The
Chairman: I call Mr. Stephen
O’Brien.
The
Chairman: Sorry, I was engrossed there—the question
is a motion related to cross-border health care. I call Mr.
Stephen
O’Brien. 5.43
pm
Mr.
O'Brien: I cannot tell you how much you have made my day
by saying that you were engrossed, Mr. Martlew, because I
got the slight impression that one or two hon. Members had glazed over
during my questioning.
I am glad that
we have the opportunity to debate the directive, which is much needed
and far-reaching. I have acknowledged that the Minister is concerned
that it is perhaps a touch premature because of the consultation
timetable. However, when the time comes, and depending on the outcome
of the negotiations, the directive may well merit more substantive
debate on the Floor of the House, if members of the European Scrutiny
Committee who are present today agree. It concerns the health of many
of our constituents, as well as health procedures that take place in
our constituencies on people who are not residents of this country. I
am sure that the European Scrutiny Committee is well aware of
that.
As the
partial impact assessment puts it, European Court of Justice judgments
in the last decade have established the right of cross-border health
care under article 49 of the treaty, leading to this attempt at
codification by the Commission. We are bound by that law under treaty,
and the directive must fall within those bounds. We know that it covers
the common principles in all EU member health care systems including
monitoring, complaints, indemnity insurance and patient privacy, as
well as protecting the legislative supremacy of the legislation of the
“sending” state. It also covers the use of health care in
another member state, looking at the pragmatic issues that arise from
entitlement, reimbursement, and authorisation and co-operation on
health care in prescriptions, e-health, specialist research and
treatment, technology and data sharing.
My
colleagues, both here and in the European Parliament, have welcomed the
directive. I think that I am right in saying that the only groups that
have opposed it are the communists and the greens. We welcome it,
despite the fact that we do not yet have the clarity that it would be
helpful to have, but as I said, we understand the timing problems. It
is an opportunity to provide clarification for UK patients, and for UK
providers. There are a lot of questions, sometimes very difficult ones,
that need to be asked. We certainly need to think through the questions
of implementation in a pragmatic and detailed way, and I hope that I
have indicated a number of issues that the Government will find helpful
in their considerations.
Last time we
debated this issue, the then Health Minister, the right hon. Member for
Doncaster, Central, speaking for the Government, went as far as to call
the Commission’s proposals “impertinent”. I am
glad to note that the Minister has rowed back from that position. She
will be aware that when the Committee last discussed this, on 16
January 2007, my former neighbouring MP, the late Gwyneth Dunwoody, who
was then the hon. Member for Crewe and Nantwich, was typically strident
in her forensic examination of the Minister and that
policy.
I hope that
in the spirit of parliamentary scrutiny, hon. Member on both sides of
the House will support the amendment. Leaving aside the fact
that—perhaps I am being rather anorakish, but none the less it
still offends—there is a split infinitive in the motion, I have
never read a motion so banal in content and meaning. I hope, therefore,
that we can give the Minister a stronger negotiating position by
adopting the amendment, as we must make it clear what we, as a House,
expect from this
directive. As
the Conservatives are aware, it is outcomes that matter to patients, as
they are much more relevant than a barrow-load of centrally imposed
targets. It is telling
that the documents under discussion refer to the wide range of outcome
performance across Europe. There are serious issues about some of the
areas in which the UK languishes at the bottom of the European league
tables, including five-year cancer survival rates. Furthermore, it is
important in this area of domestic policy—namely, our
NHS—which is rightly close to the hearts of British people, that
the Government make it clear in negotiations with the Commission that
any action taken under the directive must benefit our NHS, and UK
patients’ experience, and the opportunities afforded by the
directive for doing so should be embraced. I hope, therefore, that the
statement in the motion that “the UK should
continue to pro-actively engage in this area in order to achieve the
maximum influence over the shape of the debate and final
Directive” will
be seen to be somewhat banal, and that the amendment’s proposal
that the
UK “engage
pro-actively in this area, and seek to achieve the maximum influence
over the debate and final Directive to secure better health outcomes
first for UK patients and for patients from other member States,
through the capacity and competition such a move
offers” will
be regarded as a useful spur and support for the Government in their
negotiations.
