Examination of Witnesses (Questions 1-19)
Ms Rosie Winterton MP, Mr Jonathan Mogford and Mr
Simon Burke
25 JANUARY 2007
Q1 Chairman: Welcome, Minister, once again. We are very
grateful to you for offering to come to talk to us about the subject
of the Commissioner's Consultation on Community action on health
services which is clearly an important subject and very much in
our remit. It has wide ranging policy implications both EU-wide
and for the UK and we also understand that some of the legal issues
are fairly complicated. Any briefing you give us today is going
to be very useful as we carry out our scrutiny in this area. I
wrote to you on 15 January and suggested that you might make an
opening statement setting the scene for us and then we will open
up to questions from members of the Committee. I hope that is
a format which suits you as well. I am also happy to welcome Mr
Mogford and Mr Burke and perhaps they will join in as seems suitable
to you and to them. I have to make the usual housekeeping points.
We have an hour for this session. The session is open to the public
and will be recorded for possible broadcasting or web casting.
A verbatim transcript will be taken of the session and this will
be printed on the Parliamentary website and if we do any report
it will of course be part of the report. A few days after this
meeting you will be sent that transcript to check for accuracy.
If you have corrections you wish to make that is absolutely fine
but please make them as soon as possible so that we can put it
out to other people. If we find at the end of our session that
there are still subjects we have not discussed or things that
you wish you had said and did not say or whatever it may be, supplementary
evidence is always very, very welcome from our witnesses and that
is the same for you as anybody else. Once again, the acoustic
in this room is very poor; we have just been talking about it
before you arrived. Your voice is very clear, Minister, so I am
sure you will get across, but if you do not speak clearly we tend
not to hear what is being said. I am now going to ask you, Minister,
to get us going on this meeting.
Ms Winterton: Thank you very much indeed for
the opportunity to come here today. For the record I should re-introduce
Jonathan Mogford who is Head of European Affairs in the Department
of Health and Simon Burke who is the government lawyer working
on this issue. As I say, we do think this is a very important
consultation on health services and European Union action. I think
it might be helpful if I dealt with a little bit of the background
because I know one of the issues you particularly want to cover
is the current legal situation that might be covered by the Commission's
proposals. I am sure you are all aware that health services were
taken out of the Services Directive and we were, as a government,
extremely keen that that should happen because of the implications
that might have for our National Health Service. The current legal
situation is that we have a number of principles that have been
developed by the European Court of Justice which are based on
the Treaty articles on the free movement of services, on the rights
of patients to go to another European Union Member State specifically
to seek medical treatment at the expense of their own health system.
These judgments have created some legal uncertainty which is not
helpful. The key judgment for the UK was the Watts case. Mrs Watts
had gone to France to have a hip replacement rather than wait
to have it done on the National Health Service and she is now
claiming back the cost of that operation from the National Health
Service. The decision as to whether Mrs Watts will have her costs
refunded will be decided in the High Court in England, but the
European Court judgment confirmed that the legal principles of
patient mobility that had been developed in previous cases ruled
before the European Court of Justice apply to the NHS as well
as to health care systems based on a system of social insurance.
