Brexit and the NHS

The decision for the UK to leave the EU signals a period of great uncertainty at a time when the NHS already faces huge pressures on funding and the way it delivers its services.

Possible repercussions include:

  1. NHS funding

In 2012, the Nuffield Trust estimated that the NHS needed an average annual increase in real terms of about 4% to continue to provide the same services. This was without taking into account increased demand due, for example, to population growth, increased levels of chronic ill-health and a rise in treatment costs. However, between 2010 and 2015, the NHS received an annual increase of just 1% (after inflation) and this low-level of increase was due to continue until 2020:  that would mean 10 years of serious underfunding, and the most austere decade that the NHS has ever experienced.

Then in June 2018 the government pledged to increase NHS spending by just over 3% a year from 2019/20 to 2023/24 – still below the 4% annual growth needed to keep pace with demand and much lower than what was needed to recover from years of underfunding. The money will be targeted at a fairly small number of ‘ambitions’, such as shorter waiting time targets for mental health care, the improvement of maternity care and cancer survival rates, and support for the integration of health and social care services. It won’t cover important areas like public health, staff training, building and other key capital investments, or the cost of debt repayment. All in all, even before any impact from Brexit, there’s a fast growing gulf between the funding available for the NHS and what’s needed to provide a quality, comprehensive service for patients.

Apart from political choices (e.g. the imposition of austerity measures that will serve to shrink the size of the State), one of the important influences on NHS funding is the performance of the UK economy. Before the referendum, the Treasury said that leaving the EU would lead to an immediate and profound economic shock, causing instability, uncertainty, and the UK becoming permanently poorer. There are fears of recession, leading to spending cuts, with some claiming that a post-Brexit economic slump could mean a cut of £10.5 billion to the Department of Health’s budget by 2019-20. This would equate to every hospital in England having to shed 1,000 nurses and 155 doctors.

Until now funds for the NHS have been ring-fenced – the government has guaranteed that money allocated for the NHS will not be spent on anything else. Despite this, NHS funding is already being used to supplement the budget for social care, which is not ring-fenced and has been suffering massive cuts. Even if the NHS budget remains ring-fenced in future, further cuts to social care funding, coupled with integration of health and social care services, will have a further knock-on effect on the NHS. And if the economy nose-dives, the government may feel it can justify removing the ring-fencing of the NHS budget or claim that a publicly funded, universal health service is not longer affordable.

  1. Treatment

At the moment, UK citizens can get free emergency health care when travelling in the EU. This includes, for example, UK citizens who are on dialysis who can still holiday in an EU country without disrupting their treatment.

There is some indication that, if all the British pensioners who currently receive health care in other countries through EU agreements had to return to the UK, it might cost the NHS an extra £1 billion a year to care for them – twice as much as the UK currently pays for these pensioners to receive care abroad. It would also require extra beds equivalent to two new hospitals.

As members of the EU, we currently benefit from membership of European Reference Networks in which EU countries share information, expertise and resources to find ways of tackling complex or rare medical conditions. Membership of the EU has also speeded up access to innovative medicines. Many such benefits will have to be renegotiated with Brexit.

The result of the referendum led to an immediate fall in the value of the pound. If this fall in value continues long-term, inflation will increase, leading to higher prices for some drugs and other goods and services that the NHS buys. The immediate shock following Brexit already appears to have led to delayed decisions about funding some medicines and treatments in case these are no longer affordable.

The Secretary of State for Health has indicated that, following Brexit the UK will leave the European Medicines Agency. This organisation, currently based in London but now scheduled to move to Amsterdam,  is responsible for the scientific evaluation, supervision and safety monitoring of medicines developed by pharmaceutical companies for use in the EU. One outcome may be that it will take longer for the UK to have access to new drugs and medical devices.

Until now, the UK has benefited disproportionately from EU funding for medical research. But academic and medical institutions have warned that Brexit may be a disaster for British science because of its impact on the ability of UK researchers to attract research funding and collaborators in the EU. Already, opportunities for new research funding from the EU are disappearing. British academics are being asked to leave existing EU-funded collaborative projects, or to step down from leadership roles, because their share of existing funding is no longer certain.

