National Health Service Act 2006

Provision of services otherwise than in England E+W

6 Performance of functions outside England E+W

[F1 (1) Where the Secretary of State has a duty or power to provide anything under section 2A or 2B or Schedule 1, that thing may be provided outside England.]

[F2 (1A) Where a clinical commissioning group or the Board has a duty or power to arrange for the provision of anything under section 3, 3A, 3B or 4 or Schedule 1, it may arrange for that thing to be provided outside England.]

(2) [F3 The functions of the Secretary of State, the Board and clinical commissioning groups] may be performed outside England and Wales, in so far as they relate to—

(a) holidays for patients,

(b) the transfer of patients to or from Scotland, Northern Ireland, the Isle of Man or the Channel Islands, or

(c) the return of patients who have received treatment in England and Wales, to countries or territories outside the British Islands (including for this purpose the Republic of Ireland).

Textual Amendments

F1 S. 6(1) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 2(2); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F2 S. 6(1A) inserted (1.2.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 2(3); S.I. 2012/2657, art. 2(4)

F3 Words in s. 6(2) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 2(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

[F4 6A. Reimbursement of cost of services provided in another EEA state E+W

(1) The Secretary of State must, on an application made by any person, reimburse to that person the amount of any qualifying EEA expenditure incurred by that person on or after 23 August 2010, but this is subject to subsections (5) and (6), to any limit applicable under subsection (8) and to any deduction applicable under subsection (9).

[F5 (1A) But the duty in subsection (1) does not apply where section 6BA applies.]

(2) For the purpose of this section, “qualifying EEA expenditure” is expenditure incurred on the provision by an authorised provider, in an EEA state other than the United Kingdom, to a person ordinarily resident in England (“the patient”) of a service as respects which condition A or condition B is met.

(3) Condition A is that the service—

(a) was necessary to treat or diagnose a medical condition of the patient,

(b) is the same as or equivalent to a service that the Secretary of State [F6 , the Board] or a responsible authority would make or have made available to the patient under this Act in the circumstances of the patient’s case, and

(c) is not a special service.

(4) Condition B is that before the service was provided the Secretary of State had given authorisation under section 6B for the provision of the service to the patient.

(5) The duty in subsection (1) does not apply where the applicant incurred the qualifying expenditure in connection with an arrangement which was entered into by the applicant in the course of business and under which the applicant has gained or might be expected to gain any financial benefit.

(6) This section does not apply in circumstances where Article 20 or 27(3) of Regulation (EC) No. 883/2004 apply.

(7) Subsections (8) and (9) apply where the service is the same as or equivalent to a service that the Secretary of State[F7 , the Board ] or a responsible authority would have made available to the patient under this Act in the circumstances of the patient’s case.

(8) The Secretary of State may limit the amount of any reimbursement under this section—

(a) in relation to a service other than a dental service, to the cost that the Secretary of State [F8 , the Board] or a responsible authority would have incurred if the same or an equivalent service had been made available by [F9 any of them], and

(b) in relation to a dental service, to the average cost that the Secretary of State [F8 , the Board] or a responsible authority would have incurred if the same or an equivalent service had been made available by [F9 any of them].

(9) The Secretary of State may deduct from any reimbursement under this section the amount of any NHS charge which would have been payable for the same service or an equivalent service if the service had been made available by the Secretary of State [F10 , the Board] or a responsible authority; and in determining for this purpose the amount of any NHS charge regard shall be had to any entitlement the patient would have had—

(a) to any payment or contribution by virtue of regulations made under section 180(1) or (3), or

(b) to any remission or repayment by virtue of regulations made under section 182.

(10) The Secretary of State may determine—

(a) the form in which an application under this section must be made, and

(b) the information to be provided in support of the application.

(11) In this section and section 6B—

• “authorised provider”, in relation to any service provided in an EEA state other than the United Kingdom, means a person who is lawfully providing that service;

• “NHS charge” means a charge payable under regulations made under section 172(1), 176(1) or 179(1);

• “responsible authority” means, in relation to a patient, a F11 ... F12 ... [F13 a local authority or clinical commissioning group] responsible under or by virtue of this Act for providing or [F14 arranging for] the provision of services for the benefit of the patient;

• “special service” means—

  (a)

  a service that involves a stay in hospital accommodation for at least one night,

  (b)

  medical treatment that involves general anaesthesia, epidural anaesthesia or intravenously administered sedation,

  (c)

  dental treatment that involves general anaesthesia or intravenously administered sedation, or

  (d)

  a service whose provision involves the use of specialised or cost-intensive medical infrastructure or medical equipment;

• “service” includes any goods, including drugs, medicines and appliances, which are used or supplied in connection with the provision of a service, but does not include accommodation other than hospital accommodation.

