Cross-Border Health Care
Dawn Primarolo: It is important that the Commission has recognised that standards for health care should be set and should be the highest standards. It is for member states to do that for their own health care systems, and this Government have done brilliantly.
Mr. Cash: Now that the Minister has answered question No. 1, I would like to refer to question No. 12:
What are the implications of the draft Directive for private insurance schemes and private providers?
Dawn Primarolo: We are trying to tease out whether we understand the extent to which other creative mechanisms might emerge for selling private insurance products that would cut across the principles of the NHS. I am sure that every member of the Committee would expect us to regulate this area to protect the NHS. That is the reason for posing the question. The answer may come back that that will not happen, but we are posing it as an open question.
Mr. OBrien: While we are discussing the impact of the directive on private sector providers and insurers, and recognising that even if it is limited to the publicly funded side, there is the question of whether it will open up the treaty to Court challenges by the private sector. Will the directive impact on the network-only agreements held by private sector insurers? That is something with which we are familiar in relation to the private health sector in this country. I am referring to, for instance, the limited choice of hospitals that can be used against a particular set of insurances. Will we see NHS patients taking their NHS entitlement to UK private hospitals?
Dawn Primarolo: The hon. Gentlemans first question about patients right to choice in England is clearly delineated, and nothing changes as a result of the proposals in the draft directive. With regard to what the private insurance market might do, I have to be perfectly honest and say to him that that is why we are asking the questionwe need to have some indication on that, because it may be relevant to our negotiating position. At this point, without having the type of information that I need from the consultation, I am not able to answer the question in detail, but I am happy to keep the hon. Gentleman informed.
Mr. OBrien: On the same subjectin effect, it is the second part of the questioneven if we put to one side the insurance aspect, which I accept the Minister will come back to me on, does she envisage that NHS patients will, under the directive, be able to take their NHS entitlement to UK private hospitals? She will accept that that would strike at the very heart of the values of the NHS, on which we are all agreed.
Dawn Primarolo: No, because the directive is not about giving new rights to anyone, including NHS patients.
Mr. Syms: So if someone wanted dental care, that would be included in the scope of the measure, because dental care is provided by the national health service. Will there be a different definition between member states? For example, some member states may not provide that type of service. Another issue is elective surgery that would be provided by a state health service. That could be done within the UK.
Dawn Primarolo: That shows the importance of article 8 being clear. As we have explained, the measure covers hospital care and specialist care treatment that is costly. Part of the discussion on the directive is to ensure that that is clear, because the Court has already limited what people are entitled to. It is not a complete entitlement across everything that we would provide in the NHS; it concerns specific things. That is what the discussion is about and what we need to clarify, hence the questions in the consultation document.
Sandra Gidley: I have had only limited time to examine some of the detail, but I think that I am right in saying that the prior authorisation scheme should not constitute a means of arbitrary discrimination, and information about the authorisation process should be made public. Can the Minister clarify whether these are anonymised and aggregated data, or whether individual decisions will be made public? I am not clear on that.
Dawn Primarolo: I do not think that it would be about releasing confidential patient information. By its very nature, each prior authorisation will be done on a case-by-case basis, because it requires the clinician to identify the clinical need and then to determine the treatment. We have already seen that with 550 patients in the past 12 months. We would want to ensure that nothing breached patient confidentiality. That raises issues that we have already discussed. For example, when a patient wants to be treated elsewhere, they will have to give us their explicit consent to send the information.
Mr. Cash: On the confidentiality of the consultation process, can the Minister explain the following statement in the consultation document?
If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances.
In relation to personal data, it says that
in most circumstances this will mean that your personal data will not be disclosed to third parties.
Can the Minister explain why the matter has been dealt with in that way?
Dawn Primarolo: It is because there are circumstances in which people are pursuing such a small quantity of datawe have already experienced this in the health servicethat there is a danger of identification. What we are doing hereI really appreciate help from hon. Membersis ensuring that we comply with the case law without conferring any extra rights or breaching any points of confidentiality. That is how I am trying to proceed.
Mr. O'Brien: Let me focus on prior authorisation, which has been covered a tiny bit so far. During our last debate on the subject the right hon. Member for Doncaster, Central (Ms Winterton), then a Health Minister, said:
We want to achieve a position...whereby the PCT would be forced to grant an individuals request for treatment abroad only if an NHS clinician considered that there was an undue delay. [Official Report, European Standing Committee, 16 January 2007; c. 8.]
Mr. O'Brien: In that case, can the Minister answer this question? The right hon. Member for Doncaster, Central said that
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,
and she added that
We disagree with that profoundly.[Official Report, European Standing Committee, 16 January 2007; c. 14.]
Has that had any impact on the draft directive?
