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House of Commons
Session 2006 - 07
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General Committee Debates
European Standing Committee Debates

EC Action on Health Services

The Committee consisted of the following Members:

Chairman: Dr. William McCrea
Betts, Mr. Clive (Sheffield, Attercliffe) (Lab)
Cunningham, Tony (Workington) (Lab)
Gidley, Sandra (Romsey) (LD)
Kennedy, Jane (Liverpool, Wavertree) (Lab)
Kirkbride, Miss Julie (Bromsgrove) (Con)
Moffat, Anne (East Lothian) (Lab)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Penrose, John (Weston-super-Mare) (Con)
Pugh, Dr. John (Southport) (LD)
Rosindell, Andrew (Romford) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Watson, Mr. Tom (West Bromwich, East) (Lab)
Winterton, Ms Rosie (Minister of State, Department of Health)
Mark Etherton, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 119(5):
Dunwoody, Mrs. Gwyneth (Crewe and Nantwich) (Lab)

European Standing Committee

Tuesday 16 January 2007

[Dr. William McCrea in the Chair]

EC Action on Health Services

4.30 pm
The Minister of State, Department of Health (Ms Rosie Winterton): It is a pleasure to serve under your chairmanship, Dr. McCrea. I welcome the opportunity that this debate provides for right hon. and hon. Members to consider some of the issues concerning the European Commission’s communication on health services.
Hon. Members may know, or will have gathered, that the Commission intends to bring forward legislative proposals on health at some point in 2007 following consultation. The European Scrutiny Committee expressed its interest in the matter on a number of occasions and I offered to speak to the Committee about the latest developments, but it referred the matter to this Standing Committee for debate because, while it welcomed my offer to give oral evidence, it considered that the questions posed by the Commission were
“of such importance and wide interest”.
I hope that it will help hon. Members if I explain some of the background to the Commission’s proposals.
The communication that we are debating today notes some of the principles developed by the European Court of Justice on the rights of patients to go to another EU member state specifically to seek medical treatment at the expense of their own health system. Those principles derive from the treaty articles on the free movement of services, which set out the rights of individuals to access services and for providers to provide services throughout the European Union. However, recent European Court judgments have created some legal uncertainty in health matters, which is unhelpful to member states. The communication also looks broadly at areas where non-regulatory co-operation—for example, in the sharing of best practice between doctors in different EU countries—can be of value to member state Governments’ work. It asks what form such co-operation might take and how it can most effectively be facilitated.
Last year, the ECJ delivered its verdict in the case of Mrs. Watts, who had gone to France to have a hip replacement rather than wait to have it done on the NHS. She is now claiming the cost of the operation from the NHS. Without deciding whether she is entitled to have her costs refunded—that will be decided in the High Court in England—the ECJ judgment confirmed that the legal principles of patient mobility developed in previous cases brought before the ECJ apply to the NHS as well as to health care systems based on a system of social insurance.
During the past year, the services directive passed through the European Council and the European Parliament. In the course of discussion, health care was excluded from the scope of the directive. That was a key negotiating point because we thought it was inappropriate to treat health care in the same way as any other service industry. We and member states throughout the EU, and the European Parliament felt that it should be considered as a sector with its own specific features and importance.
However, the exclusion of health care from the scope of the services directive does not exclude it from the application of the provisions of the European treaty and the law derived from it. The current legal situation, as defined by ECJ case law, is unhelpful and contains many areas of ambiguity. For example, it is not clear whether member states can require a patient seeking non-hospital treatment in another member state to seek authorisation from their local health care fund—in the UK, that would be the local primary care trust—before going for treatment. There is also a lack of clarity about who should take overall responsibility for the safety and well-being of patients who cross borders to receive health care. That is clearly unhelpful and unsatisfactory for patients. For example, who should take responsibility for the well-being of a patient who goes abroad to seek treatment of their own accord, but who suffers medical complications from clinical negligence?
The main driver of the law so far has been the cases in the European Court of Justice. We feel that it is inappropriate for the law to develop without appropriate political input, and that is a view shared by other member states. Should member states and the EU institutions fail to take action in that area, the law will continue to develop through individual cases that are brought before the European Court of Justice, rather than through due political process.
As a result, last year the European Council of Health Ministers issued a statement of values and common principles, a copy of which has been sent to members of the Committee. That was an important stake in the ground from the member states, and has helped to set the tone for the discussion that has followed. Briefly, the statement emphasised that member states have the responsibility for managing their own health systems, in the manner of their choosing, and that any proposals at EU level must respect that fundamental point.
The Commission’s communication is a logical development from the events noted above. It sets out the areas for discussion and debate among the member states and with wider groups, such as the health professions, the European Parliament and patient groups. The consultation on the document closes at the end of this month. The Commission will then publish a formal response on the consultation, probably within two or three months. We expect legislative proposals to follow some time in 2007. Any proposal will follow the co-decision procedure, which means that it will have to pass through and be agreed by both the Council of Ministers and the European Parliament. Any proposal will also be debated initially in the Council by Health Ministers.
In the consultation and the discussions that will follow, we shall work to protect the UK’s interests. We shall argue that the following principles be reflected in any proposals. Any legislative proposal must be proportionate, and must not go beyond what is needed to resolve the specific problems that we face. Any proposal must also provide for a sustainable way of managing patient mobility. Member state referral processes must be respected; so, where a referral from a GP is needed to access a service in the UK, patients should need a similar referral, from a British GP, to access that service in another EU member state.