Textual Amendments

F4 Ss. 6A, 6B inserted (1.6.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) Regulations 2010 (S.I. 2010/915), regs. 1(1), 2

F5 S. 6A(1A) inserted (25.10.2013) by The National Health Service (Cross-Border Healthcare) Regulations 2013 (S.I. 2013/2269), regs. 1(1), 7(1)

F6 Words in s. 6A(3)(b) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(2); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F7 Words in s. 6A(7) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(3); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F8 Words in s. 6A(8)(a)(b) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(4)(a); S.I. 2013/160, art. 2(2) (with arts. 7-9); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F9 Words in s. 6A(8)(a)(b) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(4)(b); S.I. 2013/160, art. 2(2) (with arts. 7-9); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F10 Words in s. 6A(9) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(5); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F11 Words in s. 6A(11) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(6)(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F12 Words in s. 6A(11) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(6)(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F13 Words in s. 6A(11) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(6)(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F14 Words in s. 6A(11) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 3(6)(d); S.I. 2013/160, art. 2(2) (with arts. 7-9)

6B. Prior authorisation for the purposes of section 6A E+W

(1) A person may apply to the Secretary of State under this section for prior authorisation for the purposes of section 6A in relation to the provision of a service (“the requested service”) to a person ordinarily resident in England (“the patient”).

(2) The requested service must be—

(a) a special service, or

(b) a service that is neither the same as nor equivalent to a service that the Secretary of State [F15 , the Board] or a responsible authority would make available to the patient under this Act in the circumstances of the patient’s case.

(3) The Secretary of State may determine—

(a) the form in which an application under this section must be made, and

(b) the information to be provided in support of the application.

(4) The Secretary of State—

(a) must authorise the provision of the requested service if it is a special service and the conditions in subsection (5) are met, and

(b) may authorise the provision of the requested service in any other case where the requested service is necessary to treat or diagnose a medical condition of the patient.

(5) The conditions referred to in subsection (4)(a) are—

(a) that the requested service is necessary to treat or diagnose a medical condition of the patient,

(b) that the requested service is the same as or equivalent to a service that the Secretary of State [F16 , the Board] or a responsible authority would make available to the patient in the circumstances of the patient’s case, and

(c) that the Secretary or State [F16 , the Board] or a responsible authority cannot provide to the patient a service that is the same as or equivalent to the requested service within a period of time that is acceptable on the basis of medical evidence as to the patient’s clinical needs, taking into account the patient’s state of health at the time the decision under this section is made and the probable course of the medical condition to which the service relates.

(6) The matters to which the Secretary of State is to have regard in determining for the purpose of subsection (5)(c) whether the length of any delay is acceptable include—

(a) the patient’s medical history,

(b) the extent of any pain, disability, discomfort or other suffering that is attributable to the medical condition to which the service is to relate,

(c) whether any such pain, disability, discomfort or suffering makes it impossible or extremely difficult for the patient to carry out ordinary daily tasks, and

(d) the extent to which the provision of the service would be likely to alleviate, or enable the alleviation of, the pain, disability, discomfort or suffering.

(7) Any authorisation under this section must be in writing.]

Textual Amendments

F4 Ss. 6A, 6B inserted (1.6.2010) by The National Health Service (Reimbursement of the Cost of EEA Treatment) Regulations 2010 (S.I. 2010/915), regs. 1(1), 2

F15 Words in s. 6B(2)(b) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 4(2); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F16 Words in s. 6B(5)(b)(c) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 4 para. 4(3); S.I. 2013/160, art. 2(2) (with arts. 7-9)

[F17 6BA Reimbursement of cost of services provided in another EEA state where expenditure incurred on or after 25 October 2013. E+W

(1) This section applies where expenditure is incurred by a person on or after 25October 2013 (but see subsections (9) and (14)).

(2) The Secretary of State must, on an application made by the person, reimburse to that person the amount of the qualifying EEA expenditure incurred by that person, but this is subject to subsections (8) and (9), to any limit applicable under subsection (11) and to any deduction applicable under subsection (12).

(3) For the purpose of this section, “qualifying EEA expenditure” is expenditure incurred on the provision by an authorised provider, in an EEA state other than the United Kingdom, to a person ordinarily resident in England (“the patient”) of a service as respects which condition A or condition B is met.

(4) Condition A is that the service—

(a) was necessary to treat or diagnose a medical condition of the patient, and

(b) is the same as or equivalent to a service that the Secretary of State, the Board or a responsible authority would make or have made available to the patient under this Act in the circumstances of the patient's case.

(5) But in the case of a service which, although meeting the requirements in paragraphs (a) and (b) of subsection (4), falls within subsection (6), condition A is only met if, before the service was provided, the Secretary of State had given authorisation under section 6BB for the provision of the service to the patient.

(6) A service falls within this subsection if—

(a) it is subject to planning requirements relating to the objective of ensuring sufficient and permanent access to a balanced range of high quality treatment or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources, and—

(i) it involves a stay in hospital accommodation for at least one night, or

(ii) it requires the use of highly specialised and cost-intensive medical infrastructure or medical equipment;

(b) it involves treatments presenting a particular risk for the patient or the population; or

(c) it is provided by a healthcare provider that, on a case-by-case basis, could give rise to serious and specific concerns relating to the quality or safety of the care, with the exception of a service which is subject to European Union legislation ensuring a minimum level of safety and quality throughout the European Union.