These principles give National Health Service patients the rights
in certain limited circumstances to go abroad specifically in
order to seek medical treatment at the expense of the National
Health Service. The application of the case law has highlighted
some ambiguities. For example, it is not clear whether Member
States can require a patient seeking non-hospital treatment in
another Member State to seek authorisation from their local health
care fund—ie in the UK this would be the local primary care
trust—before going for treatment. There is also a lack of
clarity over who should take overall responsibility for the safety
and wellbeing of patients who go to another Member State. For
example, there is not clarity over who should take responsibility
for the wellbeing of a person who goes for treatment of their
own accord. Who is responsible for medical complications that
might arise from clinical negligence? Is that the redress system
that would apply in the Member State to which they have gone for
treatment or is it in our case the National Health Service? As
I say, the main driver of the law has been these cases in the
European Court of Justice but what we feel is that it is inappropriate
for that to continue without some political input. This is a view
that is shared by other Member States. What we did in the European
Council of Health Ministers last year was to issue a statement
of values and common principles which I think Committee members
do have. What we were trying to do here was put quite an important
stake in the ground from Member States which we think has helped
shape the tone of the discussion. That set of values and common
principles emphasised that Member States have the responsibility
for managing their own health systems in the manner of their choosing
and that any proposals at European Union level should respect
that fundamental point. The Commission's communication, I think,
is a logical development from everything that has happened so
far. It does set out the areas where there are currently problems
that need to be discussed and debated among the Member States
and of course with wider groups like healthcare professionals,
the European Parliament and patients' groups. We have carried
out consultation on that; we are very keen to protect the UK's
interests in terms of the discussion. A lot of the views that
we have had so far have helped us to frame our response. In terms
of the question that I think you are very interested in which
is how the Commission's proposals might best be framed to address
these problems, we intend to argue that legislative proposals
could be useful provided that they are underpinned by certain
key principles. Perhaps if I could set out some of these principles
it might be helpful. First of all, we think that any legislative
proposals should be proportionate and should not go beyond what
is actually needed to resolve the specific problems that we currently
have and we think it should provide a sustainable way of managing
the issue of patient mobility. We believe that Member States'
referral processes must be respected so where in the UK, in order
to access a service, a referral is required from a GP, we believe
that patients should need a similar referral from a British GP
to access a service in another European Union Member State. We
believe that determining what treatment is offered to individual
patients is a matter for Member States to decide. If a person
wishes to go to another Member State it would have to be for treatment
that was available within the Member State and not necessarily
for treatment that might be available elsewhere but was not available
within the UK. Within that we also believe that Member States
must be able to restrict the level of payment for treatment abroad
to the cost of what would happen if that treatment was delivered
in the UK. It must be the standard governance and systems of redress
of the Member State where the treatment is carried out that would
apply in terms of, for example, if anything went wrong. Member
States should be able to prioritise their own citizens above citizens
of other Member States who travel to them specifically to receive
medical treatment. We believe that if these were the principles
that legislation were based on, that would ensure that we could
manage patients' mobility in a sensible and sustainable way. We
also intend to say to the Commission that in any proposals it
would be useful to place a duty on regulators to share information
about healthcare professionals who cross borders to work as well
as clarifying that Member States can require health professionals
to be proficient in the language in which they are working. You
are also interested in the legislative proposals that the UK would
not find acceptable. We certainly would not support any legislation
which merely re-stated the existing case law and we would not
find it acceptable to support any proposals that complicated the
current situation if there were an overly detailed legislative
mechanism or any proposals which made it more difficult for Member
States to manage their health system. We would also be very cautious
about any overly ambitious proposals in the field of IT or e-health.
In general we would not support anything which undermined the
rights and responsibilities of Member States with regard to the
organisation of their health systems which derive from the Treaty.
I think you are also interested in whether a framework for non-regulatory
cooperation between Member States could help to support the legal
framework and the kind of issues that that might cover. We do
have a framework for cooperation at the moment, for example the
Commission's High Level Group on Health Services and Medical Care
which does meet regularly to discuss issues of common interest.
For example, there are centres where very rare diseases can be
referred to and that is the kind of cooperation which we think
could genuinely add to the work that is already carried out by
Member States. We also think that frameworks that enable the direct
exchange of best practice and experience between clinicians where
policy experts in different fields or where stakeholder groups
might be able to come together. A lot of good work has gone in
on the area of public health and one area I was particularly interested
in was mental health, again where people were able to share best
practice and patient groups were perhaps able to exchange what
were good patient experiences and so on. That has been useful.
In general that is the approach that we want to take. We had a
very good and helpful debate in the standing committee which I
was glad to say that we got considerable cross party support from
in terms of the stance that we are taking which we do feel is
very useful in strengthening our hand in terms of the discussions
about any possible legislation that might come forward.
Q2 Chairman: Thank you for that opening
which was very comprehensive and very interesting as well. You
have explained very clearly what the position of HMG is but how
are you finding other countries? Are there other Member States
who have very different approaches or do you think that the approach
of this government is rather similar to the approach taken by
other governments, in broad terms obviously?
