Overseas Patients and Unpaid Medical Bills – Where Do We Draw the Line?

The issue of unpaid medical bills arising from the treatment of overseas patients has featured in the news recently as the Government attempts to recoup cash wherever it can given the current funding crisis in the NHS.

In October 2016 the Government announced that it was expecting to fall short of its target to recover £500m annually from the cost of treating overseas patients. The Department of Health then refined its recovery target for 2017-2018 to £346m. The NHS Imperial College Trust, home to the ongoing BBC 2 documentary ‘Hospital’, spent £4million on the treatment of overseas patients in the last year alone but recouped only £1.6milion.

Because the NHS is a residency-based system, an overseas visitor is deemed to be any person who is not “ordinarily resident” in the UK. Ordinarily resident is defined as when residence is ‘lawful, adopted voluntary and for settled purposes as part of the regular order of their life for the time being’.

So, what happens when somebody who is not an ordinary resident requires access to the NHS?

With regards to a GP surgery or primary healthcare, very little is different. GPs do have the discretion to accept any person (including overseas visitors) as a patient. They are not able to refuse an application for registration on the basis of race, gender, class, age, religion, sexual orientation, appearance, diversity or medical condition. Therefore this discretion is strongly limited and the GP has a duty to provide treatment that is free of charge should they believe the treatment to be immediately necessary or an emergency.

NHS bodies must ensure that they provide any treatment that is immediately necessary to any person even where they have not paid in advance. A failure to do so may be unlawful under the Human Rights Act 1998. They should also provide urgent treatment but non-urgent treatment should not be provided unless an estimate for the full charge is received in advance of any treatment. What is deemed to be immediately necessary, urgent and non-urgent is left to the decision of attending clinicians but this should not be taken to mean that treatment should then be provided in an unlimited manner. All maternity services are considered to be immediately necessary in the interests of protecting the life of both mother and baby.

No charges will be made for any overseas visitor who requires access to accident and emergency services (including walk-in centres), family planning services (excluding termination of pregnancy), diagnosis/treatment of specified infectious diseases, treatment of sexually transmitted infections or any treatment required for physical or mental conditions caused by; torture, female genital mutilation, domestic violence or sexual violence unless the visitor has travelled to the UK for the sole purpose of seeking that treatment.

A legal obligation is placed on the NHS to determine whether Charging Regulations apply to an overseas visitor. They are to make reasonable enquiries to determine the circumstances of that person and to decide whether they meet one of the categories of exemption (have paid a health surcharge, Refugees or Asylum Seekers, those receiving compulsory treatment under the Mental Health Act 1983 amongst others) or whether they are liable to charges. Where a patient is chargeable, the NHS body must make and recover a charge for any treatment provided. There is no option or authority to waive the charge. Where a patient is suspected to be liable to charges they will be referred to an overseas team member who will interview them. There is an emphasis on making the patient aware that a charge may be applicable as soon as possible.

NHS bodies are able to accept payment by any method acceptable to them. Where treatment is provided in advance of payment, it is recommended that the patient is asked to sign an undertaking to pay form but an overseas visitor will be liable to pay the debt regardless of whether this form is signed or not. NHS bodies are advised to seek legal or financial advice where they do not possess the necessary experience to deal with the matters facing them. Where they are facing recovery of overseas debt they must consider employing the services of a debt recovery agency specialising in this area except where it is clear that the person in question will be unable to pay.

Debt is written off where a patient subsequently dies, where it is not cost effective to pursue the charges given the patient’s financial circumstances or where all reasonable steps to recover that debt have been taken. However this debt will still be recoverable should circumstances change.

A member of the Ashtons’ medical negligence team, says “We are placing a huge amount of pressure and responsibility upon our patient-facing teams to become politicians, immigration officers and decision makers in relation to what constitutes immediate, urgent and non-urgent treatment. Recoverability of costs, where possible, is a good and sustainable approach but I suspect that there are numerous areas in which we can make savings far closer to home where debt must and should be written off. There is a huge amount of public pressure for the Government to recover costs but what we must be careful of is restricting healthcare when it is needed; the UK does pride itself on the NHS after all”.