Cross-Border Health Care
Mr. O'Brien: I appreciate the Ministers 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 Ministers 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 Governments 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
The points raised by the hon. Gentleman need further exploration. That is why we have issued the consultation documentnot 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
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 processwe 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
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?
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. Gentlemans 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. Ladys 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 liabilitya very good pointother 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.
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 directiveit 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
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 negotiationswe will see whether the same view comes back from the consultationis, 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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