12. Memorandum submitted by
the Department of Health
Thank you for your letter to John Reid of 3
February, requesting information on how the Department of Health
envisages using ID cards within the NHS to control access to health
services, and asking what the practical issues are likely to be.
I would like to stress at the outset that we
see ID cards as a very important tool in helping prevent abuse
of NHS facilities by those who are not eligible for free treatment.
We therefore welcome the Committee's interest in this whole area.
Below I set out the legal position with regard to access to NHS
services and then indicate how ID cards would fit into our overall
programme to combat inappropriate use of NHS resources. Lastly
I set out some of the practical issues in using ID cards within
the NHS, including the protection of patient confidentiality and
the need to ensure that the use of ID cards does not prejudice
access to services by disadvantaged groups who are entitled to
them.
However I should first point out that these
are as yet initial thoughts, which we have yet to test with our
stakeholders within the NHS and social services. The Home Office's
document Identity cards: the next steps, published in November
last year, committed the Government to "working with the
NHS and other public services to maximise the benefits of a card
and minimise the compliance costs". Inevitably the process
of consultation with the frontline will have an impact on how
we use the card.
LEGAL POSITION
ON ACCESS
TO TREATMENT
First the legal position. Your letter talked
about controlling access to the NHS. The NHS Act 1977 puts a duty
upon the Secretary of State to provide free NHS services to people
present in England and Wales, irrespective of nationality, subject
to express provisions to make charges. Thus S121 of the Act gives
him powers to charge those who are not "ordinarily resident"
in Great Britain.
(i) Hospitals
The NHS (Charges to Overseas Visitors) Regulations
1989 (SI 1989 no 306) ("the charging regulations") have
been made under S121 powers and apply to hospital treatment only.
The regulations define an overseas visitor as anyone who is not
ordinarily resident in the UK, and require providers of NHS hospital
treatment to establish whether anyone deemed an overseas visitor
is liable to pay charges. "Ordinarily resident" is not
defined in the Act, but a House of Lords ruling in 1982 suggests
that it is someone who is "living lawfully in the United
Kingdom voluntarily and for settled purposes as part of the regular
order of their life for the time being, with an identifiable purpose
for their residence here which purpose has a sufficient degree
of continuity to be properly described as settled". Individual
trusts are responsible for deciding whether someone is, in their
view, ordinarily resident. If they are deemed to be ordinarily
resident they cannot be charged.
If a hospital trust decides that someone is
not ordinarily resident for the purposes of the charging regulations
they must then decide whether that person nevertheless qualifies
for one of the other exemptions set out in the charging regulations.
If the patient qualifies for an exemption he or she becomes an
exempt overseas visitor. Otherwise the patient must be charged.
I recently announced that amended charging regulations would be
laid to come into force, subject to Parliamentary approval, on
1 April this year, which would tighten up the regulations and
close some loopholes.
(ii) Exempt Treatments
Treatment in Accident and Emergency departments
is always free (but not treatment received thereafter as an in-patient
or by referral to an out-patient clinic), as is treatment for
a variety of diseases which are public health hazards (eg TB,
cholera, smallpox, malaria, rabies etc), compulsory psychiatric
treatment and treatment in clinics for sexually transmitted diseases
(although in the case of HIV services only the initial testing
and associated counselling is free).
(iii) Primary Care
At present the charging regulations do not cover
primary care. However, I announced on 30 December that we were
reviewing this and I plan to announce proposals for consultation
shortly. Broadly speaking we propose introducing a charging scheme
for primary care which will complement the existing hospital scheme.
I will ensure that the Committee receives a copy of the consultation
document.
THE ROLE
OF ID CARDS
The Government does not intend to change the
current legal framework within which individuals access the NHS
but rather to ensure that wherever appropriate charges are levied.
ID cards will be a key tool in doing this. Essentially we see
ID cards operating as a means of helping the NHS ensure that those
who should be charged are charged when individuals first come
into contact with a primary care practice or with a hospital.
I shall focus on hospital services first.
