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8 Jun 2009 : Column GC1

Grand Committee

Monday, 8 June 2009.

3.30 pm

The Deputy Chairman of Committees (Baroness Harris of Richmond): Before the noble Baroness, Lady Howarth of Breckland, moves the first Motion, I remind noble Lords that the Motions before the Committee will be that the Committee do consider the Select Committee report and the statutory instruments in question. The agreement of the Committee to the Motions will not affect the status of the statutory instruments, all three of which are negative. If there is a Division in the House, the Committee will adjourn for 10 minutes.

Healthcare: EUC Report

Copy of the Report, Vol 1
Copy of the Report, Vol 2

Considered in Grand Committee

3.31 pm

Moved By Baroness Howarth of Breckland

Baroness Howarth of Breckland: This is rather an interesting day for the nation in terms of Europe. I did not think that I could begin without at least acknowledging that interesting things were happening.

I know from the work of the sub-committee and the whole European Union Select Committee how important our influence is and should remain. Indeed, one hopes that it will increase, as we cannot afford to lose that influence about the everyday issues affecting people in our nation. One of those people—Mrs Watts—in 2006 investigated the possibility of hip arthritis treatment on the basis of an E112 form. This scheme allows nationals of EU member states to travel to other member states for treatment at the cost of the relevant authority in the home member state, as long as they have been authorised by that authority. Mrs Watts’s request was refused because the projected one-year wait for the operation was within government targets and therefore could be considered “without undue delay”; that is one of the criteria for E112 authorisation. Having failed to secure authorisation on appeal, Mrs Watts proceeded with treatment in France. She finally took her case to the European Court of Justice, which found in her favour.

In the history of case law over the past 10 years, individuals uncertain about their legal rights or challenging the decisions of their healthcare providers have continued to take their cases to the European Court of Justice, and a history of case law has been established in the field of cross-border healthcare. The EJC has consistently confirmed the right of patients from EU member states to travel to another member state to receive

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healthcare. However, uncertainty has remained over how that right should function in practice, which has acted as a barrier to cross-border treatment for many patients, and current levels are low, with the Commission estimating that cross-border treatment accounts for only about 1 per cent of public expenditure on healthcare. The European Commission has therefore introduced a proposal for a directive on the application of patients’ rights in cross-border healthcare to overcome these barriers and to provide a safe framework for the delivery of cross-border treatment throughout the EU. That proposal was the subject of an inquiry and subsequent report, which your Lordships have, from the European Union Sub-Committee dealing with social and consumer affairs.

During the inquiry, the committee heard from many interested parties and received a wealth of evidence. We spoke not only to the Minister, Dawn Primarolo, but to the Health Commissioner. The report is well timed to influence both the UK and EU-level approach to the dossier, as the discussions and negotiations progress. The committee concluded that the proposal is justified and necessary as an attempt to codify the case law in this area but the demand is at best unclear and is likely to differ significantly across the European Union, with demands greater in countries sharing land borders or for reasons of size—like certain specialities. The precise mechanics required to deliver it are equally unclear. Our report identifies some of the challenges to be met, which are unresolved in the directive as drafted, such as delivering a smooth pathway of care for patients, ensuring that patients and practitioners are able to communicate with one another—the language problem—and collating and disseminating information on what is available through cross-border healthcare. In short, a large number of practical issues remain to be resolved. Since producing our report, we have received the government response, which is largely in accord with our findings and recommendations. In addition, the European Parliament has completed its first reading and negotiations are ongoing in Council working group, but it is unclear when a common position will be reached—possibly even more unclear than when I wrote the speech.

The European Parliament has underlined the position taken by the committee and the UK Government that healthcare is a member state competence, and therefore that entitlement may be decided at national, regional or local level. That was a key issue for the committee, as prior authorisation by a GP or other appropriate healthcare professional is essential to establish clinical needs and ongoing care. The ECJ decisions have confused the issue, but I understand that the European Parliament has said that prior authorisation should be refused only in the context of a “fair and transparent” procedure, and that reasons for refusal should be made known in advance. I ask the Government whether they will continue to press for the right to set up a national authorisation scheme. I also understand that the Parliament has removed the comitology—the delegated requirement—to reach an EU definition of “hospital care”, leaving it up to member states to define what constitutes hospital care for the purpose of applying prior authorisation. I also ask the Minister whether the Government will continue to press for clarification

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about the finer details of delegated or comitology committees, where rules might go further than those required by the legislators.

