The National Health Service (NHS) is one of the UK’s most important institutions. Since its establishment in 1948, it provides healthcare to all citizens of the United Kingdom of Great Britain and Northern Ireland, regardless of their economic status. It is also one of the country’s largest employers, employing thousands of medical and non-medical staff members. Given its long history and multiple functions, the NHS is governed by a range of laws. As a British mechanism, it is primarily subject to the UK’s domestic rules, as these apply in England, Scotland, N. Ireland, and Wales. At the same time, the NHS is regulated by the applicable laws of the European Union (EU).
On 29 March 2017, and following a national referendum of 23 June 2016, the UK government triggered Article 50 of the Lisbon Treaty to initiate the country’s departure from the EU. The so-called ‘Brexit’ is expected to affect the legal, economic, social, and political institutions of the UK, including its healthcare system. For the campaigners in favour of Brexit, the prospective detachment from the EU was portrayed as saving the UK £350 million per week, which could be reinvested in the NHS. But as time passes, this argument fades away.
An inquiry was commenced by the House of Commons Health Committee about that issue, but was abruptly disrupted by the general election of June 2017. In its report, the Committee pointed out six areas which are likely to be affected by Brexit: health and social care workforce; reciprocal healthcare coverage and cross-border healthcare; medicines, products medical devices, clinical trials and wider health research; public health, including environmental protections and communicable diseases; resources, including EU agencies, funding programmes, networks and health in overseas aid; and market functioning and trade agreements. Because of its disruption by the 2017 election, the Committee has managed to cover only the first two areas from the above list. The present article will share the Committee’s views on the examined topics and shed some light on the areas which remain unaddressed.
Which Areas of UK’s Healthcare System will be Affected by Brexit?
Health and Social Care Workforce
One of the immediate effects of Brexit will be on the workforce of the health and social care sector. Today, over 60,000 Europeans are employed by the NHS and another 90,000 work in adult social care. To this day, those workers have been treated as nationals in terms of their immigration status and conditions of employment. However, the UK’s withdrawal from the EU will change that, for both the current and the future staff of the British healthcare system. A new immigration and professional qualification regime will need to be adopted post-Brexit, to regulate the entrance, residency, and employment of EU medical and social care workers in the UK. The impact of Brexit on this domain is already visible. In March 2017, a 92% drop was reported in the number of EU nurses registering to the NHS, which has been linked to the failure of the British government to provide EU workers with security about their future. A decline, although much lesser, has also been observed after the Brexit referendum in the applications of EU licensed doctors to the NHS. Again, the underlying uncertainty of workers about their immigration and employment conditions has been identified as the main reason for this trend.
Reciprocal Healthcare Coverage and Cross-border Healthcare
Apart from working rights across the EU, freedom of movement allows EU visitors who possess a European Health Insurance Card to use the health care services of the NHS. Conversely, the great number of UK travellers or pensioners who reside to European countries can currently receive free or low-cost health services outside the UK. This reciprocal healthcare coverage will end once the UK exits the EU. Although the UK might benefit from the fact that it will no longer provide health services to non-UK nationals, it will need to cover the health expenses of the UK nationals (and particularly pensioners) who were previously insured by EU countries. The number of people who will need to be covered by the NHS post-Brexit will be much greater than before. According to reports, about 145,000 UK pensioners rely on EU health services at the moment, whereas only 4,000 EU pensioners are registered to the NHS. Considering the number and the age of those people, it is expected that the British healthcare budget will be significantly affected after Brexit.
Medicines, Products, and Devices
The EU regulates the licensing and supply across its members of all kinds of health products -from pharmaceuticals and medical devices, to substances of human origin, like blood and organs. The competent authority for this work is the European Medicines Agency (EMA), which, until recently, was based in London and is now relocated to Amsterdam. It is not yet certain whether the UK’s withdrawal from the EU will also terminate the country’s participation in the above licensing mechanism. But if it does, the UK will no longer be able to distribute its medical products across the EU at the current levels of high speed and low cost. Of course, the UK has its own medical authority, called the Medicines and Healthcare Products Regulatory Agency. However, this organisation deals exclusively with the supply of medicines at national, rather than at cross-border level. If the UK wishes to keep using medical products from the EU or supply the community with its own ones, it will need to make a special arrangement with the EMA.
EU law has played an important role in regulating a spectrum of health issues which concern its member States. Within the years, it has developed a comprehensive and innovative legal framework, controlling: the consumption of foods and products which are responsible for diseases like obesity and diabetes; the distribution of tobacco and alcohol; and the control of toxic emissions from cars and industries which could be harmful to people’s health. Also, unlike any other system, the European community has shown outstanding competence to respond to cross-border health threats, like Ebola, in a co-ordinated and effective manner. By leaving the EU, the UK will no longer adhere to the community’s health agenda and the actions taken for the improvement of the EU citizens’ lives. That is expected to have an impact on the lives of millions of British citizens, especially those dealing with long-term and serious health conditions. Likewise, the UK’s departure from the EU law will mean that the decisions of the EU courts on matters of healthcare will no longer bind the UK and its regulatory bodies. This might be detrimental to any British citizens, who will seek to protect their rights in the future against national healthcare service providers.
