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

Memorandum by the NHS Confederation

  The NHS Confederation is the only independent membership body for the full range of organisations that make up today's NHS. We represent over 95% of NHS organisations as well as a growing number of independent healthcare providers. We have a number of networks which represent sector-specific services including Foundation Trusts, Primary Care, Mental Health, Ambulance Services and the NHS Partners Network.

We also have dedicated teams and steering groups working on behalf of our acute trusts and independent sector providers.

  The NHS Confederation welcomes the opportunity to give evidence to the House of Lords Select Committee on the European Union Sub-Committee G Inquiry into the European Commission's proposed directive on the application of patients' rights in cross-border healthcare.


  1.  The NHS European Office, which is part of the NHS Confederation, is currently conducting a consultation to obtain members' views on the European Commission's proposals for a directive on the application of patients' rights in cross-border healthcare. This exercise should help us to better understand potential implications for the NHS. The following comments are based on our initial analyses of the text, and, pending the outcome of the consultation process, may be subject to change.


  2.  In considering the proposals, it is important to be aware that rulings in the European Court of Justice (ECJ) have already established that patients have certain rights to access healthcare in other EU countries. These rights cannot be removed. There are, however, a number of uncertainties which make the case law difficult to implement in practice. To the extent that it could clarify the present situation, for the benefit of both patients and those delivering health services, we think a directive could be helpful. However, we are concerned that any EU legislation must respect the principles of subsidiarity and proportionality and should not interfere unduly with the organisation, funding, and delivery of healthcare, which remains a national competence.

  3.  We recognise that there may be circumstances where patients could benefit from receiving treatment in another EU member state. However, we know that most patients prefer to be treated close to home. Although some patients will be interested in the possibility of cross-border healthcare, bearing in mind the inconvenience and costs associated with travelling for healthcare and possible language barriers, it seems unlikely that large numbers of UK patients will seek healthcare abroad.

  4.  In view of this, it is important that systems established to provide for and facilitate cross-border healthcare are not disproportionate in scale and cost to the level of cross-border activity and do not have wider, unintended, consequences for health systems as a whole. We do not believe that the promotion of cross-border healthcare should be an objective in itself. Rather, the objective should be to provide clarity about the rules relating to cross-border healthcare so that interested patients are able to make informed decisions within a framework that respects the organisation and structures of different health systems.


  5.  We understand the current EU framework, and the proposals in the draft directive, to be based on the principle that patients should be eligible for reimbursements towards the costs of healthcare received in another EU country only to the extent that they would have received the same healthcare at home. So, for example, if a PCT had decided not to fund a particular treatment for an individual patient, the patient could access that treatment in another EU country, but would have to pay for it themselves and would not be eligible for a reimbursement towards the cost. We think this principle is correct and it is crucial that it is preserved.

  6.  In relation to this, it is important to understand that many health systems, including the NHS, do not have national level eligibility criteria for determining access to particular treatments or a defined "basket of care" which all the people they cover are automatically entitled to receive. The treatment which an individual can receive is often determined at a local level, based on their particular health needs balanced against the health needs and priorities of the wider local population. The directive must provide for such local decision-making processes to continue.

  7.  Where it has been established that a patient is eligible to receive a particular treatment and they elect to receive that treatment abroad, reimbursement is limited to the amount that the same treatment would have cost the home system. The patient must meet costs up front, and must cover costs that would not be incurred if they were treated at home, such as travel costs. If treatment is more expensive abroad, the patient must cover the difference. If, however, treatment is cheaper abroad, the patient cannot be reimbursed more than they have paid—ie they cannot make a profit. We believe this approach is correct, as a patient's choice to be treated outside the UK should not lead to higher costs for the NHS, thereby reducing the resources available for the wider population.

  8.  The draft directive envisages that reimbursements could only be made conditional on having obtained prior authorisation (ie the requirement for a patient to seek the agreement of their home health system to them receiving treatment abroad) in exceptional circumstances. We are disappointed that the draft directive does not recognise the value that prior authorisation systems can offer to patients in terms of providing them with clarity on matters such as what reimbursements they will be eligible for and what costs they will have to meet themselves, arrangements for any after-care needed and what will happen if anything goes wrong.

  9.  It is essential that patients who do seek treatment abroad understand the conditions that will apply, both in terms of quality and safety and financial arrangements. In view of this, we consider that a case could be made for allowing prior authorisation systems to be mandatory for all patients seeking care abroad, provided these systems met criteria such as transparency and proportionality, were simple and straightforward for patients to use, and gave timely responses to requests.