We have
agreed that the directive is necessary in light of the judgments, and
it provides a good opportunity. The questions that have been asked by
all the Opposition parties have identified the fact that we are looking
at a time frame that probably strings this out to late 2009 and perhaps
2010, depending on how things go, and that we might expect it to be
implemented by secondary, rather than primary, legislation, depending
on how expectations are met.
We have had
assurances from the Minister on a number of important issues. I hope
that she accepts that we have not “got in a lather”, to
use her phrase. We must be careful not to get excited about what is
known rather too colloquially as “health tourism”, and it
is important to recognise and keep in proportion the number of people
travelling for health reasons. As she rightly set out, particularly in
areas close to countries with alternative health service provision,
that is a fairly rare phenomenon compared with the overall number of
treatments in the NHS. However, the directive must ensure that that
situation is maintained and that the numbers travelling for health
reasons are not
augmented. The
Minister gave a helpful answer to the question about prior
authorisation, about which I was particularly concerned. However, there
is a danger, given the language in the documentation, that through the
prior authorisation process we will be unable to maintain what should
be explicit in the documents—patient choice. I hope, therefore,
that her very firm answers will help to amend that wording to something
a little more felicitous to emphasise patient
choice. Significant
questions remain to be addressed about the impact on private sector
providers and insurers. The Minister has undertaken to look at the
latter point in particular, which will surface during the course of
negotiations. I hope, therefore, that she will undertake to ensure that
the Committee and the European Scrutiny Committee are given a full
report. It is not as yet clear whether the directive applies explicitly
to private medical
insurance as a funder of health care, and neither is it clear whether it
challenges network-only agreements, which was a point that I raised
before. We must
recognise that the General Medical Council—another regulator in
this area—has flagged up questions about the directive’s
impact on regulation, stating that the directive must provide for the
patient’s right to effective medical regulation, which is
something that this House discussed extensively during the recent
passage of the Health and Social Care Act 2008. The GMC rejects
the
“setting of
professional standards at European
level”. fearing
the
“application of
lowest common denominator
standards”. Instead,
it calls for the directive to introduce a legal duty on national and
regional regulatory authorities to reactively and proactively exchange
registration and disciplinary information, but naturally without
imposing any disproportionate administrative burdens on medical
regulators. The GMC also flagged up questions about liability—a
point raised by the hon. Member for Romsey—in its case for
regulation, but the directive poses wider questions about who picks up
the blame, the cost of rectification. and the cost of any legal
settlement when things go wrong.
We have
discussed prescription and devolution, which the Minister has taken on
board, and I am delighted that she thinks that I have delved into the
issue in sufficient detail to raise something about which I know she is
concerned—the electromagnetic fields directive. I am also
concerned about the directive’s impact on health inequalities,
which we did not cover in questions. I would be very surprised if she
was not equally anxious about that—Members on both sides of the
House are likely to be exercised by it if, during the course of this
process, issues about health inequalities are not
resolved. We
look forward to the Minister’s response. I hope that the wording
that we have proposed in the amendment will find favour with the
Committee. Technically I have yet to move the amendment, but should the
Government not be persuaded, we might wish to force it to a Division.
However, I am sure that I am joined by Members on both sides of the
Committee in wishing the Minister well in the negotiations. She seeks
to improve and secure what is an important step forward in health
policy. Although the directive is intended simply to implement and
codify what is already in law, we would not be here unless there was a
belief that considerable clarity needs to be imposed. We must ensure
that our work and, in particular, the Minister’s work does not
produce a further raft of case law, because that is not the easiest way
to make law in this field. I hope that the Minister will accept our
support in the spirit in which it is given, and that she will find our
amendment helpful in reinforcing her negotiating
position. 5.55
pm
Sandra
Gidley: I thank the Minister for her robust and direct
answers to many of our questions. I do not remember hearing quite so
many answers with a straight yes or no, which is a refreshing
change.
