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

Examination of Witnesses (Questions 60-79)

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

30 OCTOBER 2008

  Q60  Baroness Neuberger: Which they might do on transplants, for instance.

  Ms Primarolo: We would want it to be set in the conditions about taking decisions on the capacity of whether we could accept that patient into a Trust. Obviously, once they have been accepted, their treatment has to operate on a non discriminatory basis within the Health Service. Emergencies do happen and people do not get treated quite as quickly as they wanted to. We are consulting on how we would make sure it is non discriminatory once they are in the system, but have a clear view about capacity, because our first duty is to the overwhelming majority and that is how we plan and manage the Health Service nationally. This is, of course, for all of the UK, so the devolved administrations are also part of this consultation. I speak regularly, and my officials speak very regularly, to their officials about their views on this. We just do not know. Every health system will think they are the best and we are going to pull in loads of people. I certainly feel that and I think we need to consider it.

  Q61  Baroness Neuberger: I think it is going to be complicated. Can I move on to equity. One of the things that appears to be the case is that there will be a requirement for people who are coming from other countries or going to other countries to pay for their treatment upfront and then claim reimbursement. All the evidence that we have had—virtually all, anyway—has said that this is really inequitable and that the people who do not have the resources to provide the money upfront are going to be stuck. We wondered what you felt about this and, also, about the patients who go to other countries, get the amount of money that was available in their own country for that treatment, and then top-up? How is that going to work? What is your view, particularly as we have debate on topping-up going on anyway?

  Ms Primarolo: I will not be drawn, at the moment, into top-up, if you do not mind. First, the Member State is responsible for the payment of the treatment that they decide they are going to pay for their national to have in another Member State. We are planning to decide it on the basis of professional diagnosis, clinical requirement, treatment. I think there are two levels of equity working here and they are difficult to put together. The first is for the overwhelming number of patients who will stay in the NHS. We have to make sure that if we have patients travelling in—the points you were asking just now—that does not affect our capacity to offer them the treatment to which they are entitled. For those who do have prior authorisation and travel, there are then two issues, and they are issues now. One is: Is there a discrimination between those who can afford to pay upfront and those who cannot? What does that mean and what should we do about it? We have individual equity but then we have the equity of all of us, of our community. Travel is another issue. At the moment, we reimburse, and it works, but we are consulting and asking for views on this[3]. Of course, on the other side, we have to be mindful who we would pay it to if we did pay it upfront. That takes in some very difficult areas of fraud and how we would be sure they would go. Then there is the question of subsequent complications when they are back in the UK. Of course, on what some people call the "rescue principle", you are in the UK and we treat you regardless. I think we still need to do a lot of discussion around this point, because we could end up with only the wealthy having rights to access and that clearly would not be acceptable. We would not want to deny them because we know the right has to be provided. It is provided now. I cannot give you a definitive answer. We are asking and I am concerned about how we would start issuing money to individuals before they have their treatment.

  Q62Chairman: We will continue to ask these questions.

  Ms Primarolo: Yes. It is vital.

  Chairman: Whether we come up with anything helpful, we will continue.

  Q63  Lord Lea of Crondall: Minister, I can understand why it is very, very complex, but you have used the phrase a couple of times "States will determine the flow," or words to that effect, and I can understand how we can determine the flow authorising payment outwards, but at the end of the question we are asking about a significant net inflow and I cannot quite follow the process of determining, in other words rationing in some way, or making decisions on the flow inwards. Either you have a system set up with criteria and then it is automaticity after that, or somebody is going to say case-by-case, "Yes, you can come"; "No, you can't." Could you comment more on the inward side of it. I do not see how you can determine a flow.

  Ms Primarolo: Yes, that is a difficult issue, but the Member State receiving the patient can refuse to take the patient.

  Q64  Lord Lea of Crondall: Without going to the ECJ?

  Ms Primarolo: That is one of the things we need to get clear in the draft Directive negotiations, that in order to protect our own capacities we would have to have the ability to say, "We cannot take your patient, sorry, because all our resources are being used in treating our own and we have no spare." It may need to be done on a case-by-case basis because it would tend to be the specialist treatments. For instance, we have put a huge amount of effort into reducing treatment times for cancer, and speed from early detection through diagnosis into treatment. We could not have that being disrupted for everyone else by an inflow of people who wanted to use that service as well. That is one of the things, I am very clear—and I appreciate you are drawing me back to it—that we will need to establish in a better way in the draft Directive.

