Mr.
O'Brien: I appreciate the Minister’s answer.
Because of the particular stage that we are at in the pre-negotiations,
I accept that some of her answers need to be qualified. Taking note of
the fact that she has predicted that I was going to ask about security,
I am grateful for her answer. We will want to follow the situation very
closely. I dare say that the European Scrutiny Committee will want to
see what emerges in that important
area. I
note the Minister’s point about the partial impact assessment.
On that issue, whether the answer is readily available today or not, I
would like to put this point on the record through a question. The
Government’s explanatory memorandum on the legislation on
page 190 of the bundle states that
“reimbursement
to the patient cannot exceed cost of the treatment had it been received
in the home
system.” The
partial impact assessment says that some groups of patients may face
specific barriers such as language to accessing cross-border health
care and that it might be proportionate to attempt to remove those. Is
that for UK patients or for patients from member states accessing NHS
services? Will the NHS bear the cost and will that be at the trust,
primary care trust or national level? It is probably right to wrap into
that question what happens where the costs are cheaper than the tariff
price.
Dawn
Primarolo: I assure the hon. Gentleman that my concerns
are with UK citizens and access to health services. Ministers in other
member states will have to worry about their citizens. As we flag up in
the partial
impact assessment, there are questions about access, the potential for
inequalities to enter the system, and travel costs. Part of the
discussion must be aimed at ensuring that the NHS and its principles
remain intact and that all patients are treated fairly and equally in
the
UK. The
points raised by the hon. Gentleman need further exploration. That is
why we have issued the consultation document—not because there
is a problem with the draft directive but because we need to be clear
what we are seeking to preserve and to ensure that no inequalities open
up. I do not use this point to avoid giving answers, but we do not have
the data. We are running a consultation to get the data. The hon.
Gentleman is asking legitimate questions, but until I have the results
of the consultation I will be unable to give him a hard-and-fast
answer.
Sandra
Gidley: This is a practical question. I am not sure what
happens when the exchange rate of the pound against the euro changes
dramatically, as it has in recent years. What implications would that
have for budgeting and meeting the costs in another country? Has any
consideration been given to
that?
Dawn
Primarolo: We will certainly consider that, but let us be
clear: all the surveys on the arrangements we have made in the NHS
since 2001 indicate that UK citizens have a high regard for the NHS.
They want to be treated by it and to stay close to home. Even when we
put in place arrangements whereby patients could opt to be treated
elsewhere, such as in pilots and in the arrangements that were made
with a health provider in Belgium in 2004 because patients had been
waiting for longer than we would have liked, patients did not avail
themselves of that service. They chose to stay close to home and not to
leave the
country. We
need not get ourselves into a lather. We must look at the fact that 550
people have used the present system of access. The proposed measure
will give patients no new or different entitlements. We know that the
quality of care is what they
like. Mr.
Robert Syms (Poole) (Con): The draft directive proposes
areas where the EU can add value to health care. Would the Minister
like to say a little about that? For example, it mentions
“recognition of prescriptions”. What do we think that
means?
Dawn
Primarolo: There is an ongoing discussion on that. There
are really two questions being asked. First, would it be sensible of us
to co-operate across the EU where it would be beneficial in advancing
our knowledge in areas such as pandemic influenza? The answer is yes.
On prescriptions, each member state is responsible for ensuring that it
has its own arrangements in place so that patients can have valid
prescriptions from across the EU dispensed. We will consider the
arrangements that we need to put in place to ensure that patients can
reclaim the costs. We will also need to look carefully at the role of
pharmacists and particularly whether they consider a prescription to be
a valid one. There is potential, but article 14 deals with that
European-wide recognition of prescriptions. We need to make sure that
we stay closely within
that.
Mr.
Syms: Let us suppose that there is a cancer drug which the
National Institute for Health and Clinical Excellence has not yet
approved. Someone from Germany
who came to the UK could presumably demand to be prescribed that drug if
they were prescribed it at home. Would someone from the UK who went to
Germany have the right to be prescribed something that could not be
prescribed for them at home if it were available for the German health
service?