Determining what treatment is offered to patients is a matter for member states to decide. Member states must be able to restrict the level of payment for treatment abroad to the cost of that treatment, if it was delivered in the UK. It must be the standards, governance and systems of redress of the member state where the treatment is carried out that apply. Member states can prioritise treating their own citizens above citizens of other member states who travel to them specifically to receive medical treatment. That would permit member states to manage patient mobility in a sensible and sustainable manner.
I hope that right hon. and hon. Members will agree that the motion sets out the key issues raised in the communication. It would send a good message from Parliament if we were to agree that this is how we would like any legislation to develop. I hope that right hon. and hon. Members will support the Government motion, and that we will work hard to engage the dossier proactively and to influence its development as much as possible.
The Chairman: For the guidance of the Committee, we now have until 5.30 pm for questions to the Minister. I have been given guidance that Members should be brief in their questions and should ask them one at a time. It is likely that there will be ample time for several questions from different Members. We will see how we get on and whether we need to extend the time to make it a profitable exchange.
Mr. Stephen O'Brien (Eddisbury) (Con): I am glad, Dr. McCrea, to have my first opportunity to serve under your chairmanship. Recognising the style of today’s European scrutiny debate, I note the Minister’s opening statement and I am grateful for the opportunity to question her. I have not noticed this room being used for Standing Committees before, and I congratulate the officials on being able to squeeze into the corner.
It is worth putting on record at the outset that the Conservative party is concerned about the motion’s title. It would be relevant if the dossier was being debated on the Floor of the House under domestic legislation, but the motion is entitled “EC Action on Health Services” when in fact it concerns a consultation. It is important to recognise that we are dealing with a consultation. If the dossier had to do with action to be taken by the European Commission, I dare say that our depth of worry about some of the things that it contains and envisages would be that much more serious.
As a preliminary to my first question, it is fair as the official Opposition’s spokesman to say that in the light of the ECJ ruling the Government both have an obligation and are trying to fix a problem. Inevitably, though, in trying to fix a problem, we are forced to do something. Doing nothing is not an option. Therefore, in having to do something, we have a legislative and political event. It has now been proposed by the Government, obviously seeking the House’s support, and we need to recognise that we must take this opportunity, given the technicality, depth and complexity implied, to examine all the ramifications and implications. It is simply not good enough to say at a later stage that we ducked our opportunity to understand what the ECJ ruling and European Commission’s proposals were bringing into our domestic field of social and legislative behaviour.
As an introduction, Dr. McCrea, and to ensure that I abide by your ruling that we should keep questions in a sensible format—mine fall under certain headings—I thought that Members might find it helpful if I outlined my main concerns, so that the groups of questions will be more obvious as they come and Members can decide whether to row in behind. The first concern that the consultation gives rise to is the spectre of an EU health service. The second is the threat to member state autonomy, particularly in finance and ethics. The third is the threat to UK specialisms and expertise, particularly in biotech. The fourth is the impact of last summer’s ECJ ruling and the extent and power of any European e-health area, to coin a phrase. The fifth is what responsibilities the UK might accrue to member states with less developed health care. The sixth area of questioning will examine the Department of Health’s track record in lobbying European institutions for a successful outcome.
The first question is whether we might have to consider the possibility or ramifications of a pan-European health service. Is the consultation moving toward that, and does the Minister thus envisage an EU-level regulator either of the health care market, along the lines of the Office of Fair Trading, or of the care itself, along the lines of the Healthcare Commission and the Commission for Social Care Inspection? As a corollary, how will patient safety and health care quality be monitored and protected? It is important for the Minister to say what she makes of the proposals to gather an evidence base at European level and in respect of a European-level observatory.
Ms Winterton: Legislation is necessary as a result of European court judgments where there is ambiguity over a number of issues. In respect of the idea of a European health service, we want first to clarify the ability of member states to run their own health care systems, taking into account that issues such as patient mobility have already arisen through case law because of some of the provisions of the treaty. We want legislation to clear that up.
On some issues it is right that there should be European co-operation. For example, we have been considering co-operation on the treatment of a very rare disease in centres that could also conduct research into such conditions. However, European co-operation in that area might have to be limited to the extent that it would not be possible. My officials will remind me of the condition we were looking at.
Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): It was rare.
Ms Winterton: That is why I cannot remember it. The condition was rare and it was not possible to provide sufficient back-up for an individual member state to be able to consider it. We should not see what is being proposed as threatening; we are trying to clear up ambiguity that has arisen as a result of European court decisions.
Mrs. Dunwoody: I am grateful to you for allowing me to exercise my right to ask questions, Dr. McCrea. May I ask the Minister first if the United Kingdom accepts that only an insurance-based scheme will be continued in this country and that it will alter the implications in respect of foreigners being able to use certain parts of the health service? It seems to be clear from the consultation document that in future health-related data will be transferred between different health systems. What is the Government’s attitude to that proposal? Do considerations of confidentiality concern them? What do the Government estimate will be the cost of British nationals electing to go abroad without referral from a general practitioner for self-selected operations, which cannot be clinically controlled by British consultation? What will be the result of British nationals obtaining surgical assistance in other EU countries and requiring subsequent work? Who will be responsible for the cost? Who will ensure that the standard of safety is acceptable? What does the reference to care outside hospital, such as dental care, mean? Are we to assume that, even though the national health service is losing large numbers of dental practices, it will be possible for dentists on the continent not only to treat British nationals, but to charge for that work? This is only the beginning, Dr. McCrea, but I interpret your sensible movements to mean that I must not push my luck too far.