  10.  We are examining the question of when it might be appropriate to refuse prior authorisation as part of our consultation process. Concerns have been raised about patients travelling abroad for treatments with major implications in terms of aftercare or potential complications which may fall upon the NHS. Prior authorisation systems could be useful in such cases in clarifying, for example, whether aftercare would normally be provided by the NHS as part of the "treatment package".

  11.  Other situations when it might be appropriate to restrict a patient's right to travel to obtain healthcare include: patients with a highly contagious and dangerous infectious disease, patients requiring care in a secure psychiatric facility, and prisoners. Any patient refused access to treatment abroad should be able to obtain a clear explanation of how and why the decision had been reached.


  12.  Unless there is a very significant increase in the number of patients accessing cross-border healthcare, which current indications do not suggest, the practical impacts of these proposals on the day-to-day provision of healthcare in the UK are likely to be small, particularly, for example, when compared with the impacts of ongoing trends in migration.

  13.  The exception to this is likely to be for local commissioners, who will need to be able to respond to queries regarding eligibility requirements, level of reimbursements and processes for obtaining prior authorisation, where this is required. Clearly, the nature of the legal framework put in place by the directive will be important in determining how complex and burdensome this will be.

  14.  In our view, a system providing for patients and commissioners to discuss arrangements before treatment is obtained abroad would be preferable. Although this would imply additional work for commissioners prior to treatment being obtained, it should reduce risks for both parties at later stages, eg disputes over reimbursements or whether a treatment was necessary.

  15.  Although not directly affected by provisions on cross-border healthcare, discussions in this area also highlight questions about eligibility to NHS funded healthcare. Under current arrangements, it can be extremely difficult for commissioners to determine an individual's entitlement, for example, in the case of individuals dividing their time between the UK and another EU country.

  16.  There are also challenges, relating to both incoming and outgoing patients, in terms of calculating the "NHS cost" of care, particularly for treatments not subject to tariff, or where packages of care need to be "unbundled". In general, clear guidance on the legal framework and its application in the NHS will be needed to support implementation in NHS organisations.


  17.  The issue of equality of access is challenging. For example, geographical factors will mean that some individuals will be able to access cross-border services more easily than others. Some patients may not be fit, or for other reasons, able, to travel to obtain treatment. Since patients will need to pay for treatment up front, and will normally need to cover travel, accommodation and other costs which would not be incurred if treatment were provided at home, there will be financial barriers which are likely to limit some patients' access to treatment abroad.

  18.  Existing social security arrangements already provide a mechanism (the "E112 referral") under which the NHS directly funds planned treatment in other EU countries. This system is often used for NHS patients whose treatment cannot be provided in the UK, although NHS patients can also apply for an E112 referral in other circumstances. In particular, if a patient is experiencing "undue delay" in receiving healthcare under the NHS and they wish to be treated abroad an E112 referral cannot be refused.

  19.  Where treatment can be provided in a timely manner in the UK and patients are deciding for personal reasons to seek treatment in another EU country, we think it is reasonable that, as a general rule, they should be responsible for costs which would not be incurred if they received NHS-funded treatment in the UK.


  20.  All patients should be able to obtain information about their options, including treatment abroad, in a format that is clear and understandable to them, and enables them to make informed decisions about their healthcare. Ideally, information on cross-border healthcare should not be provided in isolation, but as part of a wider strategy of information for patients and the public about health and healthcare.

  21.  As such, it is important to place the responsibility for provision of information on cross-border healthcare at the appropriate level and be realistic about what sort of information different actors will be able to provide. For example, the idea of a network of national contact points may be a useful approach, but it is important to be clear that these contact points cannot give personal advice on the best care, or act as advocates, for individual patients.

  22.  Conversely, whilst a patient's own clinician is likely to be best placed to help them make choices about their care, and their local NHS commissioners should be able to provide advice on issues such as local eligibility criteria, it would be unreasonable to expect either to give detailed advice on how other countries' health systems operate.

  23.  It is also important that provisions relating to the availability of information and data collection on cross-border healthcare should not place new costly, bureaucratic burdens on NHS organisations.


  24.  The Commission's proposals also include a number of provisions designed to promote cooperation between EU member states, in areas such as the establishment of European reference networks of healthcare providers, e-health and the management of new health technologies. These three areas are already the subject of existing cooperation at EU level, and we have not yet seen evidence to suggest that it is necessary and appropriate to provide a legal basis for this work. We will be considering what the implications of doing this might be, in particular, with reference to subsidiarity.

25 September 2008

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