  1. Staffing the NHS and social care services

There are around 58,000 non-British EU citizens working in our health services, partly because it has been a struggle to recruit and retain enough permanent staff from within the UK. The impact of losing EU nationals could mean a serious loss of staff from the NHS and collapse in the social care sector.

In 2017, there were an estimated 57,000 EU nationals working for the NHS, including 10,000 doctors and 20,000 nurses. There has been some government reassurance that, while the UK remains a part of the EU, the EU policy of freedom of movement and mutual recognition of qualifications will remain in place. However, and not least because of the high level of anti-immigrant feeling revealed by the Referendum, many healthcare workers from the EU are being discouraged from working in the NHS or concerned about their uncertain legal position and ability to remain in the UK in the long-term. (In the eight months following the Referendum, the number of EU nationals registering as nurses in England had dropped by 92%.) Leaked government estimates suggest that, following Brexit, in addition to the existing shortage of 30,000 nurses, there will be an additional shortage of at least 20,000 nurses by 2025. (Some sources suggest even higher numbers).

There are also 90,000 staff from the EU working in the social care system – a system that, according to the Secretary of State for Health, would collapse without them.

  1. Regulation

Among its other aims, the European (Withdrawal) Bill (see below) will give government Ministers the power to change laws without parliamentary scrutiny (so-called ‘Henry VIII powers). If the Bill is passed, most regulations made by Ministers under this legislation will go through on the nod, unless Parliament objects, which it rarely does (the last time was in 1979). We can expect many of these regulations will affect the NHS.

For example:

  • The EU working time directive: It’s not clear whether workers’ rights currently enshrined in EU law will simply be dumped, or revised. For instance, the EU working time directive currently limits the maximum time that employees can work to 48 hours per week, and sets minimum requirements for rest periods, annual leave, maternity leave and so on. If the UK government decides to repeal or amend the working time regulations, this would affect NHS employment contracts and require significant changes to Agenda for Change – the national pay framework for health workers. Amending the working time directive could allow the imposition of new, controversial contracts for NHS staff. A revised directive would also ease the introduction of core elements of NHS England’s Five Year Plan, such as the extension of routine services over seven days a week (which many Trusts cannot afford to offer).
  • Procurement and competition law: Some people have suggested that leaving the EU will stop the privatisation of the NHS, as commissioning services would no longer be subject to EU competition law. Others suggest that the UK has introduced other measures that prevent anti-competitive behavior on the part of NHS commissioners and providers. At the same time, the shift to ‘integrated’ or ‘accountable’ care relies on the pooling of budgets across local health economies and collaboration between providers rather than competition.  This flies in the face of  Section 75 of the Health and Social Care Act (2012), which imposed competitive tendering for the provision of NHS services … but NHS England is anticipating secondary legislation to allow regulations like Section 75 to be changed without Parliamentary scrutiny.

In addition, less than a month after the referendum the new Secretary of State for International Trade announced that ten ‘economic powerhouses’, including China, Australia and Canada, had already committed informally to forming strong trade deals with the UK. If these are anything like CETA and TTIP that the EU has been negotiating, we can expect them to include provisions to open up the NHS to competition from foreign investors, and investment protection measures that will make it hugely difficult to reverse the privatisation of the NHS (see more on this below).

  • Regulation of medicines and clinical trials: the UK is currently part of a centralised European system (the European Medicines Agency or EMA) that evaluates new medicines for use in the EU. Leaving the EU means that the UK will lose influence over the EMA. The use of new medicines developed by UK companies will need to be authorised by both the UK and the EU, and the UK may not be involved in some clinical trials that might otherwise benefit patients.
  1. Public health and cross-border cooperation   

The EU has systems for the surveillance and early warning of infectious diseases, such as the European Centre for Disease Control. These systems allow information and technical expertise to be shared rapidly in the fact of potential pandemics and other cross-border threats to health, such as antibiotic resistance.

Leaving the EU will also mean re-assessing and potentially amending the EU legislation that currently determines aspects of public health such as air quality, tobacco advertising, etc.