Ms Winterton: On the transfer of health-related data, I think that we would all accept that if a patient were to gain permission from a PCT to go abroad for treatment, the data should be transferred to help the operation to take place. There would be a need to know the patient’s medical history, for example.
The cost of going abroad for treatment without referrals is exactly the problem that we are trying to overcome. That is the kind of thing that would prevent us from properly planning our health service, which is why we want to build into legislation the principle that the normal referral practice of the country concerned must be followed. If it is necessary to get a referral from a GP to go into hospital in the UK, that process would be followed if a patient were to request treatment abroad.
Mrs. Dunwoody: Would that be influenced by a timeline? If the local district hospital was unable to perform a particular operation within a certain time limit, for example, would that open the door for an individual to go elsewhere and claim an urgent need for treatment?
Ms Winterton: I was just about to come to that. We want to achieve a position—this relates to the Watts case—whereby the PCT would be forced to grant an individual’s request for treatment abroad only if an NHS clinician considered that there was an undue delay. If the treatment could not be provided locally or anywhere else in the country under the choose-and-book system and the clinician said that there would be an undue delay, the PCT would have to accede to a request to go abroad for treatment. My hon. Friend will know that it is possible for a PCT to send a patient abroad if it so chooses, but we are trying to clarify the point at which it is forced to do so.
Mrs. Dunwoody: I am grateful to my hon. Friend for her indulgence. She will be aware that British nationals who have worked abroad and not contributed to the national insurance scheme in the last two years frequently find themselves unable to receive NHS treatment without being charged very large sums for it. Am I to take it that these changes would mean that even if they could not be charged under existing NHS regulations, if they were British nationals and therefore part of the European Union, they could nevertheless receive that treatment free on the basis of it being available to European citizens, or are we to assume that they would still be regarded as exceptions to the rule?
Ms Winterton: I will write to Committee members if I have mistaken the matter, but I thought that the issue of people not being able to receive treatment concerned whether they were resident outside the European Union. The current system in the European Union is that through the EHIC form, anybody who becomes ill whilst working abroad or on holiday can receive treatment in a European country. If somebody is permanently resident, and we have a reciprocal arrangement with that country, such as if somebody is on holiday in Germany and breaks their leg skiing—if people can ski in Germany; I am not quite sure—they will receive treatment there. Such treatment matches the payment systems of the country involved. The same would apply to a German in the UK.
Mrs. Dunwoody: On this narrow point, would that also be the case if, in effect, a PCT had given consent to the movement abroad of a patient? I think that that is a sensible argument, but how would it stand up legally if a PCT had taken responsibility for allowing the patient to go abroad?
Ms Winterton: That is exactly why we want to enshrine that in legislation. My hon. Friend is absolutely right to say that there are areas of ambiguity. That is why we have to be absolutely clear about the responsibilities that member states have for managing their own health care and redress systems. If a patient decides that because of the speed with which they require an operation, they want to go elsewhere, that has implications, in the same way as there are implications to a certain extent for aftercare. It is also important to remember that patients would be told that they would be reimbursed for the cost of the treatment that would take place in the UK, including a visit by a district nurse if that was to happen in another country. It would be for the individual to realise what they would be reimbursed for.
Several hon. Members rose
The Chairman: Order. We have to try to have briefer questions and briefer answers because quite a number of Members want to get in and a number of questions are still to be asked. I will try to get in as many questions as possible.
Dr. John Pugh (Southport) (LD): I shall be brief. I picked out the words “proportionate”, “sustainable”,
“referral according to member state rules”
and “prioritising domestic patients”. I began to think that this piece of European legislation would even pass the Daily Mail test. That may be an extreme remark.
May I go back to the fundamental principles, some of which have been covered? An axiomatic principle of this legislation is that there is no such thing as a free ride in Europe. The host country’s costs will always in principle be recoverable in full. I also understood the Minister to say that if a host country provides health care that is judged below standard by the standards of the home country, that is at the patient’s risk and there are no grounds for complaint subsequently. If there is a definite failure in any country or in any system, where is that established? Would it be established back in the host country or would it be established in the home country and who then compensates?
May I add to that a further question about standardisation and uniformity? Health care providers across Europe have different standards of clinical governance. Clearly what meets the standards of clinical governance in, say, Bulgaria may not be satisfactory in the UK. Therefore would a Bulgarian provider need to pass further tests in order to satisfy clinical governance requirements within the UK?
Ms Winterton: Perhaps I should clarify the issue of complaints and standards. The difference here is that if a PCT commissions care and it decides to have 100 of its hip operations carried out in a French clinic, it would retain a duty of care over those operations. If it accedes to a request by a patient to have treatment elsewhere it is the patient who is taking the risk and he or she would go through the redress procedures in the home country. That is what we are arguing for.
