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

CHAPTER 2: Overall Objective and the need for action

The issue

16.  In this chapter we discuss the need for action in the field of cross-border healthcare within the European Union and consider what the objectives of this action should be and which areas will require particular attention to ensure that they are not adversely affected by the new legislation. We also discuss review of the Directive after its implementation.

Contents of the proposal

17.  The proposal's aim is set out in Article 1, which provides that "This Directive establishes a general framework for the provision of safe, high quality and efficient cross-border healthcare."[13]

18.  The Commission's Explanatory Memorandum identified a need to increase the clarity of the ECJ rulings on cross-border healthcare, in order to ensure a more general and effective application of freedoms to receive and provide health services (as discussed in Chapter 1).[14]

19.  Based on this case law, the Directive aims to ensure a clear and transparent framework for the provision of cross-border healthcare within the EU. The objectives of this framework will be to provide sufficient clarity about patients' rights to be reimbursed for healthcare provided in other Member States and to ensure that the necessary requirements for high-quality, safe and efficient treatment are ensured for cross-border care.[15]

20.  The Directive provides that within five years of its transposition, the Commission shall submit a report on the operation of the Directive to the European Parliament and the Council. To assist with the preparation of the report, Member States are required to communicate any measure they have introduced, modified or maintained with a view to implement the procedures laid down in Articles 8 and 9 (on prior authorisation).[16]

Need for action

21.  Much of the evidence we received supported the Commission's view that there was a need for increased clarity on cross-border healthcare, particularly in view of the ten-year history of ECJ case law in this area (as discussed in Chapter 1). (QQ 2, 48, 140, 189, 236, pp 16-17, 54, 60, 61, 75, 88, 91, 115, 159, 166)

22.  The Government suggested that the case law had created uncertainty in several areas, including over reimbursement levels, responsibility for determining entitlements from state systems, the rules for refusing prior authorisation and the principles of clear and transparent costing systems. (p 16) However, the supplementary evidence from Dawn Primarolo MP, Minister of State at the Department of Health, made clear that current levels of cross-border movement for healthcare are relatively low: 552 E112 forms were issued to UK Citizens for treatment abroad in 2007. (pp 31-33) In addition, the Government's Impact Assessment indicated that an estimated 50,000 people per year currently travel from the UK to other European countries for "health reasons".[17] No figures on the inflow of patients travelling to the UK from other EU countries to receive medical treatment could be obtained during our Inquiry.

23.  The British Dental Association stated that "Case law … is an unsatisfactory way of protecting rights in a situation where an increasing, if relatively small, number of Community citizens wish to take advantage of freedom of movement and to exercise choice … it is important that their rights and responsibilities are clear … and that they are appropriately protected." (p 115)

24.  The need for clarity about the patient's own responsibility was also highlighted by the Minister: "We need the clarity that this is not a referral … They [the patient] are making an individual choice and they take the responsibility for stepping outside the NHS." (QQ 77-78) This point was also made by the NHS Confederation who emphasised the additional degree of personal responsibility that patients would take on when choosing to access cross-border healthcare. (p 105)

25.  The Royal College of Nursing (RCN) recognised that the lack of clarity resulting from the ECJ case law impacts upon professionals as well as patients, and the Patient Liaison Group of the Royal College of Surgeons highlighted the need to ensure fairness between the Member States through action at EU-level, so that none of them would become overwhelmed by cross-border patients. This is particularly important in light of the fact that no comprehensive data on cross-border healthcare are currently available, making it difficult to predict what the levels of cross-border movement will be (see paragraph 9). (pp 54, 91)

26.  Some witnesses laid emphasis on wider objectives than just legal certainty. The Law Society supported a particular benefit of the new legislation: to remove the barriers patients are faced with in seeking cross-border healthcare. (p 166) In relation to this objective, the Association of British Insurers stressed that "There is a distinction between removing barriers to accessing healthcare and facilitating access to the extent that it undermines individual Member States' healthcare systems" and the RCN highlighted the need to ensure that domestic provision and financing are not undermined by the Directive. (pp 91, 159, Q 242)

27.  Much of the evidence we received suggested that the proposal should also include the safe availability of healthcare across borders within its aims, taking particular account of patient safety and redress. (pp 72, 75, 117, 166) The British Medical Association in particular were of the view that patient safety and the provision of high-quality clinical care should be the overriding priorities of any new legislation and were supported in this view by the General Medical Council and the Nursing and Midwifery Council who both stressed the importance of strengthening regulation across the EU to improve patient safety. (p 117, QQ 234, 236)

Need for caution

28.  Despite widespread consensus about the need to clarify the case law on cross-border healthcare, witnesses expressed concern about the overall scope of the Directive. The Minister cautioned that "The principle is to codify the case law that we have now and not to open up any other areas … 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." (Q 48) The NHS Confederation supported this point: "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". (p 88)

29.  Unite believed that the Directive went beyond patients' rights and both highlighted an area which they felt should be excluded from the overall objective for EU-level action in cross-border healthcare: the creation of an EU single market in healthcare services. (p 135) UNISON considered that "the Commission has not merely been seeking to address the rights of patients, but using the exercise to increase the use of market mechanisms in European healthcare". Unite agreed, fearing that the Directive as it currently stands constitutes an attempt to create a single market in healthcare. (pp 132, 135)

