Memorandum by the Department of Health
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
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
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
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
can states protect traditional gatekeeping
what are the rules for refusing prior
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
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
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 countryand to what extent do you
think the draft directive satisfactorily makes provision for these
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 healthcareand
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
16. It should be noted that if a patient
is facing "undue delay"
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
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
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
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