Image via Wikipedia
Implications of the recent EU Directive on cross-border healthcare
EU law clarifying the right of patients to receive healthcare in EUmember states adopted
Directive will extend patient choice for medical treatment beyond national borders….
but will take some time to take effect, particularly as in UK the outcome will certainly be a significant amount of patients wanting to be treated abroad – whereas other EU countries know that they could gain income from NHS patients.
What it’s all about
For some time UK patients, with enough time and patience, were occasionally able to get their local PCT to fund treatment abroad. The EU got involved, and now there has come a Directive which means that it should be easier for those patients who can persuade their GPs that they would receive better, more up-to-date treatment in certain European countries, to receive NHS funding, now they have won the right to ask for treatment to be funded by NHS.
Hoever, be aware you will still have to find travelling expenses, and possibly accommodation (except in certain circumstances).
This Directive has come about because, as the EU says ……. the landmark “Watts” case which concerned the NHS directly. In 2003 Mrs Watts, a UK patient who had gone to France to seek treatment to avoid a long waiting time in the NHS, and had then sought reimbursement of the cost of her treatment from her local primary care trust, had her case referred to the European Court of Justice. In 2006 this Court ruled that she was entitled to the treatment and that the NHS should pay.
Now, UK cancer patients in particular can ask for better treatment in Europe to be funded by the NHS. BUT – first you will have to negotiate the mine-field of NHS commissioning, and commissioners are not going to open the purse-strings very readily.
- The right of patients to receive healthcare in another EU member state, and to be reimbursed by their country’s healthcare
- System has been established by several decisions of the European Court of Justice.The recently adopted EU Directive will clarify how this right is implemented in practice.
- Many questions arise on how the rules will be implemented on the ground. The NHS will be helped by organisations to understand them and to ensure that their views are heard throughout the implementation process.
Key provisions in the EU Directive
The rationale underpinning the Directive is that it should be as easy as possible for patients who want to access healthcare abroad to do so, subject to the same conditions which apply when accessing treatment at home. (In practice this means your GP must help you to go abroad for treatment, if there is a valid reason).
Therefore, as well as restating the existing rights established by the European Court of Justice, the Directive builds on them to provide clarity on the rules and processes applicable for patients who want to seek healthcare abroad.
Alongside this, the Directive encourages cooperation between member states in a number of areas related to cross-border healthcare, such as:
• the recognition of medical prescriptions filled out in other member states (in practice I have found this generally works well already)
• cooperation between providers, especially in the area of rare diseases
• the use of e-health for the transfer of patients’ records between countries (bit difficult for us – I wouldn’t trust this to NHS at the moment!)
• the assessment of health technologies.
The provisions in the Directive of key importance from an NHS are:
- Determining what treatment a patient can receive
- The Directive clarifies the rights that patients have to access healthcare in another European country and to receive reimbursement towards the costs
- quality and safety standards will apply, and what to do if anything goes wrong.
- It will also end the uncertainty that commissioners currently face over decisions about what care patients can receive abroad, while allowing the NHS to maintain control over patients’ entitlements.
On the provider side, the rules will offer opportunities to increase income by providing services to EU patients when capacity allows.
It is worthwhile noting that,alongside this new Directive, a separate EU mechanism for patients to obtain planned
treatment in another European country at the expense of their home healthcare system already exists under longstanding EU regulations on the coordination of social security schemes (the ‘S2 referral’ – formerly known as
E112). The difference betweenthe two routes to cross-border healthcare is not always clear cut.
In principle, the Regulation on the coordination of social security schemes governs the following situations:
- health cover of UK nationals who are resident abroad;
- commissioners’ decisions to refer patients to another EU country,
- for example, if certain treatment cannot be provided in the UK or in case of ‘undue delay’; as well aspatients needing emergency care during a stay abroad.
The new Directive, reflecting freedom of movement principles under the EU Treaty, goes further.
It provides a legal framework to apply to situations where a patient takes a personal decision to travel abroad to receive healthcare.
Taken together, these court cases have established that patients have certain rights in relation to cross-border healthcare.
However, there were a number of uncertainties around the case law which made it confusing for patients and difficult for health systems to implement in practice. For example, it was not clear when or if health systems could apply
a system of prior authorisation or what levels of reimbursement should apply. The proposed Directive sought to clarify the situation, for the benefit of both patients and those managing health services.
After a lengthy EU decision making process, the Directive was formally adopted at EU level in March 2011. The NHS European Office engaged significantly with the proposals throughout the process, briefing EU decision makers on NHS views and ensuring that the rules will not impact negatively on the NHS.
The NHS European Office says, “thanks to our extensive lobbyingwe are pleased with the agreed text. The Directive will help patients to make informed decisions about cross-border healthcare by providing clarity on matters such as:
- what reimbursements they will be eligible for
- what costs they will have to meet themselves
Patient choice beyond borders cannot be made conditional on the use of this system and patients will still be entitled to seek reimbursements for treatment that they have already received.
Determining costs and the level of reimbursement
Under the Directive, patients can seek any healthcare (including private care) in another