30.  The RCN was concerned about the tension between the objectives of the single European market for the free movement of individuals and services (the treaty base for this proposal) and the need for national health systems to plan a whole service within limited budgets and to ensure equity. (Q 242)

31.  Proportionality[18] was also recognised as an issue in relation to any action used to achieve the main objectives of the proposal. The NHS Confederation stressed that in view of the small numbers of patients availing themselves of cross-border healthcare (see paragraph 22), the systems introduced to address this should not be disproportionate in scale or costs. This was recognised by the British Medical Association as a problem between balancing patients' rights and patient-centred treatments with the fundamental NHS principles, including equity, which was one of the principles laid down by EU Health Ministers in 2006 (see Box 2). PA Consulting questioned whether, in this context, the benefit to the small number of patients was worth the potential disruption to Member States' health systems and the additional costs that would be incurred. (pp 2, 88, Q 286)

Forecasting levels of demand

32.  Conversely, PA Consulting suggested that the increased patient choice created by the Directive would alter hospitals' incentives. If patients could move away from their local hospital (for example if there were long waiting lists or they did not perceive the care to be of high quality), that would create a strong incentive for the hospital to address those problems, especially in systems where funds went with the patient. PA Consulting suggested that orthopaedic departments in the UK—some of which have long waiting lists—might see more patients going abroad to receive treatment. They also pointed out that these effects would not necessarily be permanent and could be self-correcting, since the relevant hospital or department would then work to reduce its waiting lists, in which case patients would no longer travel to other healthcare facilities for treatment. (Q 4)

33.  The Minister reported that it is difficult to foresee what the inflow of patients into the UK may be under the Directive and that there are questions around how this would be sustainable and reasonable. (Q 58) The Patient Liaison Group of the Royal College of Surgeons (PLG) considered that it would not be sufficient to assume that current levels of patient demand will be the norm once the Directive comes into force. (Q 143) They highlighted the importance of these flows to healthcare delivery, suggesting that heavy demand for treatment in some countries could be disadvantageous to local populations. (p 53) Travel across the border between Northern Ireland and the Republic was used as an example by the British Medical Association who stated "it is going to be crucial there to work out what those numbers will be to make sure that the healthcare services on both sides of the border are not destabilised." (Q 287)

34.  The PLG stressed that "you will find out what many of the issues are only once it is underway, and I do not know if that is the right way round." (Q 155) One way in which the issues may be teased out is through the Commission's proposed review of the Directive within five years of adoption. The EU Health Commissioner, Androulla Vassiliou, stressed that collection of comparable data would be very important for the successful review of the Directive. She believed that five years was a reasonable time to allow for the Directive to be fully developed in order that reliable data could be obtained. However, she assured us that if the Member States felt a review should happen earlier, the Commission would not object. (Q 400)

Conclusions and recommendations

35.  Ten years of case law on cross-border healthcare have not provided the clarity needed by both patients and healthcare providers. We therefore agree that the main rationale for the Directive should be to clarify the application of treaty provisions to health services.

36.  Whilst we recognise the need for action on these grounds, the response must strike a proportionate balance between individual choice on the one hand and effective delivery of public health provision, within limited budgets and reflecting different national and sub-national practices, on the other. Failure to strike a balance between these two objectives could be detrimental for all patients.

37.  We take the view that the fundamental objective of the proposal should be to ensure that a framework is in place to deliver the availability of healthcare across borders but without excessive complexity and without harming the delivery of national health systems at a local level, and taking particular account of patient safety and redress.

38.  We recall the set of overarching values underlying the delivery of health services throughout the EU that were agreed by EU Health Ministers in 2006 (see Box 2). This also finds expression in recitals 11 and 12 of the Directive. We consider above all that Member States must ensure that the principle of equity, within the terms of Member States' own health systems, underpins the negotiation and implementation of the Directive.

39.  We note the argument that the introduction of patient choice may force hospitals to become much more responsive to patient needs and acknowledge that this may provoke adjustments to the services offered by Member States through the mechanisms and the incentives that choice creates. Choice is welcome if it has a positive effect on the efficient delivery of health services locally. In particular, we recognise that the proposal could have a positive effect where there are particular specialities with very long waiting lists. However, we recommend that effective delivery at the local level must remain a key objective.

40.  It is clear that it will not be possible to identify the Directive's impact until it has been transposed. We therefore conclude that the Directive should be reviewed within three rather than five years after it comes into effect, in order that Member States can learn lessons from the experiences of cross-border healthcare sooner rather than later.

41.  Given the importance of patient inflows and outflows to the stable and secure delivery of healthcare in Member States, we believe that the report produced by the Commission should include information on patient inflows and outflows.

13   (COM (2008) 414) Article 1 Back

14   (COM (2008) 414) (p2) Back

15   (COM (2008) 414) (p4) Back

16   (COM (2008) 414) Article 20 Back

17 Back

18   This is not a reference to the principle of proportionality as defined in Article 5 of the Treaty establishing the European Community: "Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty". Back

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