The committee concluded that many benefits could accrue from providing a safe framework for cross-border healthcare, such as the reduction of waiting lists, an increase in standards of care, and certainty and peace of mind for patients travelling abroad to receive care. There are benefits for patients with rare diseases, disabilities and life-threatening conditions, where it appears that the European Parliament is making an exclusion from the requirement to seek prior authorisation. Does the Minister agree with that position? Is the Government’s view that prior authorisation should be sought for all patients?

I want to say just a word on the apparent exclusion of organ donation from the scope of the directive, recognising that it does not mean that European case law is similarly disapplied. The committee has an interest based on one of our previous reports as well as this one, and would be interested to hear if the Government had any thoughts about how that would be taken forward.

The committee had a major concern about equity, echoing many of our witnesses, especially those representing patient groups. A system where a patient had to pay up front for their care only to be reimbursed at a later date would exclude those without the necessary financial resources from using cross-border treatment. The European Parliament, like the committee, appeared to suggest that there be a system of state-to-state payments, but the UK Government seem to see any such system as open to fraud and impacting on patients who cannot or will not travel for healthcare. How will the principle of equity ensure that all groups have equal access, whether or not they travel abroad for their care?

The committee heard a range of views and evidence on the cross-border recognition of prescriptions. The Commissioner told us that, while a rule existed on the subject, it was difficult to implement in practice. To facilitate it, the Commission intends to develop a community prescription template and other measures to safeguard public health. The committee recommended that it would be also helpful for the Commission to develop a set of detailed rules for the cross-border recognition of prescriptions, but the Government appear to think that this is not practical. Given that differences in prescribing practices in the health of patients who travel exist, how can these patients be protected during their stay abroad and their continued care at home, thus ensuring that they have proper prescriptions?

I congratulate the Government on their success in having the definition of “harm” amended in the directive. The committee was concerned that this might have included avoidable harm, leaving medical practitioners liable for such cases. We understand that under the present proposals, harm will be defined by reference to the existing legal framework of the member state of treatment. However, in relation to redress generally, will the Minister clarify the UK’s response to a recent suggestion that has come from the Commission that a European patients’ ombudsman service should be established?

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I know that colleagues will speak about many other aspects of our report, but this is a complex and fast-moving scenario. The European Parliament’s opinion has responded to many of the areas of concern we raised in our original report, but we must remain vigilant and continue to assert that the delivery of healthcare is a member state competence. The EU Parliament completed its first reading after voting to adopt John Bowis’s draft with amendments. He was unable to give direct evidence to the committee, but he kept in touch. As he leaves the EU this session, I should like to pay tribute to his work in social care and healthcare in Europe. He has been exceptional and has kept this work far above politics.

However, the work continues. One difference we have with the Government is the timescale for assessment of the scheme. The number of cross-border patients at the moment is proportionately small. The Commission believes that mobility of patients is a limited phenomenon, but we do not know. We have no idea of the level of inflow of patients from other EU countries to the UK and statistics seem to be generally lacking. One of our key conclusions was to review whatever is put in place within three rather than five years of commencement. Member states then would learn the lessons sooner rather than later. The Government agree that it was difficult to predict future demand, but say that the directive must not place a disproportionate burden on health systems in terms of data collection. Without evidence, how can we assess the impact of any changes in our healthcare system? Surely statistics are already being collected that could be adapted for this purpose.

My colleagues on the committee would have wished to cover other areas. I know that the noble Lord, Lord Kirkwood of Kirkhope, will do so, raising the concerns of the General Medical Council, which has taken a particular interest in our report. But the choice of the day was not a good one for our members, most of whom would have liked to take part. However, I commend the report to the House. It has been well received by the Government and the Commission.

3.43 pm

Lord Kirkwood of Kirkhope: It is my signal pleasure to follow my chairman in this important debate. It also was a pleasure to serve under the calm and authoritative leadership that she gave the committee. She is very good at picking subjects of much wider interest across the House. We are lucky and grateful to the business managers of the House that we have found time for this debate. It has captured the interest not only of those stakeholders in the area and the Euro-anoraks; it has captured a much wider interest than that, which is rightly so because this is a very important subject. In our sitting, my chairman makes my Thursday mornings quite bright: I am never bored and always fascinated by what we learn. I was fascinated by some of the evidence that was presented. I should declare an interest as I am the new lay member of the General Medical Council, and I enjoy that work too. There is obviously an overlap.

