The
Committee consisted of the following
Members:
Chairman:
Mr.
Eric Martlew
Cash,
Mr. William
(Stone)
(Con)
Dowd,
Jim
(Lewisham, West)
(Lab)
Gidley,
Sandra
(Romsey) (LD)
Goodman,
Helen
(Bishop Auckland)
(Lab)
Hodgson,
Mrs. Sharon
(Gateshead, East and Washington, West)
(Lab)
Laxton,
Mr. Bob
(Derby, North)
(Lab)
Moffat,
Anne
(East Lothian)
(Lab)
Mulholland,
Greg
(Leeds, North-West)
(LD)
O'Brien,
Mr. Stephen
(Eddisbury)
(Con)
Primarolo,
Dawn
(Minister of State, Department of
Health)
Syms,
Mr. Robert
(Poole)
(Con)
Twigg,
Derek
(Halton) (Lab)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Adrian Jenner, Committee
Clerk
attended the
Committee
European
Committee C
Tuesday 21
October
2008
[Mr.
Eric Martlew in the
Chair]
Cross-Border Health Care
4.30
pm
The
Chairman: Good afternoon. Does a member of the European
Scrutiny Committee wish to make a brief explanatory statement about the
decision to refer the relevant documents to this
Committee?
Mr.
Bob Laxton (Derby, North) (Lab): I do, Mr.
Martlew. It might be helpfulthen again, it might notif
I take a couple of minutes to explain the background to the documents
and the reasons why the European Scrutiny Committee recommended them
for debate in this
Committee.
Since
1998, the European Court of Justice has consistently ruled that
patients who go to another member state for health care are entitled to
reimbursement of the cost by their home member state if they would have
been entitled to the treatment in their home state. The judgments have,
however, left a good deal of uncertainty, so in 2006 the Commission
held consultations on what actions, if any, might be necessary to
clarify the rights and duties of patients, member states and health
care providers. In the light of the responses, the Commission produced
the documents before the Committee: the first is a communication on the
Commissions proposals for new legislation on cross-border
health care, and the second is a draft directive to give effect to the
proposals.
The
draft directive provides, for example, for patients to be reimbursed,
without prior authorisation, for treatment received in another state
that did not involve an overnight stay in hospital, provided they would
have been entitled to the treatment in their home state. The amount
reimbursed would be limited to what the cost of the care would have
been in the home state. Similarly, the draft directive provides for
reimbursement by the home state of the cost of care in hospital. It
allows the home state to require the patient to obtain prior
authorisation only if an authorisation system can be justified on
specific conditions. The member states in which the care is provided
would have responsibilities for the safety and quality of the care and
for providing the patient with specified information, redress
mechanisms and so
on.
The
Government told the European Scrutiny Committee in July that they
support the draft directive but firmly believe that member states
should have unqualified discretion to operate prior approval systems
for hospital care. They also want clarification of some of the details.
The draft directive is likely to be discussed by the Council of
Ministers in DecemberI stress, in
December.
The
European Scrutiny Committee recommended the documents for debate
because of the importance of and widespread interest in the subject. It
asked the Minister questions about the legal base for the draft
directive, the reasonableness of one of its provisions, and the extent
of the proposed delegation of authority to the Commission to make
implementing legislation.
The Minister responded to those questions in her letter of 9 September.
The European Scrutiny Committee concluded that her answers would
contribute usefully to our debate today, and therefore decided to tag
her letter to the
documents.
That
is the position of the European Scrutiny Committee. For my part, I
think that the Committee jumped the gun. The matter is out for
consultation, and I believe that the European Scrutiny Committee would
perhaps have served its purpose better if it had waited until we were
in a positionMr. Cashto have more detailed
information.
4.34
pm
The
Minister of State, Department of Health (Dawn Primarolo):
Mr. Martlew, I welcome the opportunity to serve under your
chairmanship and to discuss with hon. Members the recently published
proposals from the European Commission for a directive on the
application of patients rights in cross-border health
care.
