharmaceuticals are still available in the UK, and that we can attract pharmaceutical companies to market here. Any additional costs associated with that (in the form perhaps of inducements) will have to be secured.
As Mike Thomson, CEO of Association of the British Pharmaceutical Industry, put it in June 2016
“We need to convince the rest of the world to come to Britain. We have to make sure we put our best foot forward to convince the rest of the world and global pharma that Britain is a great place to bring new medicines to market even when we leave the EU.”
I could go on:
Our clinicians and biomedical researchers have access to EU networks of collaborators, and EU data-sets, tissue banks and the like. Our data is comparable with EU data, and can be compared through Eurostat: this, for instance, revealed discrepancies with our cancer outcomes that changed protocols. Our life sciences researchers can also access significant amounts of EU research funding. All of this will need to be replaced post-Brexit.
In the public health domain, EU rules on wide-ranging matters – road infrastructure and transport safety, food and product safety, air and water quality, workplace health and safety and tobacco regulation – have had tangible effects on EU population health. Post-Brexit, we will have to make sure that these standards remain attentive to health.
Medium to longer term strategic decisions, where being outside of the EU could mean opportunities for improving health and social care, if the relevant political conditions are in place and the relevant priorities are accepted
This is the most difficult part of the brief Nuffield gave me! What – asks the Nuffield Trust – are opportunities for health associated with Brexit? I do not wish to be misunderstood here: my considered view is that there is nothing good for health about Brexit, and any so-called ‘opportunities’ are either based on misunderstandings of what EU law requires or are merely theoretical opportunities, subject to political arrangements and support which are not guaranteed.
Nothing in EU law directly affects the funding given to the NHS, or its structure. Nothing in EU law requires ‘privatisation’ of the NHS or social care provision in the UK. To the extent that this has happened, that is a political decision for national governments, under the legal division of competences. We have the NHS structure – and resources – we chose, not those imposed by the EU.
But some EU rules affect the way in which the NHS may be run. We have to comply with procurement rules, and EU competition law designed to ensure a fair playing field for ‘economic actors’. Outside of the EU, those rules will no longer apply. However, I think any opportunity here to improve health or social care is at best over-stated. Those EU rules are interpreted in ways which respect national decisions about how national health systems are organised and the values they express. There’s nothing per se to guarantee that future trade agreements that the UK secures won’t open up the NHS markets to non-UK providers: the EU had secured such an opt-out for health services for TTIP, outside the EU there needs to be a serious discussion about what strategic decisions need to be made for procurement laws in health, based on where we are self-sufficient, and where we are not. Clinical services are one thing; medical equipment, devices, supplies are quite another. In the latter case, our health institutions currently source many supplies from EU-based companies, and procurement laws need to support that if we are to get good deals.
Outside of the EU, we can have national determination of professional qualifications standards; working hours for health professionals and social care workers; access for non-national patients in non-emergency situations; marketing authorizations for medicines and medical devices; standards for clinical trials, and so on. We can have national determination of public health matters, such as environmental standards, transport safety, food and water quality, tobacco and alcohol regulation. We can take the opportunity of Brexit to have a national debate about what standards, what laws, what regulations will be best for health in the UK.
Sure, this does represent an opportunity. But wouldn’t we be wanting to have those discussions at least in the light of – if not with – other countries who are facing similar economic, demographic and clinical challenges within their health systems? Health and social care after all are related closely to medical science, an international discipline. But wouldn’t we wanting to interact with and inform ourselves about other countries which share our history of a state-backed health care system that provides care for all regardless of means? There’s no point in looking, for instance, to the USA for this kind of discussion.
Moreover, and finally, even under the government’s ‘Plan A’ for its future relationship with the EU, if we depart from the EU’s standards, we will make it very difficult for trade in products or services with our near neighbours, and we then won’t attract people or companies, and we won’t be the first market for new products or technologies. But what I fear is the ‘Plan B’ version of this: what will health and social care in the UK look like in the low tax, low investment in public services, low regulatory standards economy?
Hence, my considered opinion remains: Brexit is bad for health. But just as that bus was critical in the Leave campaign; so can health be critical in the national debate that informs decisions our government takes in the process of leaving. Now is the time to start salvaging from the wreckage (for the short term), and building a new settlement (for the longer term).