3 EC action on health services
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SEC(06) 1195/4
| Commission Communication: Consultation on Community action on health services
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| Legal base | — |
| Document originated | 26 September 2006
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| Deposited in Parliament | 16 October 2006
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| Department | Health |
| Basis of consideration | EM and Minister's letter of 27 October 2006
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Standing Committee
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Introduction
3.1 The aim of the Communication is to explain the principles
on which, in the Commission's view, Community action on health
should be based and to initiate consultations on nine questions.
The following provisions of the EC Treaty are relevant to the
Communication.
3.2 Article 14 EC provides for the progressive establishment
of an internal market comprising an area in which the free movement
of goods, persons, services and capital is ensured.
3.3 Article 18 EC provides that every citizen of
the European Union has the right to move and reside freely within
the territory of the Member States, subject to the limitations
and conditions laid down in the Treaty and measures to give effect
to the Treaty.
3.4 Article 42 EC requires the Council to adopt such
measures on social security as are necessary to provide freedom
of movement for workers.
3.5 Article 49 EC prohibits restrictions on the freedom
of people established in one Member State to provide services
in other Member States.
3.6 Article 152 of the Treaty provides that Community
action on public health should complement national policies and
be directed to improving public health and preventing illness.
The Community should encourage cooperation between Member States
and, if necessary, support their action. The Council is authorised
to contribute to the achievement of the objectives of the Article
by adopting incentive measures to protect and improve public health,
excluding any harmonisation of the laws of the Member States.
The Article contains an express proviso that Community action
must respect the responsibilities of the Member States for the
organisation and delivery of health services and medical care.
The need for Community action
3.7 In June the Council adopted a statement of common
values and principles in health systems and called for action
to ensure:
"clarity for European citizens about their
rights and entitlements when they move from one EU Member State
to another and enshrining these values and principles in a legal
framework in order to ensure legal certainty."
3.8 The Commission says that it believes that Community
action should be founded on two "pillars":
- legal certainty and, in particular,
certainty about the implications of rulings by the European Court
of Justice (ECJ) on the application to patients, health workers
and health services of the provisions of the EC Treaty on free
movement; and
- support for Member States by providing a clear
framework of Community law for those responsible for health systems
to operate and cooperate with each other.
3.9 The Commission says, however, that:
"Community action on health services does
not mean harmonising national health or social security systems.
The benefits that different health and social security systems
provide and their organisation remain the responsibility of the
Member States."[8]
3.10 The Commission notes that until 1998 it was
thought that the Regulations on the coordination of social security
schemes provided the only Community mechanism enabling patients
to receive medical treatment when abroad. The Commission continues:
"However, in 1998 the [ECJ] established
new principles through its rulings in two cases[9]
regarding direct application of the Treaty articles on free movement
to the reimbursement of health services provided to patients abroad
… In its rulings, the Court made clear that when health
services are provided for remuneration, they must be regarded
as services within the meaning of [the EC] Treaty and thus relevant
provisions on free movement of services apply."[10]
The Court also ruled that making reimbursement of
a patient's costs for treatment in another Member State subject
to prior authorisation constituted a barrier to the free provision
of services.
3.11 The Commission says that as a result of the
Court's rulings in these and other cases:
- People may seek, without prior
authorisation, non-hospital care in another Member State if they
would be entitled to that treatment in their own Member State.
- If they obtain prior authorisation, people may
seek hospital care in another Member State if they would be entitled
to it in their own Member State. Authorisation must be given if
the patient's own Member State cannot provide the care within
a medically acceptable time considering the nature of the patient's
condition.
3.12 The Commission also refers to the clarification
of two points as a result of the ECJ's decisions in the Watts
case[11] earlier this
year. The Court found that:
- the Treaty provisions on freedom
to provide services apply in Member States with health services
provided from public funds (such as the NHS in the UK); and
- the proviso in Article 152 of the EC Treaty does
not exclude the possibility that Member States may be compelled
by other Treaty provisions, such as Article 49, and by measures
adopted under the Treaty, to make adjustments to their national
social security systems.
3.13 The Commission considers it necessary, in the
light of the ECJ's rulings, to clarify legal questions such as
whether there are shared values and principles for health services
on which people can rely throughout the EU; how to reconcile greater
individual choice and patient mobility with the funds available
to pay for health systems; what scope Member States have to regulate
their own health systems without creating unjustified barriers
to free movement; and so on.
3.14 The Communication goes on to discuss other ways,
in addition to providing legal certainty, in which Community action
might help improve the efficiency and effectiveness of health
and social security systems. It cites, for example, Community
action to identify and share good practice (such as enabling patients
who live close to the border of their Member State to receive
treatment at a nearby specialist facility in the neighbouring
Member State).
The Commission's questions
3.15 The Commission's Communication lists nine questions
on which comments are requested by 31 January 2007. The questions
are as follows:
"Question 1: what is the current impact (local,
regional, national ) of cross-border healthcare on accessibility,
quality and financial sustainability of healthcare systems, and
how might this evolve?
Question 2: what specific legal clarification
and what practical information is required by whom (eg authorities,
purchasers, providers, patients) to enable safe, high-quality
and efficient cross-border healthcare?