The draft
directive was issued in July and its main rationale is to codify 10
years of European Court of Justice case law. The case law has
established that patients have, under the freedoms of the single
market, a general entitlement to seek health care in another member
state at the expense of their home state. In addition, the Court has
established that patients are entitled to reimbursement for health care
that their home system provides. The home health system has to pay only
up to the equivalent costs of the treatment in the home health system.
The health system can require patients to ask for permission before
going. Thus far, the Court has held that that can be justified for
services delivered in hospitals. When patients need to ask for
permission, the Court has said that it must be given if the home health
system cannot provide the service in a clinically justified time
frame.
The
Committee will recall that the Watts case made it clear that case law
applies to the national health service. However, its application has
given rise to a number of ambiguities, such as the exact level of the
reimbursement that a patient should receive, or which countrys
legislation should apply when a patient crosses a border. That lack of
clarity is unhelpful for patients, health services and Governments. I
stress, however, that the case law already applies; what we are
discussing already happens.
I am sure
that all members of the Committee will agree that it is important for
patients to know where they stand. It is also important for the
national health service to have clear guidance on its duties and on how
the health system should manage the impact of patient mobility. The
directive gives us the opportunity to clarify patients
entitlements. The Government therefore welcome the directive as a means
of codifying the application of the case law on patients rights
in cross-border health care; and, as we heard, the European Scrutiny
Committee agrees that such clarification would be helpful. In addition,
the Government believe that establishing a framework for how patient
mobility should work through the political process is preferable to the
rules on cross-border health care being further developed through
future ECJ findings and rulings.
Before
discussing the draft directive in detail, I emphasise that we must be
careful not to confuse it with case law or with existing arrangements
under regulation 1408/71, which include the E112 scheme, which provides
a route
for patients to obtain planned health care on other member states,
subject to certain conditions. It also includes the European health
insurance card system, which allows tourists to obtain emergency
treatment. Those schemes are not affected by the draft
directive.
It has been
acknowledged that since the European Scrutiny Committees
discussions in January 2007, the Government have been working to
influence the development of the proposal. The draft directive contains
a number of helpful principles. It acknowledges, first that it is for
member states to run their health services; secondly, that it is for
member states to determine what health care they should fund; and
thirdly, that member states should be required to reimburse treatment
obtained in another member state only up to the level that they would
have paid to treat the patient at home, or the actual cost if lower. It
also includes a helpful recognition that member states can maintain
referral routeswhat we call a gatekeeper functionin
their health systems, such as the NHS requirement that a patient be
assessed by a GP before referral for specialist care.
Those helpful
principles underpin the directive, but that is not to say that the text
does not need amendment. In many cases, our aim is to strengthen and
reinforce existing references to those principles. We also want to
clarify the scope of what is proposed, particularly the
directives suggestion that committees should be established to
develop implementing measures. I want to ensure that the text allows
for the development of patient mobility in a sustainable wayone
that balances patients rights with responsibilities and allows
member states the flexibility to manage their health
services.
We
obviously need to know what the impact of patient mobility will be in
the UK. We recently issued a consultation document to explore the
impact further. We know that the priority for the vast majority of NHS
patients is to receive high-quality health care close to home, and we
remain committed to providing it.
As I said,
the draft directive reflects a number of helpful principles. I believe
that it forms an adequate basis for negotiations, and I am keen for the
UK to continue to play a constructive role in those negotiations.
However, constructive does not mean complacent: we will continue to
push on the unsatisfactory parts of the text to ensure that the final
directive is the best outcome for the
UK.
The
Chairman: We now have until half past 5 for questions to
the Minister. I remind Members that they should be brief and that it is
open to a Member, subject to my discretion, to ask a series of related
questions, one after the
other.
Mr.
Stephen O'Brien (Eddisbury) (Con): May I start by asking
whether the Minister can tell us the time frame for the implementation
of the directive, and whether it will require primary legislation in
the
UK?
Dawn
Primarolo: On the timetable, we are in the early stages of
negotiation, so it is a case of asking, How long is a piece of
string? The timetable to date is that the Health Council will
discuss the matter in December. There could be a First Reading in the
European Parliament before it breaks for the European elections next
year. I presume that the negotiations will pick up again after the
European Parliament has resumed and commissioners
have been appointed and portfolios given out. I am afraid that I cannot
give the hon. Gentleman a specific time
frame.