Mrs. Dunwoody: Would not any patient finding themselves in that situation simply go back to the ECJ? The ECJ has made it very clear through all the consultation documents before us that this is not a matter of health care, but of freedom of movement and money. This is the entire basis of the documents and the consultation. Would it not be therefore open to any patient finding themselves in that situation simply to take the United Kingdom back to the Court?
Ms Winterton: We have to distinguish between what we want to argue for in future legislation, the principles we want it to include, and our ability to respond to the Commission’s consultation document accordingly. That is why we say that these are the principles that we believe are right so that we do not continue to be in our present rather ambiguous position. There are some things in the Commission’s document with which we do not agree and we shall obviously be making that clear in our response to it. We have undertaken work on the common values and principles and want to achieve a position in which we can say what principles we think should apply and argue in respect of them.
There is scope for co-operation at European level on clinical governance. One of the areas that we consider to be important in respect of increased co-operation might be information passed about professionals who may work in different countries and any proceedings that might have been taken against them, so that patients and others have such information to hand. The movement of health care professionals ensures such co-operation when it comes to patient safety.
Mr. O'Brien: On a point of order, Dr. McCrea. In light of what the Minister just said, it suddenly occurs to me that we need some guidance to clarify the position if, on presentation of the motion, we voted against it and were successful. What would happen to the current process and the consultation that is meant to end this month? It would provide backbone to the Minister in discussions to which she has referred. We would welcome her being successful in discussions with the European institutions, but if she were not we would want the opportunity to give her more backbone.
The Chairman: It is possible for hon. Members to vote against the motion, which is to take note of the document. If they vote against it, it is up to them. Can the proceedings continue? Quite a few hon. Members want to speak.
Jane Kennedy (Liverpool, Wavertree) (Lab): I think that, at what seems to be an early stage in the discussions between Governments and the Commission, we should do precisely what the hon. Gentleman is suggesting and reinforce our worries to the Minister. For example, we are discussing the preliminary to legislation. I would be much happier if my right hon. Friend can reassure me about matters. She talked about the need to clarify the right of member states to operate their own health systems. I want her to be more robust on that and to insist that it is the British position that the health system that we operate is a matter for member states; and that where clarity is being sought, it is only on the narrowest detail, of the kind that my hon. Friend the Member for Crewe and Nantwich has been proposing.
For example, question 8 asks,
“in what ways should European action help support the health systems”?
It is entirely proper that we should, within the NHS, look to co-operate with other health systems in Europe on research and rare illnesses. It would not be proper for the European Commission to seek to take on a role in directing or managing that process. Free-flowing co-operation between professionals would be very much more productive than anything that the European Commission might want to bring about.
Ms Winterton: As always, my right hon. Friend is absolutely right. She has a lot of experience of the presidency, especially on patient safety and other issues on which we have considered whether co-operation would be helpful. Issues also arose during the presidency about exchange of best practice in areas such as public health and mental health. That has been good, in that it has enabled professionals and others to learn from each other.
It is important to remember that it is essential for us to have political consensus on this. As my right hon. Friend said, that sends out the message that we are clear that we want the right to run our own health service. That is probably more important in the case of our health service, which is funded through taxes, than it is for those of other member states, so our need to make that point is more acute than others might think. That is why we tried to establish common values and principles to which all countries could sign up and with which they would feel comfortable; it is the basis on which we have been working to get consensus across member states. We shall insist on retaining it, although some states might not attach as much importance to the matter as we do.
Mr. O'Brien: I indicated earlier that I had several sets of questions. This has been a fascinating exchange and I am grateful to other hon. Members for having touched on this matter, enabling my contribution to be a bit briefer.
My first set of questions to the Minister was about whether there was potential for a pan-European health service, and a further question arises from her answers. Even if there is to be European co-operation only on limited issues and, if I understand her correctly, the autonomy of member states is guaranteed, we still need some assurances from her. It would appear from page 24 of our documentation that the consultation found that no legislation can offer a mechanism for keeping instruments and laws up to date. As legislation is necessarily slow, and health service reform and restructuring—particularly under this Government’s policies—is fast, it appears that the consultation is pushing for the creation of a central bureaucracy. I hope that the Minister will give us some reassurance about that.
In the interests of time, let me link my remaining questions to my first remark. Can the Minister reassure us on the importance to UK plc of ensuring that our centres of excellence are not forced to move to other European states? How will she ensure that UK intellectual property is safeguarded? Will we be forced to regionalise the way in which the national health service is run in order to satisfy EU bureaucracy, which would seem to be implied by some of the provisions that are envisaged?
Ms Winterton: I am not sure that I understand the regionalisation point. Perhaps we can come back to that. I did refer to the possibility that under rare conditions some centres already co-operate. I believe that there has been some co-operation with the Netherlands—there is a centre there with which there has been a certain amount of co-operation—but that is about it. We want to be responsible for organising our health services. We need to reflect in our legislation the principles of the recommendations, not every detail. I cannot see where a huge central bureaucracy comes into it. If the hon. Gentleman means such matters as intellectual property, that is currently governed at EU level but within that structure the health services take responsibility. There is no doubt that the centres of excellence that we have for cancer or heart disease will remain in the UK. I see no reason why there should be any change in such provisions.