The noble Baroness, Lady Howarth, rightly said that this is an important European day, and I agree. What strikes me is the disjunction between the work

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necessary to get the scrutiny done to make sure that the United Kingdom’s interests are protected and the complete absence of any content in the political debate in the European campaign. If the British public knew what was being done in their name, their interest would be more easily captured, and they would better understand what is at stake. This is important work, these are important subjects and it is a privilege to be part of the scrutiny process. Having spent many years in the House of Commons, I do not think that it has the time to do this kind of work to this depth and level apart from in the Select Committee work that I did latterly. Therefore, it is important that it is done in this House.

The more experience I get in some of these new policy areas, I realise there is an important interface with the devolved legislatures. This House has to remember that, and we were satisfied that proper steps were taken by the Government to make sure that the devolved authorities in the other constituent legislatures of the United Kingdom were properly consulted. I hope that throughout this debate it will be understood, as it is well enough understood in the department, that that is an important part of getting this policy right because there is a lot of argument to go on when the fine print becomes more established as the European codecision process unfolds.

I was sceptical about the need for this. When I started, I thought it was not worth the candle. There was a question in my mind about proportionality and the things that have to be put in place to guarantee that this is all done right for the proportion of the cross-border flows of patients. I had great doubts. I think they have been assuaged, but I only think so. The proof of the pudding will be in the eating. As the noble Baroness, Lady Howarth, said, there is a complete absence of any information about demand, flows or anything, and I underscore her call for the Government to look for an early review. The proposed five-year review might be too long. Coming from the United Kingdom where there is an expanse of water as well as a boundary between our nation and our sister European nations, perhaps we take a different view. Coming from the north end of the United Kingdom, that might be worse for me. We have to bear in mind that our perspective is perhaps not the same as that of somebody in Luxembourg about treatment in Germany. That is important. We need to do more research and stay on top of what happens if this right to transfer treatment in other states is developed to a point that it becomes something that a lot of people use.

As a lawyer, why it is has taken 10 years to get this directive on the road to some sort of completion is a puzzle to me, because case law is certainly not a safe basis. The committee went into that in some detail. The article on which the European Court of Justice made its basic finding was flawed. It should have been Article 95 rather than Article 49. Lawyers will no doubt argue about that for a long time and charge big fees for doing so. If we are going to do this, we must do it by way of the directive. We must make sure that case law is put back into the courts where it belongs and get on with practical provision that helps ordinary people.

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I now think that ideas about practicality and patient safety are more important than I formerly did. There is a need for clarity. We need to be absolutely sure that people do not think that this is an NHS referral. The right to have treatment in another country is not an NHS referral. It is quite separate and it is qualitatively different in all sorts of ways. We need to ensure that that is absolutely clear to those in the United Kingdom who may be thinking of taking advantage of this. The Minister used the very good phrase of stepping “outside” the NHS to think about how you can look after your own healthcare in another country. That is important.

The noble Baroness, Lady Howarth, is absolutely right to mention minimising bureaucracy. If we have made some progress with the comitology and influence in this, everyone is deeply suspicious of devolving some of these key definitional details to squads of highly professional people. I am always impressed when I talk to them, but they are in a different context from the front-line services of NHS hospitals in the United Kingdom. They cannot be expected to know the consequences of some of the definitional work. We have to be really clear and we need to limit as far as we reasonably can the use of comitology to develop this policy. We need to safeguard the NHS. The department gets that message loud and clear, but we need to protect staff as well. If professionals are making arrangements for pathways of care, the liability attached to that if it all goes wrong could become extremely messy, particularly when lots of our sister European nations have a no-fault compensation basis of redress, which we do not have. We have a well developed system of negligence and the two systems are chalk and cheese. That needs to be made clear to those who are thinking of going abroad.

Information transfer is extremely important too. Medical notes need to remain available and language barriers need to be overcome. I want to make a point from a General Medical Council point of view, which is that the regulatory information needs to be available. Fitness-to-practise information needs to be available to those who are going abroad. At the moment, there are 20,000 EEA medical doctors practising in the United Kingdom and some of them could have fallen foul of fitness-to-practise conditions in their countries of origin. That is true for the whole of Europe. I would like to think that the General Medical Council is a leader in this area because it is transparent and deals in real time on its website. I can take you to an IT terminal and show you whether there is a question mark about a registered medical practitioner's fitness to practise in the UK.

