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.