Dr. Pugh: May I follow up on a couple of questions? Page 7 of the document states that the EU wants interoperability of data systems, and we are currently considering the evolution of connecting for health in this country. Attached to such systems are strong confidentiality protocols. Will the Minister explain how those will apply when we share data with clinics in Paris as well as those in Rotherham and elsewhere in the UK?
Following on from the matter of the intellectual property of drugs companies and so on, there are other issues related to pharmacy. The ambition of a Eurocrat would be to have uniformity in prescription rules, to which we in this country would not warm. For example, if there was greater uniformity and agreement, could non-NICE drugs be obtained abroad and the fee charged to the NHS, or could drugs considered safe in one part of Europe be banned elsewhere? There are different views on the efficacy and safety of certain drugs, and I wonder in what direction we are travelling on the matter.
Ms Winterton: Again, I return to how we envisage treatment taking place when there is a request from a patient to be treated in another member state, to which a PCT must accede. It does not mean that somebody will be able to purchase drugs abroad and charge the NHS. Such issues are why we are discussing prior authorisation and how to set up a system whereby specific permission has to be given for any such health activity.
On the exchange of health data, although there may be some occasions when that is necessary to facilitate treatment, it is important to realise that there are practical considerations. We would need to know that there was a real need to exchange data for the safety of a patient, and consent and confidentiality will remain paramount. We must also remember that patient notes written in one language might not necessarily be intelligible to someone who speaks another. There is no locus for creating a compulsory database.
Dr. Pugh: Page 7 is essentially on interoperability, which the Minister has partly covered. We have a rather peculiar system in this country for fixing the price of drugs, which differs from that in Europe and can lead to sharp differences in the price of certain drugs. Does the Minister suppose that that system whereby the NHS and the drugs companies fix prices will survive legislation such as that anticipated by the EU?
Ms Winterton: Yes, I do. There is currently EU-wide licensing of pharmaceuticals, but pricing issues are for individual member states to decide.
Mrs. Dunwoody: May I therefore draw my right hon. Friend’s attention to this statement which he says has been agreed by the “common values and principles”. It makes it very clear that there are practical ways in which values and principles become reality and that they vary significantly. The “decisions about the basket of health care, to which people are entitled” and the mechanisms—it goes on to make it clear that it is talking about market mechanisms—are fundamentally different from those principles which apply in this country. There is also a fundamental dichotomy, for which I would like an explanation. On the one hand, in the European document:
“The right of all EU citizens to confidentiality of personal information is recognised in EU and national legislation”
but it also states, in the paragraph that I quoted earlier, that this information can be transmitted from one country to another.
Ms Winterton: We want to ensure that, if that was going to happen, the important principles of consent and confidentiality would remain and that it would be done in the interests of the patient. There are issues whereby anonymised information might be transferred, for example with regard to public health or demographic profiles and so on, but I cannot envisage the circumstances where we would want, without the consent of the patient, to transfer information about an individual unless it was going to actually assist them in some kind of medical procedure.
Mr. O'Brien: Referring specifically to the ECJ ruling and the distinction that the Minister quite properly drew our attention to between hospital and non-hospital care and the two categories that require or do not require prior authorisation, could the Minister tell us whether audiology, podiatry, digital retinopathy and physiotherapy count as non-hospital care to which a person is entitled in the UK, or are they hospital care? If so, what is the medically acceptable time limit for their treatment? Likewise, does fertility treatment come under that latter category? While on the question of inclusion, because of the ECJ ruling, how does this apply to social care, especially in relation to countries that deem aspects of care that we would call social care to be health care? That leads to the subsequent question: how will the Minister ensure that the NHS is always paid at least a tariff price plus any extra costs associated with the complexities of cross-border health care?
Ms Winterton: I will try to answer as many of the hon. Gentleman’s questions as possible but he may have to come back to me as I do not have all of them.
Regarding hospital or non-hospital care, that is exactly why we do need to have some clarification in this area. Increasingly we are seeing a number of services performed outside hospitals that might traditionally have been done in a hospital setting. There is a great deal of confusion around this. For example, we do have an issue with the Commission whereby the communication says that patients can access non-hospital care without prior authorisation. The Commission says that that is what the Court has said. We disagree with that profoundly and we will be saying so in our response.
What we believe the Court has said is that it has not yet seen a justification for prior authorisation of primary care but it has not ruled it out. I think that was the Muller-FaurÃ(c) case. This is exactly why we have said that we want to see a clarification in some of these areas.
The hon. Gentleman also asked whether there was agreement on what would be an unacceptable delay for individual treatments. We do not believe that it is possible to try to achieve an overall clinical judgment that would extend across the EU for those types of decisions, because that would lead us down exactly the path that we do not wish to follow. If we tried to dictate a Europe-wide agreement on what constituted an undue delay for particular treatments, that would cause precisely the disruption that we want to avoid. Hence we have made it clear that the decision on when individuals need treatment should be made by the clinician from the country concerned, not by some other body. If the hon. Gentleman was suggesting that that should be done on a European level, I can say that that is not the direction that we want to take.