The EU is a significant source of funding. Initiatives, like the Horizon 2020 programme, and bodies, like the European Social Fund and the European Regional Development Fund provide EU members with the necessary means to conduct research and make significant discoveries in the field of healthcare and medicine. Arguably, the UK’s expenditure towards the EU funds will cease, which may be viewed as a boost to the national budget. However, it is estimated that the total saving from those costs will be only 0.31% of the national income. By contrast, the amounts of funding that the UK will miss post-BREXIT are much greater. Since 2001, the EU Investment Bank has provided over €3.5 billion to the NHS. Also, every year, a number of scholarships are awarded to British universities and institutions for the conduct of postgraduate studies or conferences on sciences, like medicine. The UK’s departure from the EU will mean that these funds need to be covered by domestic sources. Apart from funding, the current freedom of movement allows EU scientists to visit the UK for the purposes of their research and vice versa, without visa or other restrictions. Withdrawal from this network would deprive the UK from the above benefits, and have a negative impact on the quality of its academic and research institutions on the area of health studies. Concerned about this outcome, members of the academic community of the UK have already voiced their opposition to Brexit. But only time will tell whether these fears will eventually come true or not.
Market Functioning and Trade Agreements
Finally, Brexit will have a market and trade impact. The driving force behind the birth of the EU was the creation of a single market among its members, which would allow the conduct of economic and trade activities without severe tax or regulatory barriers. The above benefits extend to the provision of healthcare services within the EU. They contribute to lower transaction costs between the member States, and which in turn can contribute to more effective patient care. A shift in the existing framework may entail the imposition of quotas, tariffs and other measures that would affect the flow of goods and services between the single market and the UK. This will affect the management of British hospitals and NHS clinics, the procurement of medical supplies, and eventually, the provision of services to patients.
How Intense will the Impact of Brexit be on the UK’s Healthcare System?
The areas of the UK’s healthcare which are likely to be affected by Brexit are numerous and diverse. But whether this impact will be minimal, substantive, or devastating for the NHS has yet to be measured. This value will primarily rely on the type of Brexit and the deal which the UK and the EU make within the following years. Insofar as negotiations are still in progress, one can only estimate the magnitude of the potential outcomes, rather than make accurate predictions. But broadly speaking, this impact will vary in the scenarios of a ‘soft’ and a ‘hard’ Brexit.
In general, a ‘soft Brexit’ would mean that the UK maintains a relationship with the EU and has an interaction with the single market, although not under the same conditions as before Brexit. This situation resembles closely the relationship of Norway and Lichtenstein with the EU. Certain limitations and restrictions will apply in terms of medicine trade, conduct of healthcare research, and movement for the purposes of work or treatment at the NHS. However, it is likely that the rights of EU nationals who already reside or work in the UK will be secured from a sudden discharge. Still, it is up to the negotiating parties to decide as to how these rights will keep operating in the future and whether they will be affected in the long run by UK’s withdrawal from the EU laws and courts of justice. Likewise, the UK will cease to be part of the law-making process in the European Parliament. This may have an impact on the health benefits that many of its nationals have acquired within the EU.
By contrast, a ‘hard Brexit’ would mean that the UK abandons the single market and maintains full control of its borders with regards to circulation of people, goods, and capital. This would be similar to the relationship that the EU has with any third countries which are not its members. In this scenario, the conduct of any transactions between the UK and the single market in the context of healthcare will be subject to mutual tariffs, quotas and other regulatory and tax restrictions. Likewise, the domicile of EU nationals who already work or study in the UK and vice versa, and the entry of newcomers in the future will be subject to immigration requirements, like the possession of a visa or green card. Of course, it is up to the two sides to enter a trade deal, like that between the EU and Canada. Although this might fall outside the scope of a hard Brexit, it would ease many restrictions in the commercial and scientific collaboration between the UK and the EU. It is also possible that the UK enters a deal with the USA or with Asian countries for the exchange of low-cost and effective healthcare services. But this may give rise to a new kind of dependency of the UK on a foreign system, and such a relationship seems to have been a contributing factor towards Brexit in the first place.
The UK has been an EU member since 1973. 43 years later, the country decided to withdraw membership and follow its own course. The decision of a sovereign State to leave the EU family must be fairly respected. But at the same time, the consequences of this act cannot be overlooked. There is no doubt that Brexit is one of the most important legal events in modern British history. The impact of such major legal reform will stretch across various sectors, including the UK’s healthcare system. Although a national body, the NHS has been heavily governed by the regulatory framework and the authoritative mechanisms of the EU.The early studies support that the impact of Brexit on the NHS will be negative. Yet, the conclusion as to how post-Brexit NHS may be inferior to pre-Brexit NHS will rely heavily on two factors. The first is the type of Brexit that will be agreed. A hard Brexit might have severe implications for the NHS, whereas a soft BREXIT may only cause some changes in the British system. The second factor is the passing of time. Until the NHS ‘stands on its own feet’ and operates outside the EU system, one can only make assumptions about its survival. It is hoped that a feasible and legally viable solution will be reached, so that the lives of those relying on the NHS will not be dramatically affected.
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