It is a pity
that we are discussing the matter before the consultation has finished,
as we cannot see the results. I agree with the hon. Member for Derby,
North, that we may have jumped the gun. The debate is important, but
its timing could have been more effective. I do not wish to detain the
Committee, as many of our questions have been answered. However, there
is widespread concern about equity of access, as those who are less
well off will be disadvantaged. It is not clear whether people will
have to pay up front and then claim the money back, nor whether they
will be fully aware of the top-up fees that may be required. Members on
both sides of the House are always wary of introducing measures that
could reduce equity of access to treatment. However, I was glad that
the Minister confirmed our concerns should aftercare go wrong, and what
should happen with redress. I want to
pick on the point that was raised about the regulation of health
professionals. Regulation differs among member states, and rightly so.
However, I am not sure who is responsible for giving patients
information about what can be expected. Is it the country that
commissions the treatment and sends the patient abroad? Do GPs have
responsibility for ensuring that their patients are informed, or does
the state giving the treatment have responsibility? There are questions
about the standard of that information.
The cost
implications are difficult to tease out. The Minister said that people
are happy with the NHS. I agree with her—the evidence shows that
many people want to stay with the NHS—but it is less clear how
many people from other countries admire our system, despite the press
doing their damnedest to do it down, and want access to treatment in
this country. Again, we must ensure that those people are not given
priority over our own patients. That concern will be raised by the
public, too. There are mechanisms for saying no and refusing treatment,
but it is not clear how robust they are or how they might stand up to
challenges in court, although I accept that the directive is trying to
deal with
that. I
was pleased to hear the Minister’s robust assertion that
standards are to be set in particular countries. I hope that that
position will be defended vigorously. Whenever I have spoken about the
matter, there has been concern, perhaps misplaced, that the move
towards a Europe-wide health care system may be the thin end of the
wedge. There are many problems with that. The Minister has been robust
in her denial, but she will be aware of those concerns. There are
concerns, too, about the definition of hospital care. I am not entirely
convinced that it should be kept it in the hands of Commissioners.
Again, much of the interstate variation needs to be teased
out.
I wish to
speak briefly about prescriptions—I am having one of my nerdy
moments—and given my background, I should declare an interest.
From 3 November, pharmacies in the UK will for the first time be able
to dispense prescriptions from other states. They will be treated as
private prescriptions, which is fine, but there are some questions over
the matter. When I was practising as a pharmacist, I had to be aware of
the prescriber—they had to be known to us or they had to confirm
their status if they were not known. Although a database can now be
accessed online at euregister.org, some people are concerned about what
happens from a professional point of view if a prescription is
dispensed in good faith and problems arise. There are problems with
brand names being different in different countries, because the
existing rules do not allow the substitution of a different
brand, even if it is the same product made by the same manufacturer. It
might be helpful to move towards a common template, because there are
different requirements for prescriptions in different countries. I do
not think that that issue has really been tackled, but I was pleased to
hear that patients would be reimbursed. There could be a problem if a
foreign prescriber prescribes a drug that is not available in a branded
form in this country, which could have implications for the
continuation of patient care. There has to
be some data sharing, because we would not want a patient to access
health care without the people who provide it being fully aware of
their medical history. By the same token, it is important that the GP
and any hospital consultants in this country receive information about
what exactly has been provided. However, we are not in any state to do
that using the NHS IT system. Many of the witnesses giving evidence to
the Health Committee said that even with a UK-wide NHS IT system it was
difficult to achieve scale, functionality and high security. If there
is to be further data sharing at a European level, those concerns will
be magnified, and that could be a huge problem.
As the hon.