Dawn
Primarolo: That comes under the articles on equity and
quality. Article 5 starts with an interesting and good statement, as
the hon. Gentleman can see, but we then go into prior authorisation,
which is in article 7 or 8. We need to be clear that once someone
enters the UK system they are within that system: they are treated in
the same way as everyone else. We must not discriminate and we must not
give them preferential treatment. They are in the health system and
they get what is in the health system.
What about
our citizens who go to another member state? We are insisting, and the
principles state, that the member state determines what the individual
clinical need is. We do that through our gatekeeper process—we
have a clinician who decides on clinical need and treatment. Therefore,
the repayment would be for any treatment that they would have got here
in the UK. We have a double lock to reinforce the NHS system because
health systems are determined nationally, not by the
EU.
Mr.
Syms: So if the EU can add value to health care, will that
be paid for out of its budget? Or, if there was co-operation among
member states, would the national health service subscribe into some
form of joint
working?
Dawn
Primarolo: The draft directive is not about creating a
Europe-wide health care system. It is only about codifying existing
case law and making sure that there is no further case law. Although we
can co-operate in discussions, member states determine their health
care systems. I agree that there is a tension in the treaty, but it is
quite clear that that is for member states to determine. Therefore the
measure is not about opening up the health service and suddenly having
a Europe-wide health service. It is about making sure that the health
service continues on the principles that we determine
nationally.
Mr.
Cash: I am sure that the Minister will understand my
saying that we have heard all this before. The fact is that once that
door is open, the European court has a sort of DNA tendency to expand
the functions by its own decisions in a quasi-judicial and
quasi-political way. I hear what she says. Will she still be in her job
in a few months’ or a few years’ time? Who knows? I can
only say that the proof of the pudding will be in the eating. This is
the opening of a door to that sort of
problem. My
question for the Minister is as follows. Paragraph 50 of
addendum 1
states: “The
United Kingdom Government
agrees”— the
Government have already expressed some initial
views— “that
where a patient goes to another EU country for treatment, he or she
should only be entitled to reimbursement for treatment he or she would
have been entitled to from the
NHS”— this
is the important
bit— “up
to the level which the NHS would have paid for the
treatment.” It
is well known that the NHS is now making arrangements for people to
have private hospital—
The
Chairman: Mr. Cash, questions should be
short.
Mr.
Cash: Will the Minister include in the level of payment to
be provided by the NHS the amount of money that would be provided for
hospital treatments in, for example, the Nuffield or similar private
hospitals?
The
Chairman: It would be helpful if the Minister’s
reply was short.
Dawn
Primarolo: How about no, Mr. Martlew? We are
talking about the NHS, and the tariffs that exist there. We are clear
about that, which is why the principles in the directive are
important.
The hon.
Gentleman’s second point was about the ECJ having no opportunity
to make further case law in that area. That is why it is imperative
that we take part in discussions on the directive; we must ensure that
it does not contain legal uncertainties that could lead to further
challenges. That was acknowledged by the European Scrutiny Committee
and in the papers put forward by the Government, and it is our declared
negotiating position.
Sandra
Gidley: I believe that if something goes wrong, the legal
system that applies is that of country in which the treatment is being
provided, and that the cost of any aftercare would be picked up by the
funding country. In some cases, there may be post-operative
complications resulting in a dispute over whether the blame lies with
the person who performed the operation or those who provided the
aftercare. In such cases, which legal system would apply? How would
such disputes be resolved, and who would pick up the
bill?
Dawn
Primarolo: The hon. Lady has settled on an important
point. It is covered in paragraph (l) of the definitions to article 4,
which we have acknowledged requires further discussion. It talks about
“harm” and “adverse outcomes or injuries”,
but it does not refer to negligence or other such issues. The current
position is that if an individual chooses to be treated in another
member state, it is the state in which they are treated that is liable
should there be any dispute. At this stage in our discussions, the hon.