  Chairman: We have another question about national structures that Lady Perry wants to ask.

  Q65  Baroness Perry of Southwark: I think you have answered part of my question and the question from Lord Lea is very relevant to this. At the present moment, access to care is determined at a local level, not at a national level, and we have no national eligibility criteria at all. Do you think that Article 6 will require the NHS to adopt national eligibility criteria? What impact would this have locally? How would you plan to calculate and publicise the cost of care, as Article 6 requires?

  Ms Primarolo: We do have eligibility for us inside the UK, in terms of it is determined by diagnosis, identification of clinical need, and treatment. There is already a mesh between setting the standards and the requirements for the NHS and then the local determination. We can see no reason, in determining people's access inside the UK, why that would be questioned. The European Union has no locus on telling health systems what their standards should be or what their criteria should be. We are not seeking to determine the criteria for Germany or France; their health systems determine that. The only interconnection is that if a patient has an entitlement to something in Germany and chooses to have the treatment via this mechanism in the UK, our consideration is one of are we going to take that patient on the point of capacity and ability to treat.

  Q66  Baroness Perry of Southwark: You used the word "our". Who would that our be? If somebody in Germany was referred by their own consultant to the UK, would there be any mechanism whereby the whole of the UK structure could be looked at, to say, "We couldn't take him in Newcastle, but we might be able to take him in Hull" or something like that? Or would they have to apply to a specific consultant in a specific hospital? If that consultant said, "I'm sorry, the queue is already too long," would they be able to be referred around, to say, "We've got vacancies elsewhere." How would it work? Who would make that decision?

  Ms Primarolo: The patient has already decided where they want to be treated and by whom, so they will specify. They will not come to the UK and say, "We have a cancer patient, where can you fit them in for rapid treatment across the UK?" It will come in as a specific request for a specific consultant in a specific hospital, who will determine whether they have the capacity to take that patient.

  Q67  Baroness Perry of Southwark: And Article 6 does guarantee that it will be done that way.

  Ms Primarolo: I believe so, but we will obviously need to make sure that it is absolutely clear. That is the important point about the referral pattern that will exist, and at what point it will enter the UK system, if it did, for a patient in another Member State. That happens now. People ask to come and be treated in particular hospitals. Our own patients do it in discussion with their GPs. That is why this idea of having a national requirement on eligibility or criteria is not necessary, because this draft Directive is about individuals not systems.

  Q68  Chairman: In some specialisms it already happens, does it not, that there are exchanges?

  Ms Primarolo: Yes.

  Chairman: Minister, I am aware that the time is running on. I would remind the Committee of that because we do want to get through a lot of questions with you. This is extremely valuable. I am going to move on to Lord Kirkwood, because one of our key concerns is: How do they know?

  Q69  Lord Kirkwood of Kirkhope: Indeed. Article 10 of the draft Directive talks about an obligation to provide information. Would you confirm that is merely on request. There is no obligation to promote any of this new service. I hope that is a yes or no answer.

  Ms Primarolo: There is no obligation to promote it. I was looking for all the sites—I have a list of them—but, forgive me, I cannot find it. Because of the Watts case, there is already information and access via NHS references that individuals can access to know how they go about seeking prior authorisation to be treated somewhere else, but we are not obliged to promote it and we would not.

  Q70  Lord Kirkwood of Kirkhope: That is all I need to know.

  Ms Primarolo: I just want to be clear. We would not keep the patients' rights a secret from them, because that would not be permitted. They are entitled to know their rights, but it is not something where we will have posters up everywhere saying, "Would you like to go to France?" I am sure lots would, but not for treatment!

  Q71  Lord Kirkwood of Kirkhope: Could I refer you very briefly to your written evidence, which is very helpful. In paragraph 18 you say, "Nevertheless, we have concerns about how much practical information about treatment options in other states the NHS will be able to provide." If we are talking about practical information, how on earth is the NHS expected to know what is happening in Luxembourg?