Ms Winterton: Particularly because of the way
the NHS works, being a tax funded system, we are very interested
in this legislation. It is true to say that not all Member States
would necessarily be as concerned as we are. However, in terms
of signing up to the common values and principles, I think all
Member States have shown that they agree that it is important
for Member States to be able to run their health services and
that has been a very important development for us in terms of
saying that there is consensus around those values and principles
which again has been very helpful in terms of giving an indication
to the Commission as to where Member States are coming from.
Q3 Chairman: This is presumably a
decision which would be taken by QMV if we got to that stage.
Are there sort of camps because of the different ways of financing
and running a health service or has not really appeared yet?
Ms Winterton: No, not really. It is more a level
of interest but in general I do think we have consensus. There
are no Member States really who are saying that they do not agree
with this approach at all.
Q4 Baroness Greengross: I am fascinated
and also questioning whether it is a political or legal decision.
Thinking of some of the other decisions that we have been faced
with here like the SiMAP/Jaeger cases for example, it seems to
me that when you are talking about the rights of an individual
and a court judgment at a European level, this has been over and
above any political decision that can be made. I think there are
really big problems here if one is going to try to override these
because we are not able to override them in other cases. There
is a difference between what is labour law and what is NHS and
so on. I just wondered if you or indeed your lawyer colleague
might clarify for me how one could override the Court of Justice
decision as we are not able to in other cases, and how an informal
agreement could possibly be as binding as those court judgments
are. I just do not understand that. My last point would be that
you said that very rare diseases might justify going to another
country and I have always thought that as we get more and more
to establishing centres of excellence which cannot be in every
city across Europe, there are bound to be cases where the centre
of excellence could be in Brussels or for somebody in Brussels
the centre of excellence could be in London, say, and that that
would automatically, using helicopters or whatever, become much
more routine than it is now. How could we, in the UK running the
health service, argue with that sort of decision politically when
they are legally established rights?
Ms Winterton: I will ask Simon Burke to come
in in a second, but perhaps I could clarify that I do not think
this is about overriding decisions; it is really about recognising
that there are some ambiguities at the moment and in some areas
there are perhaps seen to be contradictions. The Commission has
said in its document that it thinks that the European Court had
said that if you were going for non-hospital treatment you did
not need to get prior authorisation, whereas we do not believe
that that is what the Court said. We just want to establish what
the principles are—that is where, in a sense, the political
input comes in—because if we are not able to do that we
will continue possibly to go along the line of individual cases
being brought and a general policy on which all Member States
basically agree which is that it is important for Member States
to be able to run their health services. The implications if we
do not put that legal certainty around it are that it becomes
very difficult for the health service to operate because it does
not know what it is supposed to be allowing in terms of people
going to other Member States, there is not a referral process,
there is not a process that everybody recognises should be followed.
I think all our health systems need that clarity and it is simply
clarifying the issues around which patient mobility should take
place. I presume in future that might assist the European Court
as well in making some of the judgments. With regard to the point
about cooperation this was something that was raised at the standing
committee about centres of excellence and would our centres of
excellence have to go elsewhere. That is not really what we are
talking about here. I think the example I was searching for at
the standing committee and could not quite remember was something
that we had cooperated on which was Bubble Babies which was a
very, very rare treatment which was almost impossible to provide
at national level and there is somewhere I think in Holland where
there was a centre where there were facilities there, but it was
so, so rare that even at national level it was not possible to
provide that kind of support.
Mr Burke: The case law in this particular area
on what is called patient mobility and the Watts case in particular
in how it affects us, the Court was interpreting article 49 of
the Treaty itself which is the principal article dealing with
free movement of services covering the rights of persons to provide
services and individuals to go and receive services. As it stems
from the Treaty it is different in a sense from SiMAP/Jaeger which
stems from an actual directive (I will touch on that further)
where is there is more flexibility of scope for Member States
to reach agreement. As the Minister has said, there is clearly
ambiguity flowing from these judgments in the sense of how this
works in practice. The aim would be to clarify that ambiguity
but also to apply the case law in a way which protects health
systems. You can derogate from Article 49 rights in order to protect
public health and the Court has recognised that in permitting
Member States to have prior authorisation in respect of hospital
care. It would be trying to reach an agreement in a way which
protects health services and thereby public health which makes
this case law manageable for the UK. You mentioned the SiMAP/Jaeger
case law which was to do with an interpretation of the working
time directive. That is an actual directive but the difficulty
with that one is that several Member States are in agreement that
they want to amend the directive to take into account to make
the SiMAP/Jaeger cases more manageable, the difficulty is in getting
agreement between sufficient Member States. On several occasions
Member States have not been able to reach agreement because whilst
many Member States want to rectify the position as a result of
SiMAP/Jaeger case law they have differences of agreement on other
articles in the Directive such as the opt-out where persons can
opt-out of only working 48 hours per week. Whilst there have been
attempts at horse trading to reach agreement it has not been possible
at this stage.