On social care, the discussions that people would have are of the kind that should take place with a PCT, because the hon. Gentleman is right to say that in some countries a certain type of treatment “X” might be considered nursing care or alternatively social care. We would have to be clear that reimbursement would relate first to the cost of the procedure within a member state, and that what would be expected within a member state would come second. As I have said, if the service were a health care service in relation to which one would receive a visit from a district nurse, that may be covered, but it would relate to the cost of what would happen in an individual member state. There should not be billing from elsewhere on a whole range of activities that a PCT may not have agreed to. That is why we need to be clear that the principles of treatment applying in an individual member state should be the decider in the treatment that patients can expect—if they want to insist on treatment in another member state.
Mrs. Dunwoody: Before she sits down, will the Minister indicate the time scale? The motion on the paper is a “take note” motion, and we know that what happens with them is that they go back down to the Floor of the House without debate. Will she undertake, before she sits down, that as the discussion is a continuing one, not only will she give the House up-to-date accounts of what she is doing and of the future negotiations, but matters will be debated on the Floor of the House? The future of the national health service is far too important to be leached away by a series of unacceptable directives. I am only asking questions, however.
The Chairman: Before the Minister responds, the hour allowed for questions is almost over. It appears, however, that a number of questions remain to be asked. Under the provisions of Standing Order 119(7), therefore, I shall extend the time to allow further questions to be asked. We shall then proceed to the debate after no more than an hour and a half. Any extra time given to questions is, of course, taken out of the time for debate, because we must finish no later than 7 pm.
Ms Winterton: My hon. Friend is right that there will, I suspect, be a great deal of interest in the area. That is why the European Scrutiny Committee wanted the debate.
The Commission is going through the consultation process, and we shall send our response at the end of January. We expect that the Commission will publish its formal response within two to three months, and legislative proposals will follow at some point in 2007. Because of the co-decision procedure, any legislative proposal will have to go through the Council of Ministers and the European Parliament. The Commission has not yet said whether it will produce a regulation or a directive. If the proposals are wide-ranging, we would want to see them in the form of a directive, so that they can be put before Parliament for discussion. We expect that to be so. From this Parliament, we are trying to make it clear that we want to keep the principle of member states running their own health systems.
Mr. O'Brien: Just for the record, the Minister covered the social care point, though there will be some serious worries about the interpretation abroad of what we in this country would call continuing care and social care. I was hoping that she would respond on the issues of audiology, podiatry, digital retinopathy and physiotherapy. It is important that we understand what is happening in those areas as they are becoming increasingly relevant in an ageing population—
Mrs. Dunwoody: Expensive.
Mr. O'Brien: And expensive, as the hon. Lady says from her sedentary position. I have a simple question. What guarantees can the Minister give that UK research, health care services and taxpayer funds will not be used to bail out health care systems in other member states?
Ms Winterton: With regard to audiology, podiatry and physiotherapy—
Mr. O'Brien: And digital retinopathy.
Ms Winterton: —and digital retinopathy, a few of those treatments are provided on an ongoing basis. I am curious because hurtling backwards and forwards on the issues may become a bit ludicrous.
Mrs. Dunwoody: The Minister is aware that large numbers of people are able to obtain assistance for cataracts with laser surgery through the NHS, but it is possible that there will be waiting lists from time to time. What concerns us is that people should suddenly have the right to go elsewhere without the protection they can expect in this country. Almost inevitably, the result will be that people in the NHS have to tidy up the mess when such people come home. But I do not want to be thought prejudiced.
Ms Winterton: Again, that is exactly why we want to see a proper authorisation process. Under the circumstances that we wish to arrange with legislation, it would be for a primary care trust to provide authorisation if somebody requested a treatment and the PCT had to provide it. If an NHS clinician said that there was going to be a serious undue delay to a person’s treatment, there would be a discussion about that person being able to access treatment elsewhere. I am slightly concerned about the practicalities of providing a treatment such as podiatry on an ongoing basis. I am not sure that the treatment is one that patients would say that they wanted to receive elsewhere.
In 2005, only 250 people accessed care in another member state. People want their health services, particularly the treatments referred to, provided closer to home.
Mr. O'Brien: As a subset of the same question, what the hon. Member for Crewe and Nantwich and I have been driving at is that inevitably a lot of attention will be paid to this and we hope that there will be accountability throughout the negotiations conducted by the Minister. However, one obvious consequence is that large numbers of people will see exciting opportunities to compare availability here with that in other member states and think about what might be encouraged. Therefore, we need to define true rights and entitlements and how that affects both our ability to control and be accountable for the health service in this country. We also need to make sure that we do not damage it either by leaching one way or by having to pay for things in the other direction.
Ms Winterton: That is exactly why we want some of the principles in the legislation to address the fact that people can request treatment elsewhere that is the same as that provided by their PCT. A person cannot demand treatment elsewhere that is not provided by the NHS. We want to be very clear on that principle. There has to be prior authorisation for the treatment and it has to be something that is provided within the member state’s health care system. Reimbursement would be at the cost of that treatment in the member state. There is nothing in the provision that says that one member state will bail out another facing problems with its health service.
Mr. O'Brien: I am grateful for that. What has become clear from the Minister’s answers is that quite understandably and totally appropriately, the Government, suddenly faced with the prospect of having to fix this problem, are bringing forward these proposals, and we are dependent on the successful outcome of the negotiations that Ministers will undertake and in which they will hopefully succeed.