Member for Stone is here, I hesitate to praise the French, but they
have a system whereby the individual has half the key to their health
records, and it is available over the internet. That might not sound
secure, but it gives the patient control over their data. That
arrangement might be worth looking at. Finally, I urge the Minister to
accept the amendment tabled by the hon. Member for Eddisbury, because
it would tighten and strengthen her position. I therefore hope that she
will look at
it. 6.3
pm
Mr.
Cash: As I have indicated in some of my questions, in
common with many other members of the Scrutiny Committee, and perhaps
even the Minister, I see that a matter of this nature raises delicate
questions on the possibility of a Europe-wide health care system. We
concluded our report by asking whether the Minister considers it
satisfactory to delegate to the Commission authority to legislate on
all of those matters and whether she is satisfied that member states
will have sufficient control over the contents of those measures. That
is why this debate became necessary, despite the reservations expressed
by my colleague on the Scrutiny Committee, the hon. Member for Derby,
North, when he outlined our conclusions.
It is
important to recognise that that Committee was concerned about the
possible intrusion of the proposals, through the aegis of the European
Court of Justice, into our own health care arrangements and our
absorption into a Europe-wide system. That view is reinforced by the
proposal set out in the document for a European Parliament and Council
directive. In the preamble, dated 4 July, paragraph 46 specifically
asserts: “Since
the objectives of this Directive, namely establishing of a general
framework for provision of safe, high quality and efficient
cross-border healthcare in the European Union, cannot be sufficiently
achieved by the Member States and can therefore, by reason of the scale
of the action, be better achieved at Community level, the Community may
adopt measures, in accordance with the principle of subsidiarity as set
out in Article 5 of the
Treaty.” On
that basis, it is perfectly clear in the document presented by the
European Parliament and the Council that they are aiming at an
arrangement that would be Europe-wide. That is their
intention.
Of course, the
next question is: what will be the Government’s response to
that? We have heard some of it, Mr. Martlew, in the
consultation paper and in the answers to the questions that we have had
the opportunity, through your excellent chairmanship, to put to the
Minister today.
Unfortunately,
however, there is also another document, which comes from the European
Commission, that overarching and ever-determined body that aims to
proceed with further and deeper integration at every conceivable
opportunity. That document, entitled “Impact Assessment”,
actually raises some very important questions. Among other things, it
strongly reinforces my concern about the direction in which all of this
is going.
One matter
that has not come out in this debate so far is the extent to which the
people of the member states actually receive treatment in another EU
member state. Now, let me say what the “Impact
Assessment” document specifically states. I am aware that the
Committee may wish to press on, but I am also aware of the fact that it
is important to get one or two things on the
record. In
fact, according to the Eurobarometer survey, only 4 per cent. of
Europeans received medical treatment in another EU member state over
the last 12 months—that is, from 2007 to 2008. So we have here
an extremely complicated and I would say potentially intrusive
proposal, which is supposed to be based on subsidiarity, but where the
European Council and the European Parliament have both proposed
arrangements that admit of further intrusion, and with the prospect of
co-decision, which is a matter that we discussed in great detail with
the United Kingdom representatives in Brussels only a week ago. That
prospect of co-decision will clearly be more and more frequently used
to bypass Westminster and its ability to legislate on its own
terms.
I therefore
think that this is a matter that we ought to be taking extremely
seriously. That is why, when it comes to the vote on this
matter—I am speaking on the assumption that a vote is
called—I would simply like to reserve my position by saying that
I agree with the idea of amending the proposal, but I would not in any
way accept that my voting for it indicates my enthusiasm for the
proposal as a whole. I say that because, in my opinion, this proposal
is leading to a greater degree of harmonisation through the aegis of
the European Court of Justice than has been brought out by the
questions that have been put. I should say that I am delighted that we
have had the opportunity to ask these questions, and in all fairness to
the Minister, she put up a pretty reasonable show in answering them
without having to rely entirely on her advisers.
