12. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the organisation got something wrong. We do this by comparing what should have happened with what did happen. We have done this and we have not found any signs that something went wrong.
13. Mrs R complains Mr R was not told he would be charged for treatment and despite what the Trust says in its complaint response, there is no information displayed in the ED about charges and staff did not give any information about possible charges.
14. Mrs R says because Mr R was not told, he could not decide whether to go ahead with the treatment on 10 October 2022. Mrs R adds the Trust confirmed her son was not told about charges because of an issue with a quick reporting method being damaged during an IT system update at the time.
15. In its complaint response the Trust says there are posters at the ED reception. It says administrative staff always ask if a patient has lived outside the UK in the last 12 months when booking them in. If a patient books themselves in on the iPad, they are asked if they have lived outside the UK. The Trust says it is the responsibility of an individual to check how moving overseas could affect their eligibility for free NHS healthcare.
16. The charging regulations put a legal obligation on providers of relevant services to check if a person is an overseas visitor and charges apply, or if they are exempt from charges. When charges apply, a relevant body must make and recover charges from the person liable to pay for the services provided to the overseas visitor.
17. The charging regulations say that eligibility for NHS services without charge is based on the concept of ordinary residence. The regulations state that a person will be ‘ordinarily resident’ in the UK when that residence is lawful, adopted voluntarily, and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration.
18. Section 1.1 of the regulations makes clear that all ED services provided at an NHS hospital are free of charge for all patients. For this reason, Mr R was not charged for any treatment received at the ED on 9 October 2022. This section also makes clear that any follow up services provided to an inpatient or at a follow up outpatient appointment must be charged for. Mr R had a follow-up appointment on 10 October and this was chargeable treatment.
19. Mr R was asked to fill in an access form for NHS services on 4 November 2022. One of the criteria of the charging regulations to determine ordinary residence i is whether a person is settled in the UK for the time being. One of the examples given in the charging regulations says a person working and settled overseas, who only spends a few weeks of the year in the UK visiting family are not likely to be properly settled in the UK, in which case they would not be ordinarily resident.
20. From the information we have seen, it is clear Mr R would not be considered as ordinary resident. On the form he completed he ticked to say he does not usually live in the UK and listed an overseas address for himself and his employer. He said he lives in another country, spent six months or more outside of the UK in the last 12 months and he described his stay in the UK as holiday and to visit friends or family.
21. The regulations also refer to the Department of Health & Social Care ordinary residence tool that can help in deciding whether a patient is entitled to free NHS care. It is clear that Mr R would not be considered as ordinary resident of the UK because he had not been in the UK for six months, he did not intend to stay for six months and he listed an overseas address for his home and employer. He also made clear that he lives in another country. There is no health agreement between the UK and the country where Mr R lived.. We have not seen that the Trust did anything wrong by sending an invoice for treatment given on 10 October 2022.
22. Section 11.38 of the charging regulations makes clear that a patient should be told as soon as possible that there may be a charge for treatment. They also say, ‘the fact that a patient was not informed that charges apply to them at the time does not alter the fact that, under the Charging Regulations, they are still liable for that charge.’
23. The Trust policy on overseas patients explains that staff are expected to have an understanding of the policy but they are not expected to check whether a person is entitled to NHS treatment. This would be done by the overseas visitors team. The policy explains that chargeable treatment which is considered by clinicians to be immediately necessary must never be withheld from an overseas visitor. This does not mean that treatment will be free but that charges can be issued after treatment is provided if not paid for before.
24. Mr R accessed treatment at the ED. Mr R was referred as cancer was suspected. He was seen the next day when the infected cyst was removed and cancer was ruled out. Given the small amount of time between Mr R’s visit to the ED and his appointment to remove the cyst, there was very little opportunity for the overseas team to contact Mr R to make him aware of potential charges.
25. The Trust policy on overseas patients says the Trust is expected to make and collect an initial estimate of the whole cost of treatment before the care begins, except where the care is considered immediately necessary or urgent. As Mr R was given a next day appointment it is reasonable to say the clinician he saw in the ED on 9 October 2022 thought his treatment was urgent and immediately necessary.
26. There is a disagreement about whether there were posters in the ED and whether staff told Mr R about charges. When we have two different accounts, we try to find independent evidence to help us reach a decision about what happened. We note the charging regulations state the ‘fact that a person was not informed that charges would apply does not alter the fact that, under the Charging Regulations, they are still liable for that charge.’ With this in mind, even if posters were not visible in the ED and staff did not tell Mr R, it would not change the fact that charges could be applied.
27. Mrs R also complains the Trust said an IT upgrade issue meant Mr R was not told about charges sooner. Given the very short period of time between Mr R going to the ED on 9 October 2022 and returning to hospital the next day, we think it is unlikely the Trust could have told Mr R sooner.
28. This is especially the case when the charging regulations and the Trust policy say all staff must not give advice on a person’s eligibility for free treatment. Both guidelines say information should be passed to the overseas team to investigate.
29. Mrs R also complains Mr R was not able to decide whether to have treatment on 10 October 2022, as he did not know he could be charged. Mr R said in an email on 1 June 2023 that he would have declined the surgery if he knew he would have to pay.
30. Payment is required in full and in advance where the need for treatment is seen as non-urgent. Mr R’s treatment was seen as urgent. Guidance from the Office for Health Improvement and Disparities says treatment seen by a clinician to be immediately necessary or urgent, will be provided even if the patient has not paid in advance. The patient will be asked for payment afterwards.
31. The Trust policy says it is the responsibility of the patient to prove their entitlement to access NHS care. The regulations say that failure to tell a patient as soon as possible that they may be liable to pay could lead to accusations of maladministration (fault). But, ‘the fact that a patient was not informed that charges apply to them at the time does not alter the fact that, under the Charging Regulations, they are still liable for that charge.’
32. It would have been better if Mr R had been told before his appointment on 10 October 2022. But, the charging regulations clearly say that not being told about charges does not stop an individual being liable to pay. Mr R was living overseas and could have investigated whether he would be covered for free treatment in the UK. We have not seen any failings in the Trust’s decision to charge Mr R for treatment.
33. It is our role to be impartial and fair. We hope Mrs R understands the reason for our decision.