Dawn Primarolo: Yes, because the section in article 6 provides very helpful language which makes it clear that the NHS referral system is protected. By that, I mean that the health professional determines the clinical need of a patient and then decides on the treatment for that individual. That is the gatekeeper mechanism that triggers whether or not the treatment is paid for and at what tariff.
Mr. O'Brien: Given that the Government are seeking to protect the principle of prior authorisation in every case, can the Minister tell us the likelihood of that being accepted universally and say whether other member states have said that they support the UK in that stance in the negotiations?
Dawn Primarolo: These are very early days in the discussion, but I assure the hon. Gentleman that in our discussions with other member states, there are two principles that they are determined to protect: that member states determine their own health systems; and that member states, through prior authorisation, determine what would happen outside their health system if a patient triggered the rights set out in the legal judgments.
Mr. O'Brien: To pursue that line, I am sure we will all be looking for an assurance from the Government about what the directive will do or not do in terms of seriously undermining the finances of our health service and access to it. Does the Minister agree that, as currently drafted, the draft directivethis is presumably supported by the judicial history of the measureseems to allow prior authorisation only where
the consequent outflow of patients...seriously undermines...the financial balance of the...social security system and/or
the maintenance of a balanced medical and hospital service open to all, or the maintenance of treatment capacity.
Does the Minister agree that the directive will prevent the Government applying prior authorisation in every case?
Dawn Primarolo: No, I do not, because the key issue will be eligibility. Given the slightly different health systems and how they are funded across the European Union, it is not surprising that the way in which each member state will want prior authorisation to operate might vary slightly. As far as I am concerned, the pressure will be to make sure that whatever is agreed does not undermine what we consider to be the gatekeeper role of a health professional determining how someone gets treatment in the health service.
Mr. Cash: Will the Minister elaborate on a matter that obviously concerns the Government too? There is a requirement for patients to pay the costs of treatment in the EU up front and then seek reimbursement up to the level the NHS would have paid if the patient had been treated at home. Recognising that many people will not be able to afford that, they must have given a lot of thought to the matter. Will the Minister elaborate on the difficulties of many people having enormously expensive treatment, which could arise in another member state, and simply not having the money to pay up front? What are they supposed to do and how is the directive going to help them?
Dawn Primarolo: I agree with the hon. Gentleman. That is an important point that needs further consideration and exploration. It is also dependent on the scale and on what is finally agreed. However, I freely acknowledge that that is one of the matters that remain on the table for consideration in relation to how the measure will operate in a fair and equitable fashion.
Mr. Syms: On that point, how would the system work in practice? Would it be dealt with by individual primary care trusts or hospitals, or would it be done centrally via the national health service? Clearly, as we have heard in the questions, this is a complex area and there might be hundreds or thousands of people who want to reclaim their costs. Is it practical to do that at the lowest level, or should it be done centrally?
Dawn Primarolo: I do not believe there will be hundreds or thousands or hundreds of thousands of people seeking to use the measure; everything suggests that it will happen on a small scale. At the moment, the view is that that aspect of the measure should be dealt with at PCT level. We will need to keep that under consideration at the same time as looking at the implications of the final draft text before agreement. The hon. Gentleman is
Mr. O'Brien: While we are talking about migration, I accept that we probably will need to have the numbers that the measure will affect. At the moment we have the Ministers assurance, which I fully accept at face value, that this will affect a small number of people, but what impact will the directive have on British residents abroad? The Minister will be aware of the recent attempt of the French Government to withdraw health support from our citizens. Is the directive likely to offer them more concrete protection, given the difficulties recently experienced?
Dawn Primarolo: The hon. Gentleman is right. This is not connected with his point about what the French Government might have done in terms of entitlement to treatment, but there areI believe we give the figure in the partial impact assessment1.8 million Britons who live in other member states, either permanently or temporarily. We need to be clear about exactly how many are involved, so that has been laid out. However, not all of those people may be eligible for NHS services and therefore for reimbursement. There is a qualification requirement for ones entitlement to NHS services and that is not changed by the directive. Part of the consultation and attempt to get the information is about understanding the scale of that. It is possible that some people who have not been able to claim reimbursement will now be entitled to it. It might be that they do not have to return to the UK for treatment, as it will be paid for where they are at the UK rate. Working out the cost to the NHS could be complicated.
Mr. Syms: What happens in the case of someone with dual nationality? Suppose someone has a UK passport and a Polish passportpresumably they would seek the full sum from the country in which they are resident. For example, could someone resident in London who had a Polish passport still claim back from the NHS if they were treated in Poland?
Dawn Primarolo: I do not think that that question is relevant. I will go back and check it and I will explain why. The draft directive talks about an insured person and imports that concept from regulation 1408/71. Therefore, there is no further entitlement to that which already exists. We can dream up complicated scenarios, but it does not mean that they are relevant. I will look at the point again but I refer the hon. Gentleman to that regulation. It is important that the draft directive imports that definition of insured person because it is already operating.
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