The National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989

Made: 5th March 1989

Laid before Parliament: 15th March 1989

Coming into force: 5th April 1989

The Secretary of State, in exercise of the powers conferred on him by sections 98, 105 and 108(1) of the National Health Service (Scotland) Act 1978[^f00001] and of all other powers enabling him in that behalf, hereby makes the following Regulations:

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989 and shall come into force on 5th April 1989.

• (2) In these Regulations, unless the context otherwise requires—

• “the Act” means the National Health Service (Scotland) Act 1978;

• “authorised child” means a child who has either been granted leave to enter the United Kingdom with his parent for the purpose of the parent obtaining a course of treatment in respect of which no charges are payable under regulation 6A or is the child of an authorised companion;

• “authorised companion” means a person who has been granted leave to enter the United Kingdom to accompany a person who is obtaining a course of treatment in respect of which no charges are payable under regulation 6A;

• “child” means a person who is—under the age of sixteen; orunder the age of nineteen and treated for the purposes of the Child Benefit Act 1975[^f00002] or the Child Benefit (Northern Ireland) Order 1975[^f00003] as receiving full time education at an educational establishment recognised under that Act or that Order;

• “competent institution” has the meaning it had in Regulation (EC) No 883/2004 or (as the case may be) Regulation (EEC) No 1408/71 immediately before IP completion day;

• “Continental Shelf”, except in a reference to a designated area of the Continental Shelf, means the sea-bed and subsoil of the submarine area (other than in the Baltic or Mediterranean Seas, including the Adriatic and Aegean, or the Black Sea) adjacent to the coasts, lying north of the latitude of 25 degrees north and between the longitude of 30 degrees west and 35 degrees east, of the territory (including islands) of—any country situated on the Continent of Europe, orthe Republic of Ireland,where the submarine area is outside the seaward limits of the territorial limits of those countries and the Republic of Ireland and is an area with respect to which the exercise by any of them of sovereign rights in accordance with international law is recognised by Her Majesty’s Government in the United Kingdom;

• ...

• “designated area of the Continental Shelf” means any area which is for the time being designated by an Order in Council under the Continental Shelf Act 1964[^f00004] as an area within which the rights of the United Kingdom with respect to the sea-bed and subsoil and their natural resources may be exercised;

• “EEA State” means a member State, Norway, Iceland or Lichtenstein;

• “eye examinations and sight tests” means eye examinations and sight tests within the meaning of section 13(1) of the Smoking, Health and Social Care (Scotland) Act 2005;

• ...

• “Health Board” means a Health Board constituted under section 2 of the Act;

• “member of the family”, in relation to a national of an EEA State, a frontier worker, a stateless person or a refugee, has the meaning it had for the purposes of Regulation (EC) No 883/2004 or (as the case may be) Regulation (EEC) 1408/71 immediately before IP completion day;

• ...

• ...

• “ophthalmic medical practitioner” means a medical practitioner having the qualifications prescribed under regulations made under section 26(1) of the Act;

• “oral health assessments and dental examinations” means oral health assessments and dental examinations within the meaning of section 12(1) of the Smoking Health and Social Care (Scotland) Act 2005;

• “overseas visitor” means a person not ordinarily resident in the United Kingdom;

• “reciprocal agreement” means arrangements mutually agreed between the Government of the United Kingdom and the Government of a country or territory outside the United Kingdom for providing health care;

• “refugee” means a person who is a refugee within the meaning of Article 1 of the Convention relating to the Status of Refugees 1951[^f00006] and Article 1 of the Protocol relating to the Status of Refugees 1967[^f00007] and any other person taking refuge in the territory of an EEA State with leave of the Government of that State;

• “services forming part of the health service” means accommodation, services and other facilities provided under section 36(1) of the Act (accommodation and services) or oral health assessments and dental examinations, or eye examinations and sight tests and includes accommodation, services and other facilities provided by an NHS trust but does not include any accommodation, service or facility made available or provided under—section 57 of the Act (accommodation and services for private patients);section 7(2) of the Health and Medicines Act 1988 (powers to make more income available for the health service); orparagraph 14 of Schedule 7A to the Act (accommodation and services for private patients of NHS trusts);

• “ship or vessel” includes hovercraft;

• “stateless person” has the meaning assigned to it in Article 1 of the Convention relating to the Status of Stateless Persons 1954 [^f00009];

• “treatment” includes medical, dental and nursing services required for the care of women who are pregnant or in childbirth or for the prevention or diagnosis of illness;

• “treatment the need for which arose during the visit” means diagnosis of symptoms or signs occurring for the first time after the visitor’s arrival in the United Kingdom and any other treatment which, in the opinion of a medical or dental practitioner employed by, or under contract with, a Health Board or, as the case may be, an NHS trust, is required promptly for a condition which arose after the visitor’s arrival in the United Kingdom, or became, or but for treatment would be likely to become, acutely exacerbated after such arrival.