Question 3: which issues (eg clinical oversight,
financial responsibility) should be the responsibility of the
authorities of which country? Are these different for the different
kinds of healthcare … ?[12]
Question 4: who should be responsible for ensuring
safety in the case of cross-border healthcare? If patients suffer
harm, how should redress for patients be ensured?
Question 5: what action is needed to ensure that
treating patients from other Member States is compatible with
the provision of balanced medical and hospital services accessible
to all (for example, by means of financial compensation for their
treatment in 'receiving' countries)?
Question 6: are there further issues to be addressed
in the specific context of health services regarding movement
of health professionals or establishment of healthcare providers
not already addressed by Community legislation?
Question 7: are there other issues where legal
certainty should also be improved in the context of each specific
health or social protection system? In particular, what improvements
do stakeholders directly involved in receiving patients from other
Member States — such as healthcare providers and social
security institutions — suggest in order to facilitate cross-border
healthcare?
Question 8: in what ways should European action
help support the health systems of the Member States and the different
actors within them? …
Question 9: what tools would be appropriate to
tackle the different issues related to health services at EU level?
What issues should be addressed through Community legislation
and what through non-legislative means?"
The Government's view
3.16 The Minister of State for Health Services at
the Department of Health (Ms Rosie Winterton) tells us that the
Government intends to engage energetically with the Commission,
Member States and others at an early stage of the development
of this initiative so as to achieve maximum influence and ensure
that the discussions deal with what the Government considers to
be the key issues. The consultation process provides the welcome
opportunity to bring clarity to the areas of legal uncertainty
created by the case law of the ECJ. In her letter of 27 October,
she says that she sees "potential advantage in EC legislation
not least in building a consensus between Member States and the
EU institutions on how European Treaty articles apply to health
care services".
3.17 The Minister enclosed with her letter the statement
of values and principles that Health Ministers agreed in June
(it is reproduced as an Appendix below.) She comments that "The
central point of this statement is that, although there are shared
values across European health systems, there are very significant
limits to the amount of harmonisation that could or should be
attempted".
3.18 Finally, the Minister says that she would be
delighted to give us oral evidence if we wish.
Conclusion
3.19 In our view, the Commission's Communication
is both important and valuable. The rulings of the Court of Justice
have created uncertainty which is unsatisfactory for patients,
health service providers and policy makers. We hope the consultations
the Commission has initiated, and the subsequent debate, will
lead to greater clarity about the application to health and social
security systems of the provisions of the EC Treaty on the free
movement of EU citizens and the removal of restrictions on health
providers who wish to provide their services across borders.
3.20 We welcome the Minister's offer to give oral
evidence. We consider, however, that the questions posed by the
Commission are of such importance and wide interest that they
call for debate in the European Standing Committee. This would
provide Members generally with the opportunity to put questions
to the Minister and to tell the Government their views on the
issues the Commission has raised.
3.21 Accordingly, we recommend the Communication
for debate in the European Standing Committee well before 31 January
2007, the closing date for responses to the Commission's questions.
Appendix: Statement on common values and principles
This is a statement by the 25 Health Ministers of
the European Union, about the common values and principles that
underpin Europe's health systems. We believe such a statement
is important in providing clarity for our citizens, and timely,
because of the recent vote of the Parliament and the revised proposal
of the Commission to remove healthcare from the proposed Directive
on Services in the Internal Market. We strongly believe that developments
in this area should result from political consensus, and not solely
from case law.
We also believe that it will be important to safeguard
the common values and principles outlined below as regards the
application of competition rules on the systems that implement
them.
This statement builds on discussions that have taken
place in the Council and with the Commission as part of the Open
Method of Coordination, and the High Level Process of Reflection
on Patient Mobility and healthcare development in the EU. It also
takes into account the legal instruments at European or international
level which have an impact in the field of health.
This statement sets out the common values and principles
that are shared across the European Union about how health systems
respond to the needs of the populations and patients that they
serve. It also explains that the practical ways in which these
values and principles become a reality in the health systems of
the EU vary significantly between Member States, and will continue
to do so. In particular, decisions about the basket of healthcare
to which citizens are entitled and the mechanisms used to finance
and deliver that healthcare, such as the extent to which it is
appropriate to rely on market mechanisms and competitive pressures
to manage health systems must be taken in the national context.
COMMON VALUES AND PRINCIPLES
The health systems of the European Union are a central
part of Europe's high levels of social protection, and contribute
to social cohesion and social justice as well as to sustainable
development.
The overarching values of universality, access to
good quality care, equity, and solidarity have been widely accepted
in the work of the different EU institutions. Together they constitute
a set of values that are shared across Europe. Universality means
that no-one is barred access to health care; solidarity is closely
linked to the financial arrangement of our national health systems
and the need to ensure accessibility to all; equity relates to
equal access according to need, regardless of ethnicity, gender,
age, social status or ability to pay. EU health systems also aim
to reduce the gap in health inequalities, which is a concern of
EU Member States; closely linked to this is the work in the Member
States' systems on the prevention of illness and disease by inter
alia the promotion of healthy lifestyles
All health systems in the EU aim to make provision,
which is patient-centred and responsive to individual need.