Mr.
O'Brien: I also asked whether there was an expectation
that primary legislation would be required when the matter returns
here.
Dawn
Primarolo: I beg your pardon, Mr.
MartlewI forgot to answer that question. Because we are already
complying with the measures, and the fact that in the directive we are
simply seeking to ensure that we have to comply with case law and no
more, should any changes to our legislation be necessary, it will be
done by secondary legislation. It is not definite that we will need to
do thatit depends on the
outcome.
Mr.
William Cash (Stone) (Con): Would the Minister be good
enough to elucidate on the role of the European Court of Justice in
this matter? When the Court makes a decision, all member states are
obliged to give effect to it under sections 2 and 3 of the European
Communities Act 1972. Is the Minister satisfied that that should apply
to the proposals, given that so much public money is involved and that
there could be a significant change in the amount of money that we have
to spend on health care as a result of people who make use of the
provisions in the UK health
service?
Dawn
Primarolo: As the hon. Gentleman will knowhe
follows these debates very closelyduring the hearings, the UK
representation was that the right to obtain services should not apply
in these circumstances. As I explained in my opening remarks, the
European Court has made a ruling under article 49. To be frankI
think that he will take the same viewit is appropriate that we
have a directive that codifies the present position but does not
provide for any other legal interpretation or intervention. That is
what we are seeking to achieve in the
negotiations.
Sandra
Gidley (Romsey) (LD): Unusually, we find ourselves
discussing a health provision that does not apply to England only. In
the matter of costings, it seems relatively clear that in England there
is a tariff for most hospital-based procedures. That is not the system
in Wales or, I think, in Scotlandthere are different systems in
different UK countries. What mechanisms will be available to ensure
parity and to help those countries where costings are not so
clear?
Dawn
Primarolo: The hon. Lady is right in saying that this
would be a UK-wide directive. It is therefore very important that I
work closely with the Scottish Parliament, the Welsh Assembly and the
representatives in Northern Ireland. To that end, the consultation
document and the partial impact assessment seek to draw on the likely
effect on UK health systems. What I do not have to hand but would be
happy to send to the hon. Lady is the advice that has already been
provided to the health service in England and the devolved
Administrations on how to handle a request under current case law. I am
not sure whether that covers the hon. Ladys point about a
unified tariff. I also remind her that the impact assessment shows that
in the last year in England, approximately 550 patients underwent the
treatment in another member state
route.
Mr.
O'Brien: While we are discussing costs, perhaps the
Minister can give us some indication of the cost of the proposal to the
Commission and to the UK Government. It would also be helpful to know
the likely cost of the data collection. Will the burden fall locally or
centrally? Paragraph 60 of the consultation flags up that question.
Perhaps I can then broach another issue related to costs in another
question about partial impact
assessments.
Dawn
Primarolo: I am sure that the hon. Gentleman appreciates
that the consultation is being conducted because of the lack of data in
England and the devolved Administrations on the number of patients
currently trying to access treatment. In the past 12 months,
550 patients have done so. Part of the consultation document
seeks to find out whether there are any more patients who have not come
to light, and to then start putting a cost on the practice. Hence, we
have a partial impact assessment at this stage. Until we have the
results of the consultation process, which will inform our
calculations, it is very difficult to answer the hon.
Gentlemans detailed questions and to say exactly what would be
in the draft directive, which is a little further down the route. On
the present scale of activity, those matters are dealt with in primary
care.
The hon.
Gentlemans point about data collection and further data
collection is important. I have no doubt that he will want to discuss
security of patients dataI certainly want to. The
answer to his question will depend on what the final regime looks like
and what has been negotiated in the draft directive. Clearly, the hon.
Gentleman would expect me to ensure minimum costs and burdens on the
NHS and no breaches of patient confidentiality. Patients would have to
give consent for their data to be transmitted before they left the
UK.