If we are sending people to Romania or wherever, it is important that there is an exchange of information so that there is confidence in the fact that there are no questions about medical competence in other areas. The GMC did a very useful survey on this. I shall give you two figures. It asked the public about patients’ rights in cross-border healthcare and about proactive sharing of fitness-to-practise information: 94 per cent of respondents said that they,

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In my view, that is a no-brainer and it should be an absolute red line for the United Kingdom Government. When we talk about information available to patients, another interesting statistic is that,

Again, that is a no-brainer and I hope that the department has that loud and clear.

Following my new interest in the General Medical Council, I am struck by the need for systems of performance enhancement and assessment across the United Kingdom to be looked at. There is very little EU research done about comparability of NHS systems. In many ways, they are very different, which is not perhaps surprising. That may change over time. Assessment and performance enhancement are essential and the EU must be put on its mettle to ensure that, over the three to five-year period that we are doing this, it gives some assurance on the comparability of our systems.

I shall say a little about language competence. In my experience since I joined the committee earlier this year, you can have really excellent EEA doctors who just cannot do the job because they cannot speak the language. The GMC is incapable of stopping them practising at the moment under current law. It is a real worry, and we need to do something about it very quickly. We need to look at the ability of the medical workforce in Europe; the GMC is concerned about that.

Finally, on the development of e-health services, the question of who regulates the doctors in charge of e-medicine is very interesting. Who has regulatory authority over an operation in Bucharest that is being remotely controlled from Edinburgh? Is it the doctor in Edinburgh or the people who are actually overseeing the procedure overseas? It is important to resolve these things if we are to evolve in a way that is safer for our patients across Europe. I now think that this is a very important subject; again, I changed my mind as a result of exposure to the committee’s inquiry. It is a very important part of public policy.

The committee has done a good job. I agree with the chair that lots of colleagues would have been here but for other commitments, which enables me to speak for a little longer. The Government need to remain vigilant. I acknowledge that the response was very positive, and the committee is right to want to maintain its interests, as I am sure it will. It has been a pleasure to serve on it, and I look forward to hearing what the Government have to say.

3.56 pm

Baroness Barker: I, too, begin by noting that this is a timely reminder of the European Union’s role in promoting the well-being and prosperity of citizens of the United Kingdom. It is good to be able to say that today. It is also a timely example of the work of this House. This House is under varying degrees of attack from all sorts of quarters these days, but this report is a shining example of why the House of Lords needs to

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exist and of the high-calibre work that it can do on issues that are not immediately high profile but which are none the less extremely important.

I congratulate the noble Baroness, Lady Howarth, and her committee for producing this report, which brings into sharp perspective a raft of complex and unclear issues that have been growing in significance for the past 10 years. I welcome her statement that all EU citizens, not just the wealthy or well informed, must be able to benefit, and that the report therefore recommends that patients should not have to pay for their treatment up front and that member states should be responsible for informing their citizens of the options that are open to them for cross-border healthcare. That is the fundamental principle in the report.

The issue of access to cross-border healthcare in the EU first came to my attention back in 2002 during a debate on the Health Bill. In response to a very innocent question from me about whether PCTs would have to inspect health service facilities abroad should someone elect to go, the noble Lord, Lord Hunt of Kings Health, the then Minister, said yes, much to the amazement of the noble Earl, Lord Howe, who was in the Chamber with me that day. The noble Lord, Lord Hunt, went on to say that, as part of this Government’s intention to open up choice to patients, there would indeed be much more cross-border healthcare. At that point, the noble Earl, Lord Howe, and I weighed in with a raft of questions, and it is interesting to see that six or seven years on, those questions remain and are only now being addressed in much greater detail. I am glad that they are. As my noble friend Lord Kirkwood said, we on these Benches welcome the report and the recognition it brings that patients, who have far greater access to information today, can and do exercise their choice to access treatment abroad—not only in the EU but in the United States and India.

It is important to state at the beginning that maternity services, which are elective services, are often used as exemplars; indeed, mention is made of them in this report. But we should recognise that maternity care is different. People who receive maternity care are not ill; they are also mobile and in a different position for exercising choice. As we know, maternity care is very much rooted in people's emotional and cultural experience. Therefore, from the outset, will be Government consider making a slightly different provision for maternity services?

I, too, was struck by the fact in the report that there are no statistics for the numbers of people who travel to the UK from the EU seeking treatment. Like the noble Baroness, Lady Howarth, I believe that if we are to have evidence-based policy, we need that information. The noble Baroness, Lady Thornton, will recall from our recent deliberations on the Health Bill that government policy has to an extent rested on the myth of health tourism to this country. Not only the public health risks but the potential risks to the provision of acute care are now so considerable that we need to know the exact facts about that.

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