Q5 Baroness Howarth of Breckland:
I am a great fan of the health service but I want to ask you a
consumer question here, a rather lay question about the impact.
Although we have the values and principles which state that the
overarching values are about universality meaning that no-one
is barred access to healthcare that usually means in the priority
system at the level it can be delivered within the rationing system
of the particular place it is going to, and I suppose looking
at this in the European and legal context my concern is the impact
on the healthcare system from the ordinary consumer point of view?
Does it mean that if you are rich enough and informed enough to
get a diagnosis that gets you to a centre of excellence in Europe
and therefore gets you the treatment and gets you from undue delay
(as in the Watts case) you are going to be able to be reimbursed
from the UK health system which will increase the waiting list
somewhere (because of the finite resources which we all accept
are in the health service) for people who are less able to access
alternative care. The impact on the health service is about the
impact on individuals who are using the health service; the health
service only exists for the individuals not in its own right.
The whole system depends on professionals and managers being able
to prioritise and manage their budgets and it seems to me that
that is the key to this. Of course we would all wish to have universality
and the principles as set out in the common values, but we do
not attain that now, it is aspirational. I wonder how that practical
reality is worked through and the difficulties it would really
cause for our health service and the professionals trying to deliver
an equal service were this to go forward.
Ms Winterton: I think you have absolutely hit
on it there. One of the key principles underlying everything is
that Member States should retain the right to manage their own
health services. The other thing we want to make very clear is
to say that it should be for an individual clinician to determine
that somebody had an undue delay and it should be an NHS clinician
who says there is an undue delay if someone were, in a sense,
exercising their right to go to another Member State for treatment
so that you can preserve the equity in that in terms of that if,
as you have said, there are some people who just think that by
demanding they go elsewhere and that has to be acceded to no matter
what the impact would be elsewhere is not the situation that we
want to see. We believe it should be an NHS clinician who would
make the decision. I think it is also important to remember in
this that in the wider healthcare reforms where people can go
to other parts of the country and as the choice agenda widens
up then there is obviously the ability to see whether that treatment
can be found within the UK in the first place. I should say that
we do expect the numbers involved here, if we get this right,
would be in a sense relatively small. Even in terms of the present,
I think in 2005 there were only something like 250 people who
did go abroad for treatment. We want to be absolutely clear that
we get the framework right so that it does not undermine our health
service and so it as well a fair and transparent system that people
go through and does not, as you quite rightly point out, make
it unfair for other people who may not have the same ability to
say that they want to go elsewhere.
Q6 Chairman: I was on the hospital
board of a hospital right next to Gatwick Airport and we very
frequently have patients literally dumping themselves on us with
a baby just about to arrive. Actually you know pretty well when
your baby is going to arrive and if you arrive at an airport about
to produce a baby you have done that deliberately on the whole.
Then the problem was how to get the money back. Are you thinking
about systems for ensuring that money does flow between the various
healthcare systems because that was a real problem?
Ms Winterton: There are rules about overseas
charging at the moment and NHS care is for people who are ordinarily
resident within the UK. Obviously there is the EHIC (European
Health Insurance Card) which applies if people are on holiday
and so on. In terms of the current paying out from other Member
States we tend to have kind of reciprocal arrangements through
the European Health Insurance Card, although it is always very
clear that people should be aware that what they are going to
be treated for is what happens in that particular country, so
if there is co-payment they still have to pay that part of it,
which is why we always advise people to take out health insurance
as well. Another area is obviously pensioners, for example, in
I think Spain, France and Ireland where we do have a system of
paying the health service there because people have retired there.