We have been fortunate in genuine emphasis being given to retaining domestic control of our health service. However, we have had the prospect over many years of a questionable approach to and a lack of success in the food supplements area, which has caused anxiety over many years. That has now moved to a different phase, or we would like to think it has in recent times. Therefore it is fair to ask the Minister what prospects does she feel she has, what allies has she already established, what discussions is she having with equivalent Ministers in other member states to give her confidence that the Government’s stance can succeed in these negotiations. Without her satisfactory answer, it is incumbent upon us to find ways of helping her in those negotiations. Otherwise, we all face being dragged down by the same problem.
Ms Winterton: It is encouraging that, through the Council of Ministers, we have been able to achieve common values and principles. We have been successful in making the Commission aware that this is something that the Council of Ministers has agreed to. The Commission’s reference to that in its consultation document has been important in shaping the debate, and because of the way our health system is funded, we have an interest in that. It has been important to engage other member states in the debate, to get their support and we have been able to do that. However, as I have said before, an important part of that is sending a clear message from this Parliament that there is agreement and that the approach does have widespread support.
Mr. O'Brien: I am just getting used to this unusual process, Dr. McCrea.
Mr. Clive Betts (Sheffield, Attercliffe) (Lab): Too used to it.
Mr. O'Brien: I am so glad to find that the hon. Gentleman is alive.
I am grateful to the Minister. We need to ensure that these Committee proceedings, the approach of the House to this matter and the Government’s transparency in trying to fix this problem are circulated as part of the briefing paper, so that they can help officials dealing with a European Commission decision, in reinforcing the Minister’s view, to understand the questions and concerns that have been raised in this question session—whether or not we proceed to debate the matter afterwards.
There is a further question to consider, which was touched on by the hon. Member for Crewe and Nantwich and is encompassed in the documents with which we have been provided, about the European e-health area and the communications and disclosures that surround it. Although the Minister has given some answers on that already, I am worried that the connecting for health programme does not appear to be geared up to join the European e-health area. Perhaps she could mention how much capacity she thinks there is in the connecting for health programme at the moment, given all the other concerns that there have been with it. Also, where does the more recent climb-down on patient records and the opt-in/opt-out discussion sit with giving Europe-wide access to our medical records?
Ms Winterton: I beg the Committee’s indulgence. I do not know the up-to-date position with regard to connecting for health and the implications of how that would feed into the e-health area. I should like to write to members of this Committee and the Scrutiny Committee to address that, because if I tried to do so now my answer would not be as full as it could be. As hon. Members have said, there are some important issues about confidentiality and so on. If it is acceptable for me to write to Committee members, it would be a more useful way to approach the matter.
Mr. O'Brien: That would be fine, providing a document is attached to the papers that are available with this package in the Table Office. Any hon. Member seeking to understand the full ramifications should have that explanation on the record.
Dr. Pugh: Two aspects regard interoperability: who has access to the information and how. If it is ever going to happen and if it is ever going to be useful to us for our records to be known about in Paris as well as in Rotherham, we will need systems. Actually, we are more likely to have accidents in Paris than Rotherham, so it is important that the systems can speak to one another. Therefore, the system’s design needs to be taken into account. That is beyond the Minister’s remit.
Ms Winterton: You bet!
Dr. Pugh: Any information on that would be helpful.
Ms Winterton: For me to venture comment on the design of IT systems at this point would be rather above my station. Of course, I shall try to address those points in a letter.
Mr. O'Brien: The Minister rightly moves swiftly away from that point, leaving it for a future draft. I hope she is able to command someone else to prepare the first draft. I put my question on the record in the hope that it would be helpful. I hope that we will learn whether Her Majesty’s Government have it in mind to lobby for a central European spine through the interoperability standards or is a European health card is envisaged that would transfer health-related data? That issue is important particularly if we bear in mind the recent controversies in this country in relation to patient records and identity cards.
One final area for questioning relates to a point that I raised earlier about the ramifications of this measure, which could affect our world-class, competitive biotech industry and result in an essential pull to the research and development base, which is so competitive, not least in the north-west which is represented by a number of Members present. Has the Minister been able to develop assurances over particular concerns, where EU ethical decisions could override UK ones?
Let us not beat about the bush, euthanasia is an obvious source of controversy. Euthanasia, in certain circumstances, is permitted in some other member states. [Interruption.] There is the issue of stem cells—that was a welcome prompt from a sedentary position, but it was on my mind. I have been to the research triangle in North Carolina and been given a lecture about our competitiveness in pharmaceutical and biotech. However, because of political decisions taken in America, we have ended up with a world-class and world-beating No. 1 position in certain areas of genetic-based biotech. We need to be clear that the EU interlinkage envisaged will not have any diminishing, constraining, legislative or penal effect upon the competitiveness that we have developed in this country within the framework of ethical standards defined through Parliament and other accountabilities. I hope that the Minister is able to assure us, and has discussed with the industry and Ministers in the Department of Trade and Industry, that whatever it takes will be done to ensure that there is no danger of the proposal impacting on the fundamental competitiveness of our country.
Ms Winterton: I absolutely agree with the hon. Gentleman that the industry is extremely important, particularly, as I said before, in terms of intellectual property, which is managed at an EU level. Issues of competitiveness are also extremely important.