  Ms Primarolo: That is the very big question and you are quite right to settle on it. This is my view and I would be interested to hear whether you think it is incorrect. If one of our citizens says that they want to go and be treated somewhere else and they are in the prior authorisation process, clearly we will want to provide as much information as we can to them of the risks as well as the opportunities: the risk that you are away from home and these health systems are not exactly the same as the UK; that you may not be spoken to in English all the time. That does raise the question of how much information, once an individual has asked to be referred somewhere else, we feel we can give them, and then how we convey to them what we are unable to tell them. Therefore, it is ultimately up to them. Also, they will have to give us permission to release their records, and I think we need to do that on consent, on an individual basis. Our ability to know what is going on somewhere else is going to be difficult, of course, and it will be incomplete, and we will have to convey that. I think we have a duty to do that. If you think not, please say. It will not be in the Directive, it is how we might try to apply it. There are not the same rights, there are not the same standards, there are not the same styles of treatment, there is not the same access to treatment.

  Q72  Lord Kirkwood of Kirkhope: You can give us an assurance that this is something you are focused on and you are going to continue to keep up the pressure to try to get a better understanding of exactly what is expected of Member States in this new system.

  Ms Primarolo: Yes. And what is not expected of them because it is not deliverable. You can have headline messages that look very sensible, but they are absolutely not deliverable and we need to avoid those.

  Q73  Lord Kirkwood of Kirkhope: That is very helpful. You might be able to help us with notes on these two things. The Committee would like to have a better understanding of what the Commission are talking about when they refer to a "standard Community format". I do not know what that would look like. Does the department have an understanding of what it is supposed to provide and what it would look like and whether we would be in favour of it? I have a second point in terms of national contact points. I have looked at the papers and I have only a very vague understanding of what the Commission have in mind with these things. With the exigency of time facing us, it may be that a note to the Committee would suffice, but maybe you could deal with it very briefly in the evidence this morning or take it away and send us a note.

  Ms Primarolo: Are you referring here to the question of the issue of prescriptions, the e-health—

  Lord Kirkwood of Kirkhope: No, my understanding is that it is only in relation to the provision of information.

  Q74  Chairman: Could I ask that the Minister is allowed to take this away, in view of the time, as you suggest. Maybe your officials could let us have a note on this.

  Ms Primarolo: Yes.

  Chairman: That would give us an opportunity to move on.

  Lord Kirkwood of Kirkhope: It is just clarification. I do not know how difficult it is, but it would be very helpful to get it clarified.

  Q75  Chairman: Thank you very much. Of course all this takes us straight on to this question of liability and redress, the question of what information they should have, what our expectations are, and what happens to them when they get there. To what extent are you content that the UK meets these requirements already? How content are you with the UK system of discretionary indemnity?—and we have to say that we have had critical evidence about that. Could you explain what you are referring to in paragraph 18 of your evidence when you state that, "Patients will need to ensure they have adequate insurance arrangements to cover their treatment"? That sounds like a straightforward sentence but you can understand why it needs unpacking.

  Ms Primarolo: Nothing is straightforward here.

  Q76  Chairman: If all Member States apply Article 5(1)(d) and (e), surely there should not be a need for such insurance.

  Ms Primarolo: There are differences. The NHS has a system for complaints and then we have liability requirements. These are not the same across all of the European Union. In particular, in the UK, when items become actionable for neglect or harm that leads to compensation. Our view is that Article 5 is not clear enough with regards to how complaints, liability and negligence fit together. We do know—and this comes back to the point I was making about information to patients—that the patient will be within the liability and the legal framework of the Member State in which they are treated. They will not be within the UK. It does not follow them. Therefore, it may be that they will not have as much from cover for those items as in the UK. We need to try to be clear on the limits, so that people at least are aware and have the opportunity, if they wish to, to insure themselves further in those circumstances. Because they are not in the UK system in Germany.

  Q77  Chairman: I can hear the patient saying, "But this consultant gave me the information and I then went to this country where things went seriously wrong. What is the liability of my consultant who suggested I should go?" Is that where we need the clarity here?

  Ms Primarolo: We need the clarity that this is not a referral. The consultant will need to be very clear on that. It is an individual's choice to exercise a right to access outside the UK. We are not providing for new rights—coming back to what maybe Lord Kirkwood was trying to get to. This draft Directive does not provide new rights; it codifies what already operates. We are not creating a European-wide health service whereby consultants can decide to refer somebody somewhere else.