I think that is about £600 million a year. The system we
are envisaging here is that if a person did go to another Member
State they would be reimbursed for the cost of what that treatment
would be in the UK, not more. It would be for what it would cost
here and that is why we are very keen that we do have a good system
of patient information so that people are very aware of what is
actually required of them in terms of the payment.
Q7 Baroness Gale: I want to look
at some of the practical issues relating to patient mobility.
One, which I think you have just mentioned, is the provision of
information. You said there is a good provision of information
but you also said earlier that it would be on the basis of GP
referral, just the GP referring the patient. How would the GP
have all the information that he or she would need and be able
to give it to the patient? When they return home is there a continuation
of care at home once they come back? The language barrier is obviously
a big barrier to overcome for the patient and the staff in the
hospitals again between the administrative barriers when the arrangements
are being made between the two countries. If a patient is in a
country and they do not understand the language there could be
huge problems there unless there is going to be the provision
of interpreters, for example, to assist the patients. I think
those were the four points I wanted to raise, the language, the
continuation of care and the provision of information to make
sure the patients are fully aware of everything.
Ms Winterton: That is a crucial part of this
but I think we have to be very clear that in a sense patients
need to realise that this kind of mobility does carry a certain
amount of risk with it and that if somebody decides that this
is what they want to do, if somebody says, "Well, I want
to have my operation there for family reasons" or whatever,
the patient does have to find out what is actually going to be
covered. We need to be clear about what it would cost in this
country to deliver that care but we have to be clear that if a
patient chooses to do that they have to realise that it will be
standards of medical care that apply in that particular country;
it has to be the standards of redress that will apply if that
is what they choose to do. It is important for the patient to
realise that, that this is not like a situation where a Primary
Care Trust (PCT) might be the provider of care. There have been
some instances where PCTs on the south coast have purchased some
operations from France which is where the PCT is, in a sense,
taking that responsibility. This is a different situation because
somebody is choosing to go to a different country. What we intend
to say to the Commission is that we think that the providers who
wish to provide a service to patients from other Member States
(for example, if a hospital in Estonia says, "We would like
to provide hip operations") they would have to provide patients
with information about what exactly that meant. What does the
package of care that they are providing cover? Does it include
aftercare? Will the healthcare provider have somebody there who
does speak English so that the patient can understand the treatment?
What will the patient do if something went wrong? We believe that
that should be the responsibility of the provider who says "We
want to sell our services"; they have to provide the information
that goes with that so that the patient is fully aware of what
is happening if they choose to take that route.
Q8 Baroness Gale: Obviously a decision
would have to be made by the patient whether they wanted to travel
abroad, but if the patient decides "I believe I can have
this treatment in another country and I want the NHS to cover
this cost" or, as you say, in some areas the PCT will actually
buy that in, so it could be that the main responsibility will
be on the patient seeking that treatment abroad and it is then
up to that patient—not the GP or anyone else—to ensure
that everything is in place for that person.
Ms Winterton: It is for the GP to say that the
patient needs a particular type of treatment. The gateway in this
country is through the GP. You cannot just roll up to a hospital
and say, "I think I need an operation". The GP is in
a sense the person who refers you on for the decision to be made
that you actually need treatment. What we want to preserve within
any legislation that might come forward is that the GP remains
the gatekeeper in the sense of saying that that treatment was
something that would be provided locally and was necessary. What
we are saying is that if a patient really wants to go somewhere
else then it is quite different from the situation, as I have
said, where a PCT might purchase X number of operations somewhere
else; it would then be the PCTs responsibility to make sure what
the package of care is and so on.
Q9 Baroness Uddin: Minister, I just
want to take on board what Baroness Gale has just said and also
the point that Baroness Howarth raised with regards to consumer
choices and information. It is obviously taken as read, those
of us who are committed to the NHS, that we have a good standard
of care. I was deeply thoughtful, not being involved in this Committee
from the beginning but listening to everything that is going on
about the inequality of access, that it is a handful of elite
as you say—not your words, but mine—who will end up
using the mobility or the access they may have and they will have
choices, but do you foresee a sense of responsibility that the
NHS have and how we might do that, about educating the wider public
not just about the risks but also about rights and responsibilities
about going abroad? Is there some communication? Are there materials
available that are available to the wider public or is it simply
the gatekeeper, ie the GP, who has it? My other concern was that,
having worked in Community Health Council (CHC) for a long, long
period and looking at consumers and complaints I remember often
people were complaining about GPs not referring them to the right
places in their own eyes. Is there a kind of second tier of gatekeepers
in this context that also may decide and how do we educate the
public on the benefits or disadvantages to the UK National Health
Service of going mobile in this way?