This is a
complicated area and it involves a lot of cross-cutting between the
member states and the European Union. In particular, I want to refer to
the clause in the document that I have just referred to, the
“Impact Assessment” document produced by the European
Commission, which deals with the issue of subsidiarity. In the past two
days, the European Scrutiny Committee has brought out a highly
contentious and controversial document on subsidiarity. I will not go
down the route of trying to explain it all, except to say that it is my
opinion that subsidiarity carries with it an assumption, which is that
for there be subsidiarity there must also be
centralisation. In a nutshell, that is what I think this process
represents. The European Court of Justice is at the apex of that
methodology. The
great advantage of these Committee sittings is that they give us an
opportunity to place our concerns on the record. In particular, the
European Commission’s document
states: “The
European Court of Justice has interpreted Community rules in a
different way compared to interpretation by national
governments.” As
the Minister rightly pointed out, there are different legal opinions
from all sorts of quarters, and there appears to be a difference of
opinion in certain respects between the Speaker’s counsel and
the legal adviser to our Committee and the Government’s legal
advisers. As the document clearly says, there is a difference between
national Governments. However, the key point is that the reconciliation
in terms of harmonisation as between the member states and the whole of
the legal procedure under these arrangements, and the object of this
exercise, is to deal with the question of what interpretation the
European Court of Justice will put on the measure, which we therefore
have to obey—over my dead body, I have to say—under
section 2 of the European Communities Act
1972. If
the reservations that have been expressed by the Minister and others
are sufficiently important for us to want to protect our own position,
and a directive of this kind goes through and is to override our own
ability to legislate in this country for the sake of the people who
elect us, I will simply add—as I have on a number of occasions
both throughout the proceedings on the Lisbon treaty and in other
debates—that we must retain the right to legislate on our own
account and to require our own judiciary to apply our latest enactment
here at Westminster, because that is what we are elected by our people
to do. That ought not to be controversial, but I can assure you,
Mr. Martlew, that it is not accepted by the Government,
because of their belief that Westminster legislation has to have
continuing subservience to that of the European Union and to the
European Court of Justice.
When we
really come down to it, the question of what manoeuvring room the
Minister has in this matter will be determined not merely by a
consultation process or, indeed, by what is said in this Committee, but
by what is decided by the European Union in its full capacity when it
makes the decision in the Council of Ministers. This Minister may well
wish to object, but I am sure that she will agree with me that this is
not something that she will necessarily be able to resist. She may want
to do so, but there will probably not be a vote. There never is a vote.
What happens is that they enter into an agreement and then Ministers
come back and say, “We did the best we could,” but that
does not mean that it is necessarily in the interests of the people of
this
country. In
the document to which I have referred, there is a section entitled
“Link with the Treaties”. In this Committee and in the
European Scrutiny Committee, it is our job to take seriously documents
of this type. I will truncate my remarks by dealing with one or two
specific questions that arise under this paragraph on page 17. It
states: “As
confirmed by the Court of Justice on several occasions, health services
fall within the scope of the EC Treaty, and in particular art. 49 on
the free movement of services, there being no
need”—
this is what the Court
says— “to
distinguish in that regard between care provided in a hospital
environment and care provided outside such an
environment.” It
goes on to
say: “Article
95 of the Treaty foresees adoption of measures the object of
which”— wait
for
it— “is
the establishment and functioning of the internal
market.” In
other words, there is a direct connection between the Europe-wide
proposal and harmonisation, and the sort of things that are being
discussed under this
directive. The
document
continues: “This
provision would therefore serve as a legal basis for establishing a
general framework for provision of safe, high quality and efficient
health services in the European Union and to ensure free movement of
health services and high...protection of health, whilst fully
respecting the responsibilities of the Member
States” only—I
add that
word— “for
the organisation and delivery of health services and medical
care.” In
other words, it is an open invitation for the European Union to intrude
on our health provision subject to that
proviso.
| 