However, different Member States have different approaches
to making a practical reality of these values: they have, for
example, different approaches to questions such as whether individuals
should pay a personal contribution towards the cost of elements
of their health care, or whether there is a general contribution,
and whether this is paid for from supplementary insurance. Member
States have implemented different provisions to ensure equity:
some have chosen to express it in terms of the rights of patients;
others in terms of the obligations of healthcare providers. Enforcement
is also carried out differently — in some Member States
it is through the courts, in others through boards, ombudsmen
etc.
It is an essential feature of all our systems that
we aim to make them financially sustainable in a way which safeguards
these values into the future.
To adopt an approach that shift [sic] focus
towards preventive measures is an integral part of Member States
strategy to reduce the economic burden on the national health
care systems as prevention significantly contributes to cost reduction
in healthcare and therefore to financial sustainability by avoiding
disease and therefore follow up costs.
Beneath these overarching values, there is also a
set of operating principles that are shared across the European
Union, in the sense that all EU citizens would expect to find
them, and structures to support them in a health system anywhere
in the EU. These include:
Quality:
All EU health systems strive
to provide good quality care. This is achieved in particular through
the obligation to continuous training of healthcare staff based
on clearly defined national standards and ensuring that staff
have access to advice about best practice in quality, stimulating
innovation and spreading good practice, developing systems to
ensure good clinical governance, and through monitoring quality
in the health system. An important part of this agenda also relates
to the principle of safety.
Safety:
Patients can expect each
EU health system to secure a systematic approach to ensuring patient
safety, including the monitoring of risk factors and adequate,
training for health professionals, and protection against misleading
advertising of health products and treatments.
Care that is based on evidence and ethics:
Demographic challenges
and new medical technologies can give rise to difficult questions
(of ethics and affordability), which all EU Member States must
answer. Ensuring that care systems are evidence-based is essential,
both for providing high-quality treatment, and ensuring sustainability
over the long term. All systems have to deal with the challenge
of prioritising health care in a way that balances the needs of
individual patients with the financial resources available to
treat the whole population.
Patient Involvement:
All EU health systems aim
to be patient-centred. This means they aim to involve patients
in their treatment, to be transparent with them, and to offer
them choices where this is possible, e.g. a choice between different
health care service providers. Each system aims to offer individuals
information about their health status, and the right to be fully
informed about the treatment being offered to them, and to consent
to such treatment. All systems should also be publicly accountable
and ensure good governance and transparency.
Redress:
Patients should have a
right to redress if things go wrong. This includes having a transparent
and fair complaints procedure, and clear information about liabilities
and specific forms of redress determined by the health system
in question (eg. compensation).
Privacy and confidentiality:
The right of all EU citizens
to confidentiality of personal information is recognised in EU
and national legislation.
As Health Ministers, we note increasing interest
in the question of the role of market mechanisms (including competitive
pressure) in the management of health systems. There are many
policy developments in this area under way in the health systems
of the European Union which are aimed at encouraging plurality
and choice and making most efficient use of resources. We can
learn from each other's policy developments in this area, but
it is for individual member states to determine their own approach
with specific interventions tailored to the health system concerned.
Whilst it is not appropriate to try to standardise
health systems at an EU level, there is immense value in work
at a European level on health care. Member States are committed
to working together to share experiences and information about
approaches and good practice, for example through the Commission's
High Level Group on Health Services and Medical Care, or through
the ongoing Open Method of Coordination on healthcare and long-term
care, in order to achieve the shared goal of promoting more efficient
and accessible high-quality healthcare in Europe. We believe there
is particular value in any appropriate initiative on health services
ensuring clarity for European citizens about their rights and
entitlements when they move from one EU Member State to another
and in enshrining these values and principles in a legal framework
in order to ensure legal certainty.
In conclusion, our health
systems are a fundamental part of Europe's social infrastructure.
We do not under-estimate the challenges that lie ahead in reconciling
individual needs with the available finances, as the population
of Europe ages, as expectations rise, and as medicine advances.
In discussing future strategies, our shared concern should be
to protect the values and principles that underpin the health
systems of the EU. As Health Ministers in the 25 Member States
of the European Union, we invite the European Institutions to
ensure that their work will protect these values as work develops
to explore the implications of the European Union on health systems
as well as the integration of health aspects in all policies."
Rosie Winterton MP
The Minister of State for Health Services
Department of Health
8 Commission Communication, page 2, last paragraph. Back
9
Case C-158/96 Kohl [1998] ECR I-1931, and Case C-120/09 Decker
[1998] ECR I-1831. Back
10
Commission Communication, page 3, last paragraph. Back
11
Case C-372/04 R (on the application of Yvonne Watts) v. Bedford
Primary Care Trust, judgment of 16 May 2006. Back
12
The Commission identifies four kinds of cross-border healthcare:
provision of services (such as laboratory services); use of services
abroad by patients; the permanent presence of service providers
from one Member State in the territory of another Member State;
and the temporary presence of such service providers. Back
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