Ms Winterton: This is one of the reasons why
we do need clarity. At the moment we can issue a certain amount
of guidance to the NHS on how to deal with some of these issues.
If there were to be legislation then obviously we would want to
be making sure that people did have proper information as to what
their rights were and obviously that is something we would look
at when there was proper clarity about it. When we talk about
choice and so on, I think I would say that we do need to be clear
that within the UK what we cannot necessarily do—it would
be almost impossible to do—is to take responsibility for
everything that happened to somebody who chose to go elsewhere.
Q10 Baroness Uddin: The responsibility
of the wider public or the users of the NHS rather than the Department's
responsibility. They have some responsibility if they are suddenly
deciding or wanting to decide that they will go elsewhere seeking
services. It is their responsibility rather than the Department's.
Ms Winterton: I think it is our responsibility
to make clear what the risks are. The benefits to an individual
will probably be pretty obvious. They will say, "If I can
go here and be with my family afterwards" or "If I go
here I am going to get this done more quickly" then one presumes
that is what they see as the benefit because that is why they
are choosing to do it. It is quite a big choice frankly. Not many
people really think, "I will just nip over to Estonia for
whatever"; this is something that people will think about.
Our responsibility is to make sure that they know that what they
are getting and they need to enquire about that and they need
to be aware of all the risks that are associated. I think it would
be our duty to do that because that is where people, if they come
back and say, "Nobody told me I was not going to get somebody
to come and attend to me afterwards" or "Nobody told
me that if something went wrong I do not have the same rights
of redress as I have here" or "If the PCT paid for it
does that mean they are now responsible for everything";
it is our duty to explain to people exactly what the risks are.
Q11 Lord Wade of Chorlton: In a way
your answer to one of the questions has dealt with one of the
issues I was going to raise regarding confidentiality and data
protection because clearly if a person is having an operation
abroad then their medical details would go with them if they wanted
them to. Clearly this is an issue that has been addressed very
much in the UK and we are very conscious of the fact that a person's
health statistics and figures about themselves and particularly
genetic information is a very private matter and it should not
be divulged to anybody else without their permission. I sat on
the select committee that looked at this three or four years ago,
looking particularly at genetic information then, a genetic database
of information. The evidence we took was pretty clear. There is
a lot of strong, emotional feeling by some people about this issue.
In a way your reply to that is that if you decide to go then you
have to take any risks where your information might be less confidential
abroad than it is here. I do not know what your comments are on
that.
Ms Winterton: Obviously the principles of confidentiality
and consent are paramount and I think all the Member States follow
the principle that access to medical records should only be with
the patient's informed consent. Certainly our view is that where
there is any processing of UK health information outside the UK
we would want to see the same standards as apply domestically.
Q12 Lord Wade of Chorlton: If there
was a situation where an NHS hospital wanted to send people abroad
because they wanted to reduce their own waiting list or whatever—which
has happened I believe in some cases—then that is quite
a different issue than if someone decides under their own volition
to want to go abroad because then I suppose they have to take
the risk. However, if they were sent over then it would be the
responsibility of the hospital that sent them I take it.
Ms Winterton: I would guess that even if a PCT
had purchased care abroad, particularly as in what we were talking
about earlier, they would still need the patient's consent to
pass the medical records to another hospital. I think the same
principles would apply.
Mr Burke: Our Data Protection Act is based on
a European Directive and therefore every other Member State should
have similar principles to our Data Protection Act.
Q13 Lord Trefgarne: Our discussion
up to now and what you have been saying has concentrated very
much on patients going from one country to another but is it not
equally important that the Directive addresses the need for the
professionals moving in all directions as well. I am thinking
not only of the doctors but also all the other professionals in
the health service, for example the technicians and the radiologists.
