On January 1st this year, the UK left the EU’s single market and customs union, removing many of the underpinning laws and structures for health and health care in this country. Pharmaceutical companies and the DHSC in Whitehall set contingency plans live to keep vital medicines flowing. The Trade and Cooperation Agreement (TCA) signed just days before put into place new rules for health care abroad and accessing science funding.
Eleven weeks on, the other side of a terrible wave of Covid-19 and the historic rollout of vaccines on both sides of the Channel, these events can already feel as though they are passing into history. But the reality is that Brexit is already having a tangible impact. As we warned last year, the EU is threatening to use export blocks on vaccines as it casts around for ways to accelerate from a sluggish start.
This is only the beginning. The rest of this year will see multiple issues that were set loose by leaving the single market bubble to the surface in health care and health policy.
1. The Pacific specifics
Keen to realise a major promised upside of Brexit, the government has charged ahead in trying to sign trade deals with other countries. Perhaps most ambitiously it is applying to join CPTPP, which is an agreement between a bloc of Pacific countries including Japan, Mexico and Australia.
CPTPP includes Investor-State Dispute Settlement, a system with special courts of arbitrators defending investor rights. These were controversial in US-EU trade negotiations, because of fears that companies could use them to challenge public health regulation or the winding back of private provision in the NHS.
The CPTPP’s version includes the concept of “indirect expropriation”, where changes that harm an investment without actually confiscating it can be challenged. It states that “non-discriminatory regulatory actions by a party that are designed and applied to protect legitimate public welfare objectives” do not constitute expropriation, “except in rare circumstances”. This may provide cover for changing public health regulations, especially around tobacco which has a further exemption, more clearly than it does for changes to the NHS.
It also includes provisions that may have an impact on medicines pricing – notably “patent linkage”, where the medicines approval process has to apply legal tests to cheaper generic medicines. Several other provisions that would extend the period during which companies can exclude generic competition were suspended by the CPTPP members after the USA walked out. But it is possible that the USA will return and reactivate them, although whether it would do so will depend on a clash between the interest of the new Democratic government in low medicine prices against the country’s powerful pharmaceutical industry.
2. The mutual recognition of professional qualifications
Before January 1st, regulated health care professionals from the EEA and Switzerland could practise across each other’s borders under the European legal framework for the mutual recognition of professional qualifications.
The TCA does not replicate this. As a result, the UK’s remaining option is to renegotiate separate agreements with individual regulators in 27 member states. Some agreements are in place with specific health regulators in the Republic of Ireland, and are complemented by the freedom of movement between the UK and Ireland under the Common Travel Area (CTA). Where no such agreement exists, UK professionals are considered on a par with other foreign applicants.
To reduce disruption, qualifications that had previously been recognised in the UK will continue to be the case, and ongoing applications for mutual recognition or existing contracts can be carried to term – by the end of 2023 from the EEA, and by the end of 2025 between the UK and Switzerland.
However, since January 1st regulators are no longer obliged to recognise temporary service provision, and will have control over professional requirements at the end of the transition period. This situation may reduce the attractiveness to aspiring health professionals of training in the UK, where qualifications are valid in one country, as opposed to the EU where they are valid across all 27 member states.
3. Missing migration
In our report we showed that EU immigration to the UK fell slowly in proportion to other overseas arrivals over the past five years, with all immigration then plunging in 2020 during Covid-19 restrictions.
These patterns have affected health and care, and particularly nursing and social care, which were experiencing significant shortages before the pandemic, and relying on a non-UK workforce to stop these worsening. We have estimated that nursing and social care experienced the equivalent of a one-year shortfall in workforce supply in 2020. This trend has partly been offset with relatively good retention during the pandemic, although the latest satisfaction survey for nurses suggests that this may not last.
The new UK immigration system, which now considers EU worker applicants on a par with those from the rest of the world, ensures that social care applicants do not pass the salary or skill thresholds to qualify for working visas. Relying on present low employment security in the UK to attract domestic social care workers cannot be considered a strategy for sustainable recruitment. While nurses will be able to take up positions in the UK, for those from the EU this will become more difficult and expensive.
The latest Budget remained silent on much-needed funding and reform to increase the attractiveness of social care. For nursing, the subsequent poorly received 1% pay rise recommendation is likely to generate further unwelcome publicity.
4. The data divide
As a third country outside the General Data Protection Regulation, by default data can only be transferred from the EU to the UK with special contracts or certification. This applies unless the European Commission judges UK protections to be “adequate” – something it has not yet done.
This would be a significant disruption to uses of information for health. The DHSC has been putting plans in place for major, national data flows. But as the Wellcome Trust notes, “the transfer of personal data between the UK and EU is a critical component of research collaboration”, often on a much smaller scale.
The TCA set out a grace period to the end of April where the status quo continues, extended by two more months if neither side objects. The Commission’s draft decision on the UK is promising. But the UK’s enthusiastic use of digital surveillance for law enforcement has raised issues within the EU legal system before. A shock this year cannot be ruled out – and even with a decision the issue will return if UK laws clash with the Commission or Court of Justice in the future.
5. No return to normal in Northern Ireland
Northern Ireland is different from England, Wales and Scotland in sharing a land border and the single market in goods with the EU. This means health will be affected in different ways that are only beginning to unfold.
When we spoke to industry representatives for our research, Northern Ireland tended to be very high on their list of worries. They feared requirements on customs checks, medicine tracking and the location of key personnel would cut it off from the Great British market that had traditionally supplied it.
This risk was recognised last year by the UK and EU, which set a one-year extra transition period where key new medicines rules would not be applied. The actions of the UK government since suggest a state of concern or even panic about whether this will be enough. In February the UK unsuccessfully requested a one-year extension to measures on medicines, which the EU rebuffed. This month it also announced wider plans to delay border checks between Great Britain and Northern Ireland, with the EU responding by planning legal action under the Withdrawal Agreement. As these periods end, there is the prospect of serious supply risks interacting with a hostile political relationship.
People too cross borders to support the health of people on the island of Ireland – though as we warned, the exact numbers of workers of individual nationalities crossing the Irish border to provide health services is poorly monitored. The Common Travel Area between the UK and the Republic of Ireland enables cross-border working for citizens of the two countries, and the UK has committed to look at recognising qualifications into the future. However, it does not cover the unknown number of workers who might commute across the border, but are citizens of neither country.
These unique tensions will not necessarily be felt in only one of the UK’s four countries. It is the UK’s unilateral actions on Northern Ireland, as well as the bad blood over vaccines, that have led the European Parliament to delay ratifying last year’s agreement with its vital provisions for medicines and science in Great Britain.
An international health service
These issues may or will be felt imminently during what will be a very difficult year for the national health services in England, Scotland, Wales and Northern Ireland. They will be followed by other changes as the UK reshapes its international relationships – from new reciprocal health care agreements to further initiatives to share medicines regulation with global partners.
So how ready is the health sector to make its voice heard? Too often before Brexit, international policies affecting health were handed off to the EU and the departments that dealt with them, as we saw in decisions on working time and in EU-US trade negotiations. Now, with the DHSC buckling under the strain of Covid-19, other departments having very different trade priorities and no EU to serve as a buffer, we forget these issues at our peril.
Dayan M and McCarey M (2021) “Forget Brexit at your peril: how it will affect the NHS in 2021”, Nuffield Trust comment.