Cross-Border Health Care

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The Chairman: I call Mr. Stephen O’Brien.
Mr. O'Brien: Thank you—
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.
“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.
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, 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 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.
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Prepared 22 October 2008