(7) Condition B is that, before the service was provided, the Secretary of State had given authorisation under section 6BB(4)(b) for the provision of the service to the patient.

(8) The duty in subsection (2) does not apply where the applicant incurred the qualifying EEA expenditure in connection with an arrangement which was entered into by the applicant in the course of business and under which the applicant has gained or might be expected to gain any financial benefit.

(9) This section does not apply in circumstances where Article 20 or 27(3) of Regulation (EC) No 883/2004 applies.

(10) Subsections (11) and (12) apply where the service is the same as or equivalent to a service that the Secretary of State, the Board or a responsible authority would have made available to the patient under this Act in the circumstances of the patient's case.

(11) The Secretary of State may limit the amount of any reimbursement under this section to the cost that the Secretary of State, the Board or a responsible authority would have incurred if the same or an equivalent service had been made available by any of them.

(12) The Secretary of State may deduct from any reimbursement under this section the amount of any NHS charge which would have been payable for the same service or an equivalent service if the service had been made available by the Secretary of State, the Board or a responsible authority; and in determining for this purpose the amount of any NHS charge regard shall be had to any entitlement the patient would have had—

(a) to any payment or contribution by virtue of regulations made under section 180(1) or (3), or

(b) to any remission or repayment by virtue of regulations made under section 182.

(13) The Secretary of State may determine—

(a) the form in which an application under this section must be made, and

(b) the information to be provided in support of the application.

(14) This section does not apply where expenditure is incurred in Iceland, Liechtenstein or Norway before Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare applies to those states in accordance with the EEA Agreement.

(15) In this section and section 6BB, “authorised provider”, “NHS charge”, “responsible authority” and “service” each have the meaning given in section 6A.

Textual Amendments

F17 Ss. 6BA, 6BB inserted (25.10.2013) by The National Health Service (Cross-Border Healthcare) Regulations 2013 (S.I. 2013/2269), regs. 1(1), 7(2)

6BB Prior authorisation for the purposes of section 6BA E+W

(1) A person may apply to the Secretary of State under this section for prior authorisation for the purposes of section 6BA in relation to the provision of a service (“the requested service”) to a person ordinarily resident in England (“the patient”).

(2) The requested service must be—

(a) a service which falls within section 6BA(6) and meets the requirements in paragraphs (a) and (b) of section 6BA(4), or

(b) a service that is neither the same as nor equivalent to a service that the Secretary of State, the Board or a responsible authority would make available to the patient under this Act in the circumstances of the patient's case.

(3) The Secretary of State may determine—

(a) the form in which an application under this section must be made, and

(b) the information to be provided in support of the application.

(4) The Secretary of State—

(a) must authorise the provision of the requested service if it is a service mentioned in subsection (2)(a) (but see subsection (5)), and

(b) may authorise the provision of the requested service in any case where—

(i) the requested service is necessary to treat or diagnose a medical condition of the patient, and

(ii) the duty in paragraph (a) does not apply.

(5) The duty in subsection (4)(a) does not apply if at least one of the following conditions is met—

(a) the patient will, according to a clinical evaluation, be exposed with reasonable certainty to a patient-safety risk that cannot be regarded as acceptable, taking into account the potential benefit for the patient of the requested service;

(b) the general public will be exposed with reasonable certainty to a substantial safety hazard as a result of the requested service;

(c) the requested service is to be provided by a healthcare provider that raises serious and specific concerns relating to the respect of standards and guidelines on quality of care and patient safety, including provisions on supervision, whether these standards and guidelines are laid down by laws or regulations or through accreditation systems established by the state in which the service will be provided;

(d) the Secretary of State, the Board or a responsible authority can provide to the patient a service that is the same as or equivalent to the requested service within a period of time that is medically justifiable, taking into account the patient's state of health at the time the decision under this section is made and the probable course of the medical condition to which the service relates.

(6) The matters to which the Secretary of State is to have regard in determining for the purpose of subsection (5)(d) whether the length of any delay is medically justifiable include—

(a) the patient's medical history,

(b) the extent of any pain, disability, discomfort or other suffering that is attributable to the medical condition to which the service is to relate,

(c) whether any such pain, disability, discomfort or suffering makes it impossible or extremely difficult for the patient to carry out ordinary daily tasks, and

(d) the extent to which the provision of the service would be likely to alleviate, or enable the alleviation of, the pain, disability, discomfort or suffering.

(7) Any authorisation under this section must be in writing.]

Textual Amendments

F17 Ss. 6BA, 6BB inserted (25.10.2013) by The National Health Service (Cross-Border Healthcare) Regulations 2013 (S.I. 2013/2269), regs. 1(1), 7(2)