  Q78  Chairman: I think in your earlier evidence you said that a clinician would have to agree that the treatment was necessary and that the clinician who was going to receive was an appropriate clinician. I am only seeking the clarification which I think is what you are really looking for in the Directive.

  Ms Primarolo: There are two separate issues here. One is that the treatment that is determined is determined within the United Kingdom framework. All of us are treated exactly the same, and that is how we reach the point where you have clinical need and what your treatment is. It is entirely separate—but important for us, because of the way our health system works—from the proposition that this draft Directive is seeking to provide for, which the case law provides for, which is that an individual can choose to receive payment and have that treatment somewhere else. It is an individual's choice. It is not about systems. It is not about referral. It is not about saying, "Here is a European-wide health service, I will take my money and go somewhere else," as inside the NHS. That is why these very difficult issues of insurance, standards, negligence, all the things that we have been talking about, need to be clarified. This is the first draft. The principles, as I said at the beginning, are okay, and we are happy with them—some we are not, and we are doing further negotiation—but even those principles we need to be clear exactly what it means. In terms of the additional requirement on indemnity, as I understand it the current framework for legislation has been put in place and does not apply in that sense because it reserves it for the Member State. I know there is some discussion around this and we will continue to look at that, but we think that is a separate issue. I am sorry I am giving a rather long answer, but it is very important that people understand that it is not referral and that members of the public understand this. They are making an individual choice and they take the responsibility for stepping outside the NHS. We cannot do anything about that. If they come back and there are complications, without question we will pick that up—and that is something else we are going to have to sort out: we will not say, "No, you had that done somewhere else"—but there will need to be some clarification here.

  Chairman: That is extremely helpful. It gives us some questions too to ask the people who are raising issues around this. Lady Gale is going to ask questions about language and after-care.

  Q79  Baroness Gale: Good morning, Minister. I am going to ask about practical concerns, although I think most of us this morning have been dealing with practical matters as well, on after-care and language. In your evidence you acknowledge the practical impacts of the Directive and you consider that after-care should be the responsibility of the Member State of treatment but follow-up care could be provided by the Member State of affiliation. Are you seeking to clarify in the Directive where these responsibilities lie? As far as language is concerned, you say that the patient will need to make adequate arrangements "for addressing any language difficulties". What level of obligation do you consider should fall on the patient to overcome any problems relating to language and what responsibility should lie with the medical provider?

  Ms Primarolo: On the question of the immediate after-care, I think it is not unreasonable and we can all accept that immediate after-care comes to be done where you have had the treatment in the first place. That is what we would expect. But the draft Directive is not particularly clear and I also appreciate that working out the language around providing for that could be somewhat difficult. Where there is difficulty, it is in the consultation. That is why we are doing the consultation document in asking some questions around that issue of after-care. What do we mean by after-care? Immediately? What if you have something and your after-care is that you should be in intensive care? What if a few days after you need intensive care because a complication develops? I would like greater clarity, I do not know how to get it. I think it is fraught with difficulty and that is why we are consulting on it. But at the moment I do not think it is unreasonable to say we would expect a certain proportion of that after-care to be located with the patient when they have the treatment in the first place. On the question of requirements for translators, the Health Service itself plans for that now. Again, it is in the consultation. But, personally, I am not minded to put this in as a blanket requirement. I can see the difficulties, but if we start from the proposition that an individual is making that choice, that is one of the issues maybe they would need to consider. It is working out this very difficult line of codifying what is a right now. I make no bones about it: I am intent on making sure—I would say this—the National Health Service is the best service. I want it protected. I do not want to leave it open to further legal challenge if I can avoid it, and I do not want to extend rights because capacity planning and delivering the service that the overwhelming number of citizens want close to home could be undermined by this. I suppose that you could say that I do not think we should provide a blanket requirement, but if somebody comes up with a really convincing case then of course I will look at it. But it is really important to understand that this is an individual choosing something. If an individual chooses to go private, we do not have all these things about what is the NHS going to do. They are stepping outside our system with the right to take the money.

3   This remark deals with equity and the fact that we currently reimburse travel for patients in the UK with limited means. We are consulting on the issue of equity in our consultation. Back

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