Decisions on ethics are for member states and the hon. Gentleman mentioned a particular issue. There is no EU locus. In fact, the treaty article on health protects ethical issues. I hope that is helpful, although I suspect that my right hon. Friend the Member for Liverpool, Wavertree, who did a lot of work on this subject in her time as a Health Minister, is far better qualified to speak. That is the broad basis of how we see the areas touched here. Essentially, that is something for member states.
The Chairman: If no more members wish to ask questions, we now proceed to the debate on the motion.
Motion made, and Question proposed,
That the Committee takes note of European Union Document No. SEC(06) 1195/4, Commission Communication: Consultation on Community Action on Health Services; notes that this document concerns itself primarily with the need for the development of legal certainty in the field of cross-border healthcare; notes that this need arises from case law developed in the European Court of Justice that currently applies to the UK and which contains unhelpful areas of ambiguity; further notes that the rest of the Communication looks broadly at non-regulatory areas where co-operation at a European level may add value to Member states’ efforts in the field of healthcare; and therefore supports the Government’s position that the UK should pro-actively engage in this area in order to achieve the maximum influence over the shape of the debate and any subsequent proposals.—[Ms Rosie Winterton.]
5.48 pm
Mr. O'Brien: In the light of the extended question session, we can be mercifully brief.
I hope that the Committee feels as I do when faced with a European Standing Committee process on a document that always appears very dry, and with other difficult documents to delve into. What the House is doing in the name of democratic accountability is important, particularly when the document is passported from the European Commission, which is looking to consultation so that it can come to a result. However, and most importantly, the document also relates to a creature that we equally are responsible for setting up and that affects the sovereignty of the House and its Members’ privileges. That creature is the European Court of Justice. As fundamental believers in the rule of law, the judgments of that court cannot simply and lightly be dismissed. Any responsible Government, as this one have shown, must therefore deal with the consequences of a totally legitimate body of justiciability.
I have read the documents and raised questions, but in a less ordered and logical way than I had hoped, because of the need to keep to one question at a time—an interesting process. Part of the debate is recognising that the national interest is unquestionably better served by seeking a consensual voice from Parliament to back the UK’s ministerial negotiations. Therefore, I will not vote against the motion, which anyway, as was pointed out earlier, is only to take note. However, what we need to do is to send the Minister off with our anxieties, our questions and our concerns, but above all, some backbone. It is vital that she succeeds in the areas that have been defined, and ensures that there is no impact, nor any implication over time, for the natural consequences, even in the minds of some elsewhere, and even if they are unintended on this side of the channel. We must be absolutely clear that those concerns are understood and regarded as potential deal-breakers, given that everybody has to deal with the ECJ ruling.
I hope that the more general promises expressed during the debate will ensure that the general principles, in addition to those enunciated by the Minister in her opening remarks—which I felt were wholly appropriate and started with the principle of proportionality and sustainability—become absolutely fundamental to the negotiation. If she finds that in the process of keeping the House fully apprised and updated, through Library notes, written ministerial statements or, I hope, even an oral statement to the House, she finds that she needs more backbone, she should turn to the House to get it. There is willingness in this Parliament to protect its rights and privileges, and we want to see the Minister succeed. She has our blessing—for what it is worth—on the basis that a consensual Parliament in which our concerns are well noted and well recorded is better than a fractious one.
5.53 pm
Dr. Pugh: Following that benediction, I wish to point out that only 1 per cent. of people use the services of another nation state within the EU. However, that number is undoubtedly going to grow significantly, so it is important that we have rules and regulations that are proportionate to facilitate necessary and desirable co-operation. I do not think that anybody can be against that. There is the promise of things that we have not talked about: telemedicine, which is mentioned in the document; pooling research, which can only be a good thing; sharing talent; and helping people to travel and work abroad. All those things are entirely desirable.
5.54 pm
Ms Winterton: I shall be brief because I want just to thank all hon. and right hon. Members for the questions that they have asked in this debate. It has been extremely helpful not only in highlighting the impertinence of the Commission’s proposals but in sending a clear message. I am grateful to all right hon. and hon. Members, including Opposition Members, for supporting the motion. As the hon. Members for Eddisbury and for Southport have agreed, political consensus on the matter is important. It is particularly important for engaging the interests of other member states.
We were successful in removing health from the services directive. Although it involved some hefty negotiations, they were successful, and we are pleased about that. It is important to clear up such matters, which are ambiguous at the moment. We have a proper process for considering them and for ensuring in future that we can continue to plan properly and control our national health service, which is particularly loved by the people of this country. My backbone is stiff now. I shall disappear over the horizon and, I hope, come back successfully with a clear message from this Parliament.
Question put and agreed to.
That the Committee takes note of European Union Document No. SEC(06) 1195/4, Commission Communication: Consultation on Community Action on Health Services; notes that this document concerns itself primarily with the need for the development of legal certainty in the field of cross-border healthcare; notes that this need arises from case law developed in the European Court of Justice that currently applies to the UK and which contains unhelpful areas of ambiguity; further notes that the rest of the Communication looks broadly at non-regulatory areas where co-operation at a European level may add value to Member states’ efforts in the field of healthcare; and therefore supports the Government’s position that the UK should pro-actively engage in this area in order to achieve the maximum influence over the shape of the debate and any subsequent proposals.
Committee rose at four minutes to Six o’clock.

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