Nouvelles

By Sabrina Germain, LL.M., J.S.D. (Cornell Law School), Attorney (New York State Bar), Lecturer in Law, University of Surrey, UK.

« Should the United Kingdom remain a member of the European Union or leave the European Union? » that is the question Britons will have to answer on Thursday, June 23 2016. Until then, Eurosceptics are leading an aggressive campaign to convince the population to exit the Union and Prime Minister David Cameron along with supporters of the “in” campaign are trying to sway the debate towards pro-EU discussions by sending out pamphlets and publishing policy and economic reports.

An exit from the European Union would certainly give rise to a great deal of uncertainty since it would require the renegotiation of several treaties. On the other hand, staying in the Union would also imply important renegotiations relating to the UK’s membership terms. Without a doubt, the answer to this simple but multi-layered question will touch every aspect of the UK citizens’ daily lives and affect every sector in Great Britain. Inevitably the National Health Service (NHS) will also be impacted. Across the board all services part and beyond the NHS will go through changes. From the provision of health care services to the regulation of clinical trials and public health, the European Union legislative framework transpires in the management of all of the system’s structure.

The “out” campaigners advocate that an exit from the Union would restore legal powers and democratic control over the UK resources. They believe that taxpayers would get their money back and would finally be able to make their own decisions rather than leaving things in the hands of bureaucrats in Brussels. This would imply shutting the door to a trade agreement that would impact the provision of health care services, limit the access to care of immigrants, and renegotiate crucial legislation relating to the food and drugs industry.

To the contrary, pro-EU supporters stress that staying in the Union could provide protection and more leverage for en bloc negotiations with the private sector. Negotiating with the pharmaceutical industry or any international partner may be more challenging without the support of other members in the region. Protecting the status quo and preserving leverage in negotiations in many sectors impacting the delivery of health care services remains crucial in a globalized world.

Private Providers

Negotiations of what could lead to the world’s largest ever free-trade agreement are on their way. Talks surrounding the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union have given rise to a lot of speculation. Most elements remain confidential and little has been release on the extent to which this agreement will affect public services.

One of the goals of the partnership is to open all economic markets to American providers. Removal of trade barriers may directly affect the NHS and indirectly impact public health in the UK. The agreement certainly could lead to locking in the privatisation of health services since a return to a publicly-run system would imply paying substantial compensation to American companies who would then be deprived of access to the open market. However, the European Commission has assured that it will protect the NHS and take health services out of the realm of the treaty.

Brexiters are convinced that leaving the regional alliance would help to shelter the NHS from the TTIP and private providers threatening the solidarity of the system. However, this may have little impact since the British government has already shown its commitment to the privatisation and the commercialisation of the sector through the enactment of the Health and Social Care Act (2012). This Act has irrevocably opened the door to competition in health care and triggered the erosion of its fundamental principle of equality and solidarity. Private providers are competing with public providers to gain access to the health care sector with little oversight from the government.

In this aspect the future of the NHS does not completely hinge on the outcome of the referendum. The consequences of the 2012 consumerist health care reform will nevertheless have their effects long after a potential exit, or may only be amplified with the status quo and the enactment of the TTIP.

Medical Tourism and Immigration

The NHS provides cover to all “ordinary residents” of the United Kingdom irrespective of their nationality. They are provided with free health care at the points of services and on all of the UK territory. This open-ended system attracts patients from non-EU and EU countries.

Eurosceptics have argued that medical tourists put a great strain on the NHS. However, studies show that the migrant population of the UK uses less of the NHS resources than its citizens. In the event that Britain was to exit the Union the great majority of European citizens present on the territory would be unlikely to move back to their home countries since they have acquired a right to stay under the Vienna Convention. Furthermore, most of the immigrant population in the UK works and pays taxes contributing to the financing of the health care system.

Rather, the unexpected cost of medical tourism comes with the NHS having to compensate other EU members for NHS patients seeking unproven procedures outside of the UK in order to bypass waiting lists in England. However, EU laws have provided tools to protect the NHS against this phenomenon. What is really at stake in the event of an exit is the cost of care for retired Britons living in the EU that will amount to tremendous costs no longer provided for under the reciprocity agreements with the Union.

Health Care Professionals

The regulation pertaining to medical professionals may have to be renegotiated in the event of an exit. European rules of reciprocity allow medical professionals to work across the EU helping hospital and clinics recruit medical staff in European countries. This in many aspects has helped Britain to deal with the shortage of the domestic medical staff. Outside of the framework provided by the Union, the hiring and qualifying process may become more difficult without clear regional regulations. Agreements will have to be individually negotiated with each EU member. This might trigger staffing issues on the long term, however it is unclear whether any shortcomings would have direct repercussions on the provision of care in the United Kingdom.

Public Health and Clinical Trials

European law heavily regulates public health. A potential deregulation or renegotiation of these rules could have indirect consequences on the health care system. Among many, transport, safety and labelling of food, but also water quality and workplace safety would have to be re-examined.

The European Human Rights Convention also protects the rights to privacy, data protection and dignity of patients. Overall it encourages good clinical practices. These European regulations facilitate organ donation and the funding of cutting-edge research. The impact of their renegotiation would have to be assessed further.

Finally, the access to shared information relating to communicable diseases may be more limited or renegotiated. This is a vital aspect of disease control that requires deep collaboration among neighbouring countries. Even though collaboration may not cease it may become more challenging in the event of an exit

Only the future will tell what place Great Britain will hold in Europe and what will happen of the NHS. With regard to health care, the referendum seems to have set the table for crucial discussions that will go beyond June 23 and that will, regardless, need to be addressed for future generations.

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