Are we clear that the proposals that are now coming forward will
have those needs in mind as well as the patients'?
Ms Winterton: One of the things that we think
is that this could be quite a useful vehicle for making sure that
this kind of information is passed systematically because there
is a mutual recognition of professional qualifications which means
that that does allow health professionals to move between Member
States and should allow the passing on of information. We do think
there is a bit of an issue about, for example, perhaps misconduct
that is not systematically passed on and that this might be a
useful vehicle to making sure that that does happen.
Q14 Lord Trefgarne: How is that going
to work? There have been some famous cases where a doctor has
come here—or, for that matter, gone elsewhere—who
has been disciplined in some way and ought not to be practising.
Ms Winterton: I think what happens at the moment
is that if somebody wants, for example, to register as a doctor
they have to produce a kind of good character statement or standard
of good character, but we are not entirely sure that that is necessarily
as rigorous as perhaps it ought to be. I think at the moment the
standard of good character may not include whether there has been
a complaint and whether it was upheld or not upheld. I am not
sure that that is passed on. That is the kind of thing we would
like to make sure that there was greater clarity about.
Q15 Lord Trefgarne: You will be making
these points.
Ms Winterton: We will make the point to the
Commission that we think this could be a vehicle for doing that.
We also want to clarify that Member States can require that health
professionals should be proficient in the language that they are
working in and again we think that that is something could usefully
be addressed in these proposals.
Q16 Earl of Dundee: Across the European
Union the definition of health care may vary quite a bit and it
appears that one Member State's healthcare is another one's social
care. Does this matter? If it does, what can we do about it?
Ms Winterton: I think it does matter. The case
law itself actually indicates that it is for Member States to
define what benefits their own citizens are entitled to. One of
the things that we want to go back to the Commission with in our
response is that one of the key principles that we think should
underpin any proposal that they might come forward with is to
reaffirm that it is the home healthcare system that should determine
what treatment patients are entitled to. That is certainly one
of the key principles that we think is extremely important again
in terms of enabling Member States to be able to manage their
own healthcare systems properly.
Q17 Earl of Dundee: Are you nevertheless
happy enough that that will contain the ambiguity? I suppose the
progress of cross-border health services will depend upon a mixture
of coastal and political decisions and this progress may well
be held up by an absence of consent or definition. I do not know
whether the adverse impact of that upon political thinking there
is not least its probably adverse effect on the interpretation
of case law. Even if we begin to go country by country, do we
not also need to advance or seek to achieve a greater degree of
consensus across Europe about what we mean by healthcare?
Ms Winterton: I think the difficulty with that
approach is that would we end up saying that if we harmonise what
everybody believes would be healthcare treatment that would lead
us down a line surely of saying that if we recognise a certain
type of treatment in another country then automatically everyone
in the UK would be entitled to it. Our principle is quite firm
that we think that if we offer that here then that is what we
will pay for elsewhere and if another country chooses to have
a different treatment then that is up to them, but we cannot say
that we have to import that here or allow UK citizens to go elsewhere
for that because that would just lead to the problem that would
mean that we were not able to manage things successfully. I suspect
that we might find that there were other Member States who are
not as prosperous as us who would find that extremely difficult
as well because that principle for them would be really quite
difficult to sustain.
Mr Mogford: That is certainly one of the big
difficulties. The other one, the classic example, are some of
the continental Europe countries that include things like spa
therapies and what have you in their definition of healthcare
and how that then gets translated is quite difficult.
Chairman: What a wonderful thing that
would be. Rehabilitative care is something that the health service
is not very good at.
Q18 Baroness Greengross: I used to
have a great deal to do with older people in Spain and that is
a real case in point. The basic health care that they get does
not cover the home care which we might call social care but which
is bunched together in this country quite a lot with community
nursing and what have you. What has happened about paying for
that? Is that part of the money you were talking about that we
pay out or do they just not get anything? Is that going to develop
at all?
Ms Winterton: What we pay for is what the Spanish
system offers in terms of their healthcare.
Q19 Baroness Greengross: The voluntary
sector does a lot but they cannot look after the thousands and
thousands of British.
Ms Winterton: We pay for what their healthcare
system offers.
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