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

Examination of Witnesses (Questions 40-59)

Rt Hon Dawn Primarolo, Mr Paul Whitbourn and Mr Jonathan Mogford

30 OCTOBER 2008

  Q40  Lord Trefgarne: That was not the question I wanted to ask. I wanted to ask whether any of these figures include dentistry. There has been some publicity recently of dental firms going to some extent to attract dental patients over to Poland.

  Ms Primarolo: We are trying to get more detailed questions with regard to whether people are travelling for dentistry and what type of dentistry; that is, whether it is what would be considered cosmetic dentistry here and therefore they would be in the private sector provision anyway, as opposed to the National Health Service. The figures are very small and it is difficult to tell. For instance, the number travelling, as I say, to Poland outside of maternity was only one. If we look at Spain in 2007, there were 25 maternity and 12 others for specific treatments. Regrettably, I cannot give you that information now but I am trying to get it. I do think it is relevant and I will make—

  Q41  Lord Trefgarne: It sounds as if your figures do not include dentistry, if there was only one.

  Ms Primarolo: I do not think so. I think it may be because they are travelling privately. That is obviously relevant to the Directive.

  Q42  Chairman: We are going to come on to that.

  Ms Primarolo: Okay.

  Chairman: Lord Lea is going to come in.

  Q43  Lord Lea of Crondall: There is a reciprocal leg of the question, Minister, which you have not touched on, which is people coming this way. Do you have any numbers on that?

  Ms Primarolo: No. At the moment I do not have numbers with regard to the number of people we are treating here through that scheme. The only numbers I have are the wider headline figures about the reimbursements that go on between Member States in treating each other's nationals. That is very complicated, because it is to do with retirement living abroad, as well as work.

  Q44  Chairman: We are going to come on to ask you a little later about the implications for that.

  Ms Primarolo: But we are going to try to see—and that is what the consultation is—because it would be decided at PCT level or at Trust level whether they took those patients.

  Q45  Lord Eames: Minister, you touched on some of this in your introductory remarks, but I wonder if you could say something more to us about the rights to be reimbursed. The proposed EU Directive is already indicating that it is going to move to clarity on this. What clarity do you think the UK should seek? I am particularly interested in whether you think this applies to private medical care. It is really the area that you have glanced at in your introduction on the rights to be reimbursed.

  Ms Primarolo: We have two separate mechanisms operating here and it is very important to keep both of those in focus. The first one is establishing the right to treatment. Article 6 deals clearly with that. Article 6(3) is very important for the UK in terms of making it clear that it is helpful language, because we are trying to make sure that it protects the NHS referral system, which is that a health professional determines the clinical need of the patient and determines then the treatment. That is part of how it would operate for us. The prior authorisation is about treatments already established and to which the individual is entitled, whether or not they apply to be treated in another Member State and at what level.

  Q46  Lord Eames: Does this provide sufficient safeguards in terms of the dimensions that a patient is entitled to?

  Ms Primarolo: We are of the view at this stage that the continued principles and keeping them—and they are buttressed at different points and in different ways in the draft Directive—so that the Member States determine their healthcare systems, the Member States determine what is available in their healthcare systems individually, and, then, within the structures of their health systems they have ways of determining your access to treatment: clinical need and then treatment. The question of prior authorisation raises a different set of questions. What would trigger that? The application is the trigger for considering prior authorisation. The prior authorisation is given for treatment that would have been available, that has been clinically determined at the tariff that is determined here, or, if it is less, that is what we pay. How will the prior authorisation work? We think it is consulting on it, but I am of the view that that would be determined at the PCT, at the clinical level, because the patient and the clinicians will know what is best for them. The Directive, at the moment, says that it will be a reimbursement—and we start drifting into some other articles here, so I will try not to—so we need to look at how that would work. We have two levels of equity working here as well: the equity of the entire health system for everyone but then the individual. The steps in prior authorisation need to be clear, therefore, and to give clear rights, so that the patient knows what they are entitled to, so that the Health Service knows what it is giving, but there will be other things that we have determined. The patient needs to be absolutely clear who is responsible for giving the advice, which legal framework applies, what their entitlements are to after-care.

  Q47  Lord Eames: Do you think we can achieve that clarity?

  Ms Primarolo: Yes.

  Q48  Lord Eames: It sounds so complicated.

  Ms Primarolo: It is complicated. The principle is to codify the case law that we have now and not to open up any other areas, and not to leave, if we possibly can, any legal uncertainties or lack of clarity whereby the European court may have to determine something else in the future. I know that some of my colleagues in other Member States are very tempted, as always, and some of the professions here are, to clip other things onto this draft Directive, but I think we need to stay very, very focused. This system already operates in the UK because of the Watts case, but it would be very, very helpful to be clear on it.

  Q49  Lord Eames: Finally, the private medical sector.

  Ms Primarolo: As far as we can tell it is going to apply to private insurance. That is why we are consulting on this and speaking with the private insurance industry. One of the issues it raises is that we would have to have some awareness of—how can I put this?—insurance products that do not exist at the present time that might then be created that would have a backlash against the NHS or anybody else. We are experiencing this in the financial sector at the moment. That is an area. That is why the consultation is so broad, because we need to get to these and be clear. This is very, very early days on the Directive.

  Q50  Chairman: We will be calling some of them as witnesses.

