Examination of Witnesses (Questions 40-59)|
Rt Hon Dawn Primarolo, Mr Paul Whitbourn and Mr Jonathan
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
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
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
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 seeand that is what the consultation isbecause
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 themand
they are buttressed at different points and in different ways
in the draft Directiveso 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 reimbursementand
we start drifting into some other articles here, so I will try
not toso 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
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
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
ofhow 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, butand
this is not unknown in long negotiations on Directivessometimes
that legal base can shift. We are staying very alive to that issue
and discussing it with other Member States. The issue for meand
it comes up later and you might want to return to it at that pointis
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 existswhich is my view, that that is the
only reason for doing thiswhy 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 issueif prior authorisation
operates very differently across the EUand it mightwhat
is the implication of inflow of patients into this country, amongst
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.
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
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
timebecause when it will have its first reading, we will
have a discussion as ministers at the December Health Council
for the first timeI think we need to be very clear and
keep an eye on this. I have forgotten the other question. I am
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 beand 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
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