Five big issues for health and social care after the Brexit vote

Health is not an area of significant EU competence; its role is by and large limited to supporting member states in their health endeavours.

Nevertheless, the impact of the UK’s vote to leave the EU could have major implications for health and social care, not least because it has ushered in a period of significant economic and political uncertainty at a time when the health and care system is facing huge operational and financial pressures. While the impact on health and social care services of leaving the EU is impossible to forecast, it is clear that a number of important issues will need to be resolved, five of which we set out here.

Issue 1: staffing

The EU’s policy of freedom of movement and mutual recognition of professional qualifications within the EU means that many health and social care professionals currently working in the UK have come from other EU countries. This includes 55,000 of the NHS’s 1.3 million workforce and 80,000 of the 1.3 million workers in the adult social care sector (Health and Social Care Information Centre 2015; Skills for Care 2016).

It is widely acknowledged that the NHS is currently struggling to recruit and retain permanent staff – in 2014, there was a shortfall of 5.9 per cent (equating to around 50,000 full-time equivalents) between the number of staff that providers of health care services said they needed and the number in post, with particular gaps in nursing, midwifery and health visitors (National Audit Office 2016).

Similar problems exist in the social care sector, which has an estimated vacancy rate of 5.4 per cent, rising to 7.7 per cent in domiciliary care services. High turnover is also an issue, with an overall turnover rate of 25.4 per cent (equating to around 300,000 workers leaving their role each year) (Skills for Care 2015).

Until the UK extracts itself from its obligations under EU treaties, the policy on freedom of movement remains unchanged; however, given the current shortfalls being experienced in both the health and social care sectors the government must clarify its intentions on the ability of EU nationals to work in health and social care roles in the UK, not least to avoid EU staff who are currently working in the NHS deciding to leave to work in other countries.

Following the announcement of the referendum result, Bruce Keogh, NHS England’s Medical Director, and Jeremy Hunt, the Secretary of State for Health, have both publicly sought to reassure European staff working in the health service (Lintern 2016a, 2016b). Mike Padgham, chair of the United Kingdom Homecare Association, has also emphasised the importance of EU staff to the sector (Albert 2016). We endorse these views but would go further: providers of NHS and social care services should retain the ability to recruit staff from the EU when there are not enough resident workers to fill vacancies. This could potentially replicate the recent approach taken by the Home Office, by adding specific occupations to the Migration Advisory Committee’s shortage occupation list, which currently enables employers to recruit nurses and midwives from outside the European Economic Area.

Issue 2: accessing treatment here and abroad

There has been a great deal of debate about the impact of immigration on the NHS. Where immigration increases the population overall, this usually results in additional people needing NHS treatment. However, the average use of health services by immigrants and visitors appears to be lower than that of people born in the United Kingdom, which may be partly due to the fact that immigrants and visitors are, on average, younger (Steventon and Bardsley 2011). However, there is a lack of reliable data on the use of health services by immigrants and visitors, so it is impossible to make a robust estimate.

EU citizens are entitled to hold a European Health Insurance Card (EHIC), which gives access to medically necessary, state-provided health care during a temporary stay in another EEA country. The costs of treatment under these schemes can be subsequently reclaimed from the visitor’s country of residence via reciprocal health care agreements.

Under EU rules, people who come from elsewhere in the EU to live in the UK, or who leave the UK to live in another EU country, have access to health care on the same basis as nationals of that country. Estimates differ among the available sources. However, there are around 1.2 million British migrants living in other EU countries, compared with around 3 million EU migrants living in the UK (Hawkins 2016). There are concerns that the referendum result will mean that UK pensioners currently living elsewhere in the EU may return, increasing pressures on health and social care services.

The government will need to negotiate arrangements with the EU as to how both ‘ordinarily resident’ UK citizens and citizens from elsewhere in the EU will access health care services in future. With regard to the treatment of visitors from the EU in the UK and vice versa, the government should negotiate new reciprocal agreements (such agreements already exist with some non-EU countries) or alternatively seek to continue existing arrangements.

Issue 3: regulation

In many important areas, the government will need to clarify whether its intention is to repeal EU regulations and replace them with UK-drafted alternatives or to continue to abide by them. These include:

• the working time directive

• procurement and competition law

• regulation of medicines and medical devices

• regulation to enable common professional standards and medical education between EEA countries.

Working time directive

One of the most contentious pieces of EU legislation affecting the NHS is the European Working Time Directive, which was introduced to support the health and safety of workers by limiting the maximum amount of time that employees in any sector can work to 48 hours each week, as well as setting minimum requirements for rest periods and annual leave.

The directive allows doctors to opt out of the 48-hour limit (the UK is one of the few countries to make use of the opt-out); some specialties have been concerned that the 48-hour limit affects training, and a Royal College of Surgeons (RCS) review of the directive called for more widespread use of the opt-out (Independent Working Time Regulations Taskforce 2014).

If the government decides to repeal or amend the working time regulations (the UK law enacting the EU directive), this would have implications for NHS employment contracts and require significant changes to the Agenda for Change pay framework.

Procurement and competition law

The impact of EU competition and procurement rules on the NHS is contentious. As the relevant EU directives have already been incorporated into UK law, the government would need to repeal or amend the law if it wished to reverse current arrangements. Although a combination of the Competition Act, Monitor’s provider licences and the Procurement, Patient Choice and Competition regulations continues to prohibit anti-competitive behaviour by NHS providers and commissioners, withdrawal from the EU would allow policy-makers to modify these arrangements. However, this will depend on the agreement the UK reaches with the EU on their future trading relationship. Overall, it seems unlikely that leaving the EU will have a significant impact on NHS procurement and competition regulation.