Lady’s question is important, and it must be understood and
dealt with properly, so that we do not end up with a situation in which
no responsibility is accepted. In the end, however, patients have to be
informed of the risks of going to another member state, and they have
to take the responsibility for that if they decide to exercise that
choice.
Mr.
O'Brien: I shall not pursue the question of
liability—a very good point—other than to say that the
question of applicable law matters deeply. In particular, when looking
at the various laws, the danger of jurisdiction shopping arises from
the cap on liability imposed in certain countries. Not least of the
dangers is the fact that we need to think through the NHS Redress
Act 2006 as the negotiations proceed.
I return the
question of prescriptions, which transmuted into a number of other
points. I shall leave the subject of prior authorisation until later. I
have three related questions on prescriptions. If I may, Mr.
Martlew, I shall put them together.
The
Chairman: One at a
time.
Mr.
O'Brien: I shall ask them one at a time. Given that the
directive seeks to promote interoperability of e-prescriptions, do the
Government intend to link it to the European health IT systems, and do
the NHS IT contracts have the capacity for changed orders that will be
needed to deliver
that?
Dawn
Primarolo: The hon. Gentleman will expect me to say that
any standards leading to interoperability need adequate safeguards, and
we are a very long way from the ability to make those decisions and
take those steps in this debate. However, he will be aware that
infraction proceedings mean that UK legislation has already been
amended with regard to scrips. That is provided for. His question is
not particularly relevant to the principles that we need to nail down
in this draft directive—it is for a much bigger
debate.
Mr.
O'Brien: I take some comfort from that, because it looks
as if there will not be a transfer. Given that European countries have
negotiated different drug prices with drug companies, will patients be
able to pick up prescriptions for drugs that are cost-effective
according to NICE in a country outside the
UK?
Dawn
Primarolo: No. The position is that if a citizen chooses
to be treated in another member state, they will be reimbursed for the
sum that they would be charged, in accordance with the principles that
exist in the UK, not in another member state. We will determine that.
This is not about creating a Europe-wide health system or shopping
around, but codifying existing legal
judgments.
Mr.
O'Brien: I thank the Minister for that answer, which I
accept. By way of a question, which is also in effect a plea, as the
negotiation goes
forward—
The
Chairman: Pleas are not allowed; questions
are.
Mr.
O'Brien: In which case I will ask a question,
Mr. Martlew. What is the comparative security of the drug
supply chain in other member states? Who will bear the liability if
drugs are fakes? Will there be protection against parallel importing
and exporting, given that prescriptions could become powerful
mechanisms for that
practice?
Dawn
Primarolo: The hon. Gentleman will know that the question
of parallel pricing and counterfeit is dealt with by the Medicines and
Healthcare products Regulatory Agency, which is in discussions with
other member states on how to deal with both counterfeiting and
parallel selling. However, that is not a matter for the directive. The
hon. Gentleman is quite right that if the directive went further, it
would be. However, as it does not do so, it is
not.
Mr.
Cash: The Minister is aware that there are a number of
questions in the consultation document that she issued. Of course, that
is part of the process. This might be a convenient moment to pose
question No. 5, to which I am sure she has an immediate
answer: “How
can the NHS ensure that patients coming from other Member States are
treated in a non-discriminatory fashion that protects clinical
prioritisation and does not lead to a detrimental effect on UK
patients?”
Dawn
Primarolo: My view, and our view in the
negotiations—we will see whether the same view comes back from
the consultation—is, first, that it is for the NHS to decide
whether it has capacity constraints, and therefore whether it wants to
accept the referral in the first place. Secondly, should it accept the
referral, the non-UK citizen would not receive preferential treatment,
but would be treated in the same way, with the same priority, as people
in the UK. For instance, if there was an emergency that meant that that
person had to be treated first, that would happen. I would expect the
responses to be clear that it is for the NHS to decide what its
constraints are, whether it accepts the request to treat someone and
how it ensures that they do not get preferential treatment over UK
citizens, which would be
unacceptable.
Sandra
Gidley: Does the Minister have confidence in EU
Commissioners setting standards for health care and, if so, will they
increase or
decrease?
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