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
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.
FOR EU ACTION
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
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 paidie
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
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
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