Regulation of medicines and clinical trials

EU legislation provides a harmonised approach to medicines regulation across the EU member states. The UK is currently part of the centralised authorisation system, which is operated by the European Medicines Agency, based in London. The EMA is responsible for the scientific evaluation of human and veterinary medicines developed by pharmaceutical companies for use in the EU. Companies are able to submit a single application to the EMA to obtain a marketing authorisation that is valid in EU, EEA and European Free Trade Association (ETFA) countries.

The UK has its own national regulatory agency, the Medicines and Healthcare products Regulatory Agency (MRHA). However, this deals with national authorisations intended for marketing only in the UK. The inclusion of EEA and EFTA countries for the centralised marketing authorisation may mean that, despite leaving the EU, the UK could continue its relationship with the EMA. If this is not the case, however, pharmaceutical companies may need to apply to the MHRA for authorisation for any medicines they wish to supply to the UK.

While clinical trials are currently carried out on a national level, regulations due to take effect in 2018 will harmonise arrangements across the EU with the aim of creating a single entry point for companies that wish to carry out trials of new drugs on patients in different countries. During the referendum campaign, concerns were expressed by some in the pharmaceutical industry that leaving the EU would result in the UK losing out on some trials that might otherwise benefit patients as we would no longer be part of the harmonised procedure.

Issue 4: cross-border cooperation

As well as playing an important role in a range of public health issues, the EU operates systems for the surveillance and early warning of communicable diseases, managed by the European Centre for Disease Prevention and Control. These facilitate the rapid sharing of information and technical expertise in response to potential pandemics, communicable diseases and other cross-border health threats. Recent examples of such collaboration include the H1N1 pandemic and efforts to tackle anti-microbial resistance (AMR).

Collaboration across the EU has also enabled the UK to further its scientific research agenda, through our ability to access both European research talent and important sources of funding. For example, between 2007 and 2013 the UK contributed €5.4 billion to EU research and development (Office for National Statistics 2015) but also received €8.8 billion for research, development and innovation activities (European Commission). There are also other formal and informal networks across Europe – for example for some rare diseases, where the low numbers affected make it beneficial to work across the EU – that may be affected.

Members of the academic and medical communities have already expressed serious concerns about the impact of leaving the EU on the future of science and research in the UK (see, for example, Lechler 2016; Mossialos et al 2016). Nobel Prize winner Professor Sir Paul Nurse, Chief Executive of the Francis Crick Institute, has warned that Brexit could be a disaster for British science because of its impact on the free movement of researchers across Europe and on the ability of UK researchers to attract research funding (Ghosh 2016). We share these concerns and would argue that both issues should be prioritised in the forthcoming negotiations.

Issue 5: funding and finance

Vote Leave’s claim that money spent on the UK’s membership of the EU could be used to increase funding for the NHS was one of the most high-profile and contentious of the referendum campaign. The Vote Leave campaign argued that membership of the EU was costing the United Kingdom £350 million a week, which, if we left, could be spent on other priorities, such as the NHS. More specifically, Vote Leave pledged to invest an additional ‘£100 million per week cash injection’ in the NHS over and above the additional funding provided in the last Spending Review (Vote Leave 2016; HM Treasury 2015). Although leading figures from the campaign have distanced themselves from these claims since the referendum result was announced, voters are unlikely to forget them.

2016/17 is already set to be a very challenging year for the NHS, with service leaders facing huge financial pressures and performance against key targets deteriorating. In the long term, the most important influence on NHS funding will be the performance of the economy. Before the referendum, HM Treasury stated that a vote to leave the EU would result in ‘an immediate and profound economic shock creating instability and uncertainty’ and that in the longer term the UK ‘would be permanently poorer’ (HM Treasury 2016a, 2016b).

If these warnings prove to be correct and cuts in public spending follow, then the implications for a service already struggling to live within its existing budget would be significant. The NHS would also be affected by other consequences of economic instability. For example, a prolonged decline in the value of sterling would increase inflation, leading to higher prices for some drugs and other goods and services the NHS purchases. Much will depend on how the post-Brexit politics unfold and whether the new government that will be formed when the Prime Minister steps down in the autumn decides to re-open the plans set out in the last Spending Review (HM Treasury 2015). There will be an autumn statement and potentially an emergency Budget, and the Chancellor has already warned that taxes may have to rise and public spending be cut further. Even if the health budget continues to be protected, any further cuts to social care funding would have a significant knock-on effect on the NHS, as well as exacerbating the social care funding gap.

We have argued that the NHS needs additional funding over and above that announced in the Spending Review, particularly from 2018/19. We have also argued that additional funding is needed for social care, which has already suffered cuts resulting in around 400,000 fewer people receiving publicly funded social care. If additional funding is not forthcoming, or if promised spending increases do not materialise, the government must be honest with the public about how access to care and standards of care will be affected.

Conclusion

The Department of Health now faces the massive task of reviewing individual EU regulations and deciding whether they should be repealed or replaced with UK-drafted alternatives. Like other government departments, it has a significant capacity issue as it is currently implementing a programme to reduce the number of staff in the Department by about one third over the course of this parliament.

In addition, the Department will need to sift through the backlog of policy announcements and publications that were held back during the run-up to the referendum and decide which of these can wait no longer – the long-awaited childhood obesity strategy, for example? However, getting agreement to publish anything at this time may not be easy.

With the referendum result now clear, there are many issues at stake that will require the government’s urgent attention. While the immediate focus will be on negotiating favourable terms for trading and working with the EU after Brexit, the impact on health and social care should not be forgotten. If an economic shock materialises, the implications for patients and service users could be profound.