Healthcare across EU borders: a safe framework - European Union Committee Contents

Memorandum by the Department of Health (DH)

  1.  The Government welcomes the House of Lords' Inquiry into the draft directive on the application of patients' rights in cross-border healthcare and the opportunity to provide more detail to the Scrutiny Committee. Following the Call for Evidence, we have set out our responses to the questions asked.

What do you see as the general advantages and disadvantages of patients having the right to obtain healthcare in Member States other than that where they reside? In what circumstances might patients seek to exercise any such right?

2.  There are routes through existing European Union (EU) Regulations where patients can seek treatment in other Member States. Patients have the right to obtain healthcare that becomes medically necessary during a temporary visit to another Member State, through the European Health Insurance Card Scheme (EHIC). These Regulations, which co-ordinate social security benefits, also entitle posted workers and pensioners (and their dependents) living in another Member States to healthcare, paid for by the home Member State. Finally, the Regulations allow people to apply to their local commissioner to go to another Member State for planned treatment under the E112 scheme. Therefore, there are already circumstances where patients can seek treatment in another European country.

  3.  In addition to these routes, European Court of Justice caselaw has created a general entitlement, based on the freedom to obtain services, for people to access healthcare (subject to certain conditions) throughout the European Union. It is this caselaw that the proposed Directive aims to codify.

  4.  The Government notes that patients can now access more information about their healthcare than ever before and the ability to go to another Member State potentially offers other options for patients. The Government will be undertaking more work to assess the potential advantages and disadvantages of patients having the right to obtain treatment in another Member State. Although the European Commission has suggested that the overall impact of the proposals are broadly cost neutral, we will be looking at, for example, the potential impact on the NHS should significant numbers of NHS patients chose to travel overseas for healthcare.

What problems do you think have arisen as a result of the present uncertainty in respect of EU citizens' rights to obtain such cross-border healthcare and to have the costs of this reimbursed by the Member State where they reside?

  5.  The Government considers that successive judgments from the European Court of Justice has created some uncertainty in terms of how the case law should be applied in practice. For example,

    —  what level of reimbursement should a patient receive?

    —  who determines entitlements from state systems?

    —  can states protect traditional gatekeeping systems?

    —  what are the rules for refusing prior authorisation?

    —  what are the principles of clear and transparent pricing/costing systems?

    —  We believe it is necessary for patients and governments to have a clear understanding of the rules that apply to cross border healthcare.

What need do you see for EU level action in this field and, if you do see such a need, what objectives should such action have?

  6.  The Government considers it is helpful to codify the case law and clarify its applications by means of the proposed EU directive. The key objectives of this EU level action should be to:

    —  Provide clarity to patients about their rights and responsibilities if they wish to seek healthcare in another Member State.

    —  Respect Member States responsibilities for deciding how to run their own health systems.

    —  Ensure that the directive recognises that it is for Member States to determine entitlements to state-funded healthcare for their own citizens.

    —  Provide clarity about the administrative procedures that Member State health systems can implement in order to support a sustainable framework for cross-border healthcare which allows Member States flexibility to manage their health systems.

What is your view of the extent to which the Commission's proposed directive will meet the objectives, if any, that you judge action at Community level should have?

  7.  The Government welcomes the draft directive as an opportunity to clarify the implications arising out of the case law. The Government considers that the proposed directive is an acceptable basis for negotiations about the rules which should apply in relation to cross-border healthcare.

What conditions, if any, do you feel that Member States should be allowed to impose on citizens' rights to seek healthcare in another EU country—and to what extent do you think the draft directive satisfactorily makes provision for these conditions?

  8.  The Government welcomes statements in the draft directive that expressly say that it is for Member States to determine entitlements to state-funded healthcare and that this directive does not introduce new rights to treatment. In addition, it supports the principle that Governments should be able to require citizens to continue to use "gatekeeper" systems (in the UK, this means that a patient is required to consult a GP or other appropriate healthcare professional before being referred to specialist treatment). We also think the directive should be clear that it is for clinicians in the home Member State to determine entitlements and not clinicians from other states.

  9.  The Government's view is that the existing case law recognises that establishing a system of prior authorisation is justified should patients wish to seek hospital care in another Member State. We consider that this principle should be clear in the directive. The Government also notes that although the Court has said it has not seen sufficient evidence to justify a prior authorisation scheme being needed for non-hospital care, it has not expressly ruled out such a scheme.

What limits, if any, do you think there should be to the level of costs which Member States should be obliged to reimburse to citizens who obtain cross-border healthcare—and to what extent do you think the draft directive satisfactorily makes provision for these conditions?

  10.  The Government believes that healthcare costs for reimbursement should be limited to the amount which the home state would have paid for the treatment, had the patient been treated by the NHS, or the actual amount that the treatment abroad cost (if the latter is lower). The Government considers that article 6 currently supports this aim.