  Ms Primarolo: Good. I have a feeling I will be back in front of you because this is going to go on for a while.

  Q51  Lord Eames: I have a feeling the phrase is "You are very glad I asked that question".

  Ms Primarolo: Yes. Thank you. I am, indeed.

  Chairman: We are going to have to move on. Lord Trefgarne, you want to pursue this legal basis.

  Q52  Lord Trefgarne: Yes. Minister, you have already touched on the various legal provisions which apparently empower the Commission to do all this. The Commission are, of course, past masters at picking up a legal authority to do with this or that. Sometimes that is a good thing, and maybe it is in some aspects of this, but there is still the principle of subsidiarity; in other words, are we sure that they are not doing or seeking to do things on a Community-wide or Union-wide basis which we could do better ourselves and which the individual Member States could do better themselves? Are you satisfied that the Commission have the right legal basis for all this? You are aware, I am sure, that there were some Danish concerns expressed on this matter which might have pointed in the other direction.

  Ms Primarolo: Clearly we know there is a tension in the Treaty between fundamental principles and the question of healthcare systems being determined by Member States. I want to be as clear as I can be with the advice that is given to me, that we must not lead to a risk of further legal challenge in anything that we do in this area. The advice to me is that we are using the correct legal base for negotiation here, but—and this is not unknown in long negotiations on Directives—sometimes that legal base can shift. We are staying very alive to that issue and discussing it with other Member States. The issue for me—and it comes up later and you might want to return to it at that point—is about what is meant by these committees and why do we need them if it is Member State determined. If we are codifying case law as it already exists—which is my view, that that is the only reason for doing this—why would we need that? I think there is always the danger that either inadvertently or by design it goes further than we intended, and all I can do on that basis is obviously draw on the expertise of those in this House and in the Commons, the evidence that I get. The NHS, as a health system within the European Union, we know is unique, but actually it needs to be protected, as it is not about bringing things into the NHS or making the NHS accountable to anyone else except for the citizens of this country via the democratically elected representatives.

  Q53  Lord Trefgarne: But it would be open to this Committee, would it not, if we were so minded and we were concerned that they were going beyond their competence or were attaching things, like the committees to which you have referred, which did not seem necessary to achieve what they were proposing, to say so in our report.?

  Ms Primarolo: Yes, and I would welcome that. I fully appreciate, as you do, that this is very complex. If this Committee had a view on that, I would want to know it and to be able to take account of it.

  Q54  Lord Trefgarne: Whether the Committee have views or not remains to be seen!

  Ms Primarolo: Forgive me, but all views are gratefully accepted in the melting pot of working out how to achieve this.

Chairman: We will find a way of conveying our views clearly on this. You have been answering extremely fully and helpfully, which means it is very clear, and it means you have answered some bits of the question. The Committee will be aware of that. Lady Neuberger is going to take those areas of prior authorisation that you have not yet covered, so she will probably not ask the question in the form you will have had it, but I do not think that will worry you. Then she will go straight on to equity and we will come back to Lady Perry.

  Q55  Baroness Neuberger: Minister, I ought to declare an interest. I am a director of the Voluntary Health Insurance system in Ireland, which is a semi-state insurer in Ireland and so is absolutely relevant to this. You have covered most of the issues around prior authorisation but I have two questions. What is your view of the exclusion of non hospital care from this?—and of course you have already talked a little bit about dentistry. Second which I think is a real issue—if prior authorisation operates very differently across the EU—and it might—what is the implication of inflow of patients into this country, amongst other things?

  Ms Primarolo: The non-hospital care is not excluded. It is that the reading of the case law so far by the Commission is narrower than ours. I think the Commission's view is that they do not feel there is sufficient evidence to justify that they should move to this[2]. To be honest, I think this is another one of the many that we need to be watching very carefully, but, ultimately, the most important point is that it is the Member State decides and how it is funded. We only need to look at some of the recent reports in comparing this across the European Union, either on mental health services or misuse of drugs, elicit drugs treatments, to see—

  Q56Chairman: Or organ donation.

  Ms Primarolo: Indeed. The whole concept of primary care. There is not a concept. You cannot define primary care clearly, it seems to me, across the whole—

  Q57  Baroness Neuberger: We do not even define it completely here.

  Ms Primarolo: No, we do not. I think that is why the Commission is avoiding that. Given we have a long time—because when it will have its first reading, we will have a discussion as ministers at the December Health Council for the first time—I think we need to be very clear and keep an eye on this. I have forgotten the other question. I am so sorry.

  Q58  Baroness Neuberger: It is about the implication of inflow into the UK. It could be good if money comes with, but ...

  Ms Primarolo: It depends, does it not? The primary purpose of the NHS is to improve the healthcare for the citizens of the United Kingdom. First, it is difficult to work out what the inflow may be—and we are trying to get information now, although it is very, very difficult. But, given that Member States will be determining the flow through prior authorisation, and other Member States have mentioned very clearly to me the concerns that they have for the capacity of their own health services if certain strategic health services suck everyone in, I think there is already a countervailing argument about Member States coming the other way and how this would be sustainable and reasonable.

  Q59  Baroness Neuberger: Absolutely.

  Ms Primarolo: As far as I am understanding the provisions at the moment, if you like the receiving Member State has to agree to take the patient.

2   This remark that non-hospital care is not excluded (from prior authorisation) is in the context of the present European Court of Justice (ECJ) case law. Back

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