• (3) In calculating for the purpose of any provision of these Regulations a period of residence in the United Kingdom, any interruption by reason of temporary absence of not more than three months shall be disregarded.

• (4) Unless the context otherwise requires, in these Regulations any reference to a numbered regulation or Schedule is a reference to the regulation in or, as the case may be, the Schedule to these Regulations which bears that number, and any reference in a regulation to a numbered paragraph is a reference to the paragraph bearing that number in that regulation.

Making and recovery of charges

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• (1) Where a Health Board or, as the case may be, an NHS trust provides an overseas visitor with services forming part of the health service, that Health Board or NHS trust, having determined, by means of such enquiries as it is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under regulation 7 charges for the provision of those services.

• (2) A Health Board or, as the case may be, an NHS trust which makes and recovers a charge in accordance with paragraph (1) shall give or send to the person making the payment a receipt for the amount paid.

• (3) Where an overseas visitor receives an oral health assessment, dental examination, eye examination or sight test, the dental practitioner, ophthalmic medical practitioner or ophthalmic optician (as the case may be) providing those services having determined, by means of such enquiries as that person is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under regulation 7 charges for the provision of those services as such charges are determined by the Health Board.

• (4) A dental practitioner, ophthalmic medical practitioner or ophthalmic optician who makes and recovers a charge in accordance with paragraph 3 shall give or send to the person making the payment a receipt for the amount paid.

Services exempted from charges

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No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor—

• (a) at a hospital accident and emergency department or casualty department unless and until he has been accepted as an in-patient at the hospital for treatment of the condition in respect of which such services are provided; or

• (b) otherwise than at, or by staff employed to work at, or under the direction of, a hospital except in the case of an oral health assessment, dental examination, eye examination or sight test provided as mentioned in regulation 2(3); or

• (bb) consisting of the provision of family planning services; or

• (c) for treatment in respect of a disease listed in Schedule 1; or

• (d) at a special clinic for the treatment of sexually transmitted diseases or in respect of a sexually transmitted disease by virtue of a reference from such a clinic...;

• (e) who is detained in a hospital under the Mental Health (Care and Treatment) (Scotland) Act 2003 or any other enactment authorising orders for admission to, and detention in, hospital by reason of mental disorder; or

• (f) with a view to the improvement of his mental condition where submission to the treatment is, under section 227R of the Criminal Procedure (Scotland) Act 1995 (c.46), included by the Court as a requirement in a community payback order.

Overseas visitors exempt from charges

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• (1) No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor, being a person or the spouse , civil partner or child of a person—

• (a) who is shown to the satisfaction of the Health Board or, as the case may be, the NHS trust by which those services are provided to be present in the United Kingdom or in a designated area of the Continental Shelf or, if his employer has his principal place of business in the United Kingdom, in or over any area of the Continental Shelf, or on a stationary structure within the territorial waters of the United Kingdom, for the purpose of—

• (i) engaging in employment as an employed or self-employed person; or

• (ii) working as a volunteer with a voluntary organisation that is providing a service similar to a relevant service as defined in sections 64(3)(b) and 65(3)(c) of the Health Services and Public Health Act 1968[^f00013], in section 16B of the Act[^f00014] or service to which article 71 of the Health and Personal Social Services (Northern Ireland) Order 1972[^f00015] applies; or

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) taking up permanent residence in the United Kingdom; or

• (b) who has resided lawfully in the United Kingdom for a period of not less than one year immediately preceding the time when the services are provided, whether or not immediately prior to this residence qualification being met, charges under these Regulations may have been made in respect of services provided as part of the same course of treatment; or

• (c) who has been accepted as a refugee in the United Kingdom, or who has made a formal application for leave to stay as a refugee in the United Kingdom; or

• (ca) who is a stateless person or a refugee or a member of the family of a stateless person or a refugee resident in each case in the territory of an EEA State or Switzerland; or

• (d) who is employed on a ship or vessel registered in the United Kingdom; or

• (e) who is in receipt of any pension or other benefit under a Personal Injuries Scheme, Service Pensions Instrument or a 1914-1918 War Injuries Scheme as defined in regulation 2(1) of the Social Security (Overlapping Benefits) Regulations 1979[^f00016]; or

• (f) who is a diplomatic agent for the purposes of the Articles of the Vienna Convention on Diplomatic Relations set out in Schedule 1 to the Diplomatic Privileges Act 1964[^f00017]; or