What is your view of the likely practical impact of the proposals and of how they would affect day-to-day healthcare provision in the UK? For example, could language difficulties present an obstacle?—Who should be responsible for after care (out-patient and in-patient)?

  11.  There are likely to be a number of practical impacts, including different clinical pathways in other Member States, different pricing and billing systems, and how to ensure that patients have sufficient information to make an informed choice. This should include information from the NHS about what healthcare a person is entitled to and what level of reimbursement applies. Patients will also need information from overseas healthcare providers about treatments available. Patients will need to be aware that NHS standards will not apply to care received overseas, and that they should make adequate arrangements for insurance and for addressing any language difficulties.

  12.  Where care is provided in another Member State then that country's healthcare providers should be responsible for the after care. The Government notes that should the patient need follow up care on return to the UK then they will be able to seek this on the NHS. We will be looking to explore the implications for clinicians of this, including any difficulties in understanding case notes, and also any cost implications for the NHS.

What is your view of the need to limit the medical conditions for which treatment could be sought in this manner?

  13.  The Government's understanding is that the directive applies to treatment for all conditions. The Government believes that a person should not be able to get reimbursement for treatment if they have no clinical need for that treatment, or if it is one to which the person would not have been eligible to receive on the NHS.

How important do you feel it is to ensure that opportunities to benefit from rights to cross-border healthcare are, in practice, made equally available to all citizens and are not confined to just the wealthy or well-educated who may have the knowledge and ability to take advantage of their rights?

  14.  The Government believes that everyone should have the right to access good quality healthcare. First and foremost, we remain committed to providing that on the NHS. In England, patients are already entitled to choose from any provider of NHS services for elective care.

  15.  Under the directive, patients will be required to pay the costs of overseas treatment upfront and then seek reimbursement up to the level that the NHS would have paid to treat the patient at home. Although some people may be eligible to apply for help with travel costs, the Government recognises that many people may not be able to afford to seek treatment abroad. We will be looking to explore the potential impact on equity during consultation.

  16.  It should be noted that if a patient is facing "undue delay"[1] then he can already apply to his local commissioner to have the full costs of treatment in another Member State met and that application cannot be refused. However, where "undue delay" does not apply, the Government does not believe it would be an appropriate use of NHS resources to fund treatment costs in another Member State upfront.

How do you think the aim of such equality of access should be achieved and to what extent do you feel that the draft directive is satisfactory in this respect? To what extent, for example, are the provisions on the availability of information sufficiently robust?

  17.  As indicated above, the Government is committed to providing high quality care and allowing patients choice of any provider in England. There is a route for ensuring that those who need treatment abroad for medical reasons are able to get this, irrespective of ability to pay. This is covered outside the directive and we do not believe the directive therefore needs to specifically address this mechanism.

  18.  We note that the draft directive specifies that information should be provided in a broad range of means, including electronically. We believe that this will help ensure that information is available to support NHS patients make an informed choice about their treatment and be aware of their rights and responsibilities. For example, patients will need to ensure they have adequate insurance arrangements to cover their treatment. Nevertheless, we have concerns about how much practical information about treatment options in other states the NHS will be able to provide.

What are your views on the provisions set out in the draft directive for cooperation between Member States, including: the mutual recognition of prescriptions; the establishment of European reference networks of healthcare providers; e-health; and the management of new health technologies?

  19.  In general we believe that there is a role for EU wide co-ordination in some areas of healthcare, particularly where this can share expertise and add value to existing domestic policy aims. However, each provision relating to specific policy areas must be justified on a case-by-case basis; the Government does not consider that it would be appropriate for the directive to be used to encourage cooperative work which does not have the express purpose of facilitating crossborder healthcare.

  20.  The Government recently amended Medicines legislation to facilitate the mutual recognition of prescriptions. The draft directive proposes that the Commission may develop an EU-wide prescription template. We will need to consider if this goes beyond the information required on UK prescriptions. We will also need to consider any measures proposed to facilitate the mutual recognition of prescriptions, such as e-prescriptions, to ensure patient safety is maintained.

  21.  The Government has been participating in the European Reference Networks pilot project. This presents an opportunity for clinicians to share expertise on the treatment of rare diseases. We support the aim of the reference networks but think their remit should be limited to covering treatment for rare diseases.

  22.  Concerning e-health, the Government already collaborates on e-health initiatives as part of the European eHealth Action Plan. The Government notes that the provisions in the directive relating to e-health are potentially quite wide. It will be seeking to clarify the scope of this provision.

  23.  Finally, the Government broadly supports health technology assessment networks as a means of sharing information and good practice but is keen to advocate using existing mechanisms. The Government will want to be clear on funding commitments and organisational structure of any networks.

7 September 2008

1   In arriving at a decision about what "undue delay" means, the European Court of Justice has stressed that this must be based on a clinical assessment of what is a medically acceptable period for the individual clinical circumstances of the patient, and that this assessment needs to be kept under review while the patient is waiting for treatment. Back

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