  1. Implementing health service policy

Like other government departments, the Department of Health has been reducing its workforce in recent years: staff numbers will fall this year from 1,800 to 1,300. With government and civil servants having to focus on so many issues concerned with Brexit, there may not be the capacity to push through some of the massive changes previously planned for the NHS.

7. Negotiating and ratifying new deals

Trade deals, usually seen to be as dry as dust, have taken on a new significance in discussions about Brexit. While the UK has been a member of the EU the European Commission has negotiated all trade deals on our behalf: this means we now have little expertise in this area. Our bargaining power will also be reduced once we are outside the EU.

Recent free trade treaties negotiated (or under negotiation) by the EU have  posed considerable threat to public services like the NHS (see for example our pages on TTIP, CETA and TiSA). Even after we leave, we are likely to be subject to some existing treaties’ measures for some time. For instance, at the moment, the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada is waiting for ratification by the various EU member states – a process that may be completed before the British exit from the EU has been negotiated.  Apparently, investments made by Canadian corporations (or those multinationals with subsidiaries in Canada) between the implementation of CETA and the UK’s departure from the EU will continue to be protected by the investment protection measure, Investment Court System (ICS), for a further 20 years.

Although Brexit provides an opportunity for the UK to negotiate trade deals that are in the interests of the public, its far more likely that existing deals, like CETA, that are driven by corporate interests will provide the template for future trade agreements.

In addition, in order to get these deals signed, our government may agree to a lowering of the UK regulations and standards that protect our public’s health. To take the example of a future US/UK free trade deal, the US Commerce Secretary stated in 2017 that scrapping existing EU food rules would be “a critical component of any trade discussion” with the UK, while the UK Trade Secretary has said that “we have a low regulation and low tax environment that is only likely to improve outside the EU”.

Brexit could, in theory, provide an opportunity to address the lack of democratic process for mandating, scrutinising and validating trade agreements. Currently, the UK Government has no obligation to inform or consult Parliament about treaty negotiations. And Parliament has no formal role, structures or procedures for scrutinising treatie. It does not have to debate, vote on or approve treaties: it just has a limited and so far unused power to delay ratification. There are increasing calls for Parliament to have a greater role, especially as the new style treaties that cover services as well as goods now have implications for a wide range of important policy areas.

After Brexit EU law will no longer have legal standing in the UK. In a move to cope with this legal ‘black hole’ the government has introduced the European Union (Withdrawal) Bill.  This legislation is ostensibly concerned with transferring EU laws onto the UK statute books, so that all EU legislation passed while the UK was in the EU still applies after we leave.  However, as mentioned earlier, the Bill also gives substantial powers to UK ministers to change existing laws through secondary or ‘delegated’ legislation – a process that generally gets very little, if any, parliamentary scrutiny. While there is some acknowledgement that there will need to be some constraints on ministers’  use of these new powers, just what these constraints will be is still vague. As it stands, this legislation represents a massive transfer of power from Parliament to Government.

There is also a Trade Bill going through Parliament that deals with the process of ‘transitioning’ over 40 existing EU trade agreements to UK agreements. The Bill only covers agreements signed before we leave the EU – it does not cover future trade agreements. And, as the Government is keen to emphasise, the Bill is not about the trade agreements themselves, but about the changes to domestic legislation that may be necessary so that these existing deals can be implemented.  However, as with the Withdrawal Bill, the Trade Bill – if passed without amendment – will give the Government powers to change UK legislation simply by introducing secondary legislation using the ‘negative procedure’ so that a statutory instrument can become law without being approved by Parliament.

8. Effects of the EU Withdrawal Bill on the right to health

There is concern that the government is not planning to convert the EU Charter of Fundamental Rights into UK law. Article 35 of the Fundamental Charter identifies access to health care as a fundamental right. Without this charter, it will not be possible for UK judges to use charter rights when interpreting UK laws derived from the EU, and will weaken judges’ ability to uphold the law if it’s challenged by corporations in the courts. Laws include those protecting public health (for example, on health and safety at work, food safety, the regulation of medicinal products, and air and water quality). Any public health laws introduced after Brexit will be similarly unprotected.

Sources and further information

updated November 2018

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