• (g) who is a member of Her Majesty’s United Kingdom Forces; or

• (h) who is some other Crown servant employed in the right of Her Majesty’s Government of the United Kingdom, having been recruited in the United Kingdom; or

• (i) who is an employee, recruited in the United Kingdom, of the British Council or the Commonwealth War Graves Commission; or

• (j) who is working in employment that is financed in part by the Government of the United Kingdom in accordance with arrangements made with the Government of some other country or territory or a public body in such other country or territory; or

• (k) who has at any time had not less than ten years' continuous lawful residence in the United Kingdom and is engaged in employment as an employed or self-employed person outside the United Kingdom—

• (i) that has not lasted for a period of five years; or

• (ii) that has lasted for five or more years, if he takes or has a contractual right to take home leave in the United Kingdom at least once in every two years or if he has a right, under the contract by which he was engaged, to have the cost of his passage to the United Kingdom paid on completion of his engagement; or

• (l) who is employed in an EEA State and who is contributing as an employed or self-employed earner under the Social Security Act 1975[^f00018] or the Social Security (Northern Ireland) Act 1975[^f00019]; or

• (m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (n) whose detention in prison or in an institution provided by the Secretary of State under section 31(1) of the Prisons (Scotland) Act 1952[^f00020] is for the time being authorised by law; or who is detained under the provisions of the Immigration Act 1971[^f00021]; or

• (o) in whose case the services are provided in circumstances covered by a reciprocal agreement with a country or territory specified in Schedule 2 ; or

• (p) who–

• (i) is not a national of an EEA State which has entered into a reciprocal agreement which comes into effect on or after IP completion day; and

• (ii) is a national of a State which is a signatory to the European Social Charter; and

• (iii) is not entitled to be provided with such services under a reciprocal agreement specified in Schedule 2; and

• (iv) is without sufficient resources to pay the charge ; ...

• (q) who is pursuing a full time course of study; or

• (r) who the competent authorities of the United Kingdom within the meaning of the Council of Europe Convention on Action Against Trafficking in Human Beings (in this regulation “the Convention”),

• (i) consider that there are reasonable grounds to believe is a victim within the meaning of Article 4 of the Convention, and the recovery and reflection period in relation to him under Article 13 of the Convention has not yet expired; or

• (ii) have identified as a victim within the meaning of Article 4 of the Convention.

• (2) Where it is established that a person does not meet the residence qualification in paragraph (1)(b) and that person has already received services as part of a course of treatment on the basis that no charges would be made, no charges may be made for the remainder of that course of treatment.

Exemption from charges for treatment the need for which arose during the visit

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No charge for services forming part of the health service, provided only for the purpose of giving treatment the need for which arose during the visit, shall be made in respect of any overseas visitor who is—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) a person, or the spouse , civil partner or child of a person, who has at any time had not less than ten years' continuous lawful residence in the United Kingdom or not less than ten years' continuous service as a Crown servant employed in the right of Her Majesty’s Government of the United Kingdom and is in receipt of a pension or benefit under the Social Security Act 1975 or the Social Security (Northern Ireland) Act 1975 or a state pension under Part 1 of the Pensions Act 2014 or Part 1 of the Pensions Act (Northern Ireland) 2015; or

• (c) a person resident in a country or territory specified in schedule 2, other than Bermuda, Cayman Islands or Pitcairn, Henderson, Ducie and Oeno Islands; or

• (d) a person who is without sufficient resources to pay the charge and who is a national of a country which is a contracting party to the European Convention on Social and Medical Assistance 1954[^f00022]; or

• (e) a person, or the spouse , civil partner or child of a person, who has at any time had not less than ten years' continuous lawful residence in the United Kingdom and who is resident in an EEA State or in a country, other than Israel, or territory specified in Schedule 2 or

• (f) an authorised child or an authorised companion or

• (fa) in Scotland between 7th July and 7th August 2014 inclusive as part of the “Games Family” (in this regulation “Games Family” means the group of individuals who are taking part or are involved in the Commonwealth Games in Glasgow and who have been given a letter code for the purpose of receiving free treatment the need for which arose during the visit to Scotland).

• (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exemption from charges for treatment provided to a member of the forces of the North Atlantic Treaty Organisation

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No charge shall be made or recovered for the provision of services forming part of the health service required for the treatment of a person to whom Article IX(5) of the North Atlantic Treaty Organisation Status of Forces Agreement[^f00023] applies, where such treatment cannot readily be provided by the medical services of the armed forces of his own country or of the United Kingdom.

Liability for payment of charges

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