National Health Service (Travelling Expenses and Remission of Charges) Amendment (No. 3) Regulations 2001

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The Chairman: Does the hon. Member for Thurrock (Andrew Mackinlay) wish to speak?

Andrew Mackinlay (Thurrock): No, I am quite content, Mr. Winterton.

4.46 pm

The Minister of State, Department of Health (Mr. John Hutton): Given your specialist interest in health matters, Mr. Winterton, I am pleased that you are chairing the Committee. I am particularly pleased that my hon. Friend the Member for Thurrock is content with the Government's stance on this occasion. We are delighted to have his support. [Interruption.] I did not want to spoil the moment.

Having heard the speeches by the spokesmen for the Opposition parties, I think that Government Members will share my confusion about their position and whether they support the changes, which are necessary to comply with the terms of a European Court ruling. It was not clear to me whether the hon. Member for East Worthing and Shoreham (Tim Loughton), who speaks for the official Opposition, thought that the changes were good, necessary or even unavoidable. His wider analysis of the background circumstances that gave rise to the regulations was fundamentally flawed.

My hon. Friends will have got the impression that when the Conservatives were in government, no one waited for treatment in the NHS--that, in May 1997, people suddenly had to wait for treatment and as a result we have had to send patients abroad for their

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operations. What a complete load of old cobblers that remark was. [Interruption.] The hon. Gentleman did not make that remark, but it was very much his analysis. We probably do not need to spend much time on that argument, because the hon. Gentleman's assessment is wrong. He conveniently overlooked the fact that, since 1997, there has been a decrease not only in the waiting list, but in the average length of time that patients wait in the NHS. He might have chosen better terrain for his arguments.

The hon. Gentleman said that he welcomed the opportunity to scrutinise the regulations. However, the Liberal Democrats, not the official Opposition, prayed against the regulations, so quite when he thought he would have the opportunity to scrutinise them, I do not know. Perhaps he will let us know.

The hon. Gentleman and the hon. Member for Oxford, West and Abingdon asked several specific questions, which I shall deal with as I go through the meat of my remarks. The hon. Member for East Worthing and Shoreham was concerned about the timetable of the debate. As he knows from the regulations, they were made on 19 December. The process by which we come to debate the regulations in Committee is mysterious, but it has nothing to do with the Government business managers; the combination of the hon. Member for Oxford, West and Abingdon praying against the regulations and an agreement between the usual channels facilitated an opportune moment to discuss the proposals in Committee.

The hon. Member for East Worthing and Shoreham implied that we fixed the debate so that it could take place two or three weeks after the regulations came into effect, but that is not true. It was a function of the way in which parliamentary business is arranged in the House--a matter on which I have no say.

Dr. Harris: Far be it from me to make the point for him, but I think that the hon. Member for East Worthing and Shoreham was saying that there was a significant period between the European Court judgment and the regulations being tabled. It was the Government's wish to introduce the regulations on or before 18 January, when the media-fest—I apologise, I mean the first pilot patients, went to France for their treatment.

Mr. Hutton: The regulations were brought forward in a timely fashion—

The Chairman: Order. It is my understanding that such regulations need to be brought before a Committee within 40 parliamentary working days. That is why the regulations are being debated this afternoon. I hope that that explains the position and helps hon. Members on both sides of the Committee.

Mr. Hutton: All hon. Members will be grateful to you for shining light on the matter, Mr. Winterton. Now we all know why we are here--a question we might have asked ourselves earlier.

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The hon. Member for Oxford, West and Abingdon asked me how decisions on medical grounds are taken, and I shall reply in a moment. He also asked about the three-month period referred to in the regulations; it is the maximum time in which a claim can be made for reimbursement. I should be depressed if it took an average of three months to make a payment to a patient, but I am sure that that is not the case. Patients can facilitate that type of assistance from the NHS trust that commissioned the care ahead of their travel abroad. Most people regard that as the most sensible way to arrange things; that was certainly what happened in the case of patients in the three test-bed schemes that have been making the piloting arrangements. People have not had to wait three months for payment and I would share the hon. Gentleman's concern if that were the norm.

Tim Loughton: Will the Minister confirm that health authorities are under no obligation to pay that money upfront? Unscrupulous health authorities could refuse to do so, knowing that some patients could not afford to go to the continent for treatment.