(i) Hospital Services
The charging regulations require that NHS hospital
trusts make reasonable enquiries to determine whether a person
is liable to be charged for treatment. Typically a trust would
first ask whether that person had been resident in the UK for
the previous 12 months or longer. If the answer is yes then the
person is exempt from charges. (From 1 April 2004, subject to
Parliamentary consent, the amended charging regulations will require
that the person has been legally resident in the UK for 12 months
or more.) The trust may make reasonable enquiries to satisfy themselves
that a person has indeed been (legally) resident for more than
12 months; one way of doing this would be to check with the National
Identity Register whether the person registered was legally resident
in the UK and had been so for more than 12 months. The National
Identity Register would hold information on an individual's current
and historical addresses and residential statuses (including the
entitlement to remain in the UK), which would make this possible.
What the Register might not be able to do is check whether someone
had registered, then gone abroad and returned. However, this would
be possible if ID cards were linked with the IND (Immigration
and Nationality Directorate) long-term e-borders programme which
would allow electronic embarkation controls to monitor movements
in and out of the country.
If the person has been in the country less than
12 months the trust will make enquiries as to whether he or she
is nevertheless ordinarily resident, using the interpretation
established by the House of Lords in 1982. If the trust decides
that the patient is not ordinarily resident they must then decide
whether any of the exemptions set out in the charging regulations
apply to the patient. These exemptions include, to quote a few
examples, people who come to the UK to take up permanent residence,
anyone employed (from 1 April 2004, subject to amended regulations
coming into force) by a UK-based company, UK citizens temporarily
working abroad, asylum seekers and those granted refugee status.
An ID card would help NHS staff ascertain that an individual was
indeed eligible for free NHS treatment. For example, the National
Identity Register would indicate the immigration status of individuals
and the terms and conditions of that entitlement to remain in
the UK, including whether they were eligible to work.
I must stress however that because the criteria
for registering a person for an ID card and the criteria for free
treatment are not, and realistically could not be, wholly aligned,
possession of an ID card in itself will not guarantee free treatment,
nor will not having an ID card render an individual liable to
charges. For example, the employment exemption requires the overseas
visitor to be in employment, not merely to have the right to work,
and so a letter from an employer might also be required. And individuals
from countries with whom the UK has a reciprocal healthcare agreement
will usually not have an ID card if they are here for a short
visit but will be eligible for free treatment for conditions which
arise during the course of their visit.
(ii) Primary Care
There are currently no charging regulations
in place relating to primary care. However, as I mentioned above,
we intend to consult on introducing a charging regime into primary
care which would complement the hospital charging regime. ID cards
would have a prime place in ensuring that those who should pay
charges do so, but GPs would still provide any emergency or immediate
and necessary treatment, based on their clinical judgement. They
will also be able to continue to see and treat patients on a private
fee-paying basis. As I mentioned above, I will bring forward proposals
for consultation shortly.
PRACTICAL ISSUES
IN USING
ID CARDS
You asked what the practical issues are likely
to be in using ID cards. Probably the most important issue for
the Department of Health and NHS is ensuring that ID cards support
the duty of confidentiality owed by NHS staff to patients. In
using ID cards we would need to ensure that no confidential patient
information could be disclosed, either deliberately or inadvertently,
to unauthorised persons. The National Identity Register would
not contain any such confidential information and checks of ID
cards would simply be to help verify ensure whether an individual
was or was not eligible for free treatment. We have been very
clear that organisations using the National Identity Register
to verify identity will not be able to access health information.
It will be important to ensure that there is
no room for breaching confidentiality, nor for the appearance
of any such breach. So we intend to ensure that the IT infrastructure
being put in place to support wider access by clinicians and other
authorised persons to patient records will be kept quite separate
from any IT infrastructure required to handle ID cards.
A linked point is ensuring that ID cards are
introduced in such a way as to retain public support for their
use to demonstrate eligibility for free NHS treatment. We need
to ensure that ID cards are not used in a discriminatory fashion
which raises barriers to disadvantaged groups accessing NHS care
to which they are entitled. This will be an important point to
test when we consult more widely with stakeholders.
A further practical issue is the IT investment
which will be required to support checks of ID cards. We do not
have firm figures for this at present as it requires further work
on how exactly a card will be used and studies of the technologies
which will be available once the scheme is up and running. We
will continue to work with colleagues in the Home Office to ensure
that the needs of the NHS are built into the design of the scheme
from the outset.
Rt Hon John Hutton MP, Minister of State
March 2004
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