Mr. Hutton: We need a sense of perspective on the matter. The NHS is a public service run by committed public servants. The scenario that the hon. Gentleman presents is discreditable—

Tim Loughton: That does not mean that it is not right.

Mr. Hutton: No, the hon. Gentleman is wrong. It is a mistake to suggest that national health service organisations will misuse the scheme in that way.

Mr. Bill Wiggin (Leominster): The way that the Minister describes the national health service does not lead one to imagine that we are in this Committee to discuss sending people abroad. Will he focus more on why we are here rather than trying to explain what the NHS is or is not?

Mr. Hutton: Where was I? I was trying to respond to the points that hon. Members have made. The hon. Member for East Worthing and Shoreham asked me in an intervention about the arrangements for the repayment and reimbursement of expenses, and I was trying to deal with that matter. The hon. Member for Leominster (Mr. Wiggin) should hold his horses for a moment.

I have discovered since I have been doing this job that whenever Labour Members try to point out some realities about the national health service, Conservative Members do not like it. That is an inevitable consequence of the sustained period of opposition ahead of Conservative Members. They have lost touch not only with their record of running the national health service, but with many realities. I shall explain the position, which I hope will reassure hon. Members about the regulations and, although I have little hope of this, about the state of the NHS.

The National Health Service Act 1977 has been interpreted consistently as preventing health authorities and trusts from commissioning treatment from service providers in foreign countries. In July last

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year, that interpretation, which has been shared by both Labour and Conservative Administrations, was fundamentally challenged by two decisions of the European Court of Justice. Both cases concerned citizens of one member state of the European Union—not the United Kingdom—crossing into a neighbouring member state for treatment and applying for reimbursement from their home health insurance schemes.

The case of Vanbraekel concerned a Belgian woman who obtained orthopaedic treatment in France without first securing the authorisation of her health insurer. Reimbursement costs were refused. In allowing her appeal, the Belgian courts had referred it specifically to the European Court of Justice on the technical point of whether reimbursement should be at the Belgian or French rate. The other decision involved two linked cases—Geraets-Smits and Peerbooms. The Geraets-Smits case concerned a refusal by the Netherlands authorities to reimburse the costs of treating a patient with Parkinson's disease at a specialist clinic in Germany on the ground that there was no added value over treatment available in the Netherlands and that, in any case, the German treatment was not available under Dutch legislation. The Peerbooms case concerned refusal to reimburse costs of specialist neurological treatment that was provided in Austria. The grounds were that experimental care was involved that was not part of the Dutch health care package and, notwithstanding that, appropriate care was available in the Netherlands.

Those cases involved different health systems from our own, but the key point for the United Kingdom was that the European Court of Justice ruled that, for the purposes of the treaty of Rome, some hospital services may come under the definition of services and therefore fall within the European Union single market regulations if they are provided for remuneration.

Sandra Gidley (Romsey): We are getting exercised about this so-called pilot scheme with certain health authorities sending patients abroad. On a point of clarification, are you now saying that any member of the public in any part of the country can apply to their local health authority for treatment abroad if they do not think that they are receiving it in the United Kingdom?

The Chairman: Before the Minister replies, I should tell the hon. Member for Romsey that I am not saying anything. The Minister may be saying something.

Mr. Hutton: That is the legal position and has been since the ruling of the European Court of Justice in July. We are using the pilot schemes not to restrict choice, but to find an effective vehicle through which choice can be exercised in the future and which will deal with the issues of value for money and efficiency that Opposition Members, including the hon. Member for Oxford, West and Abingdon, have raised.

Once services are deemed to fall within the ambit of single market rules, member states cannot without good cause prevent health authorities and trusts from commissioning those services in other member states.

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Those court decisions provide the backbone against which the regulations have been introduced and should be judged.

In those circumstances, the Government were under a clear obligation to ensure that the framework of NHS legislation in this country fully reflected the impact of the two decisions. It would have been wrong not to take the opportunity offered by the rulings to widen the opportunities for access to high-quality health care, which will be provided free under the NHS at the point of delivery. I am surprised that the Liberal Democrats, of all people, do not want the Government to give effect to the important rulings from the highest court in the European Union. There is no sign of their pro-European leanings on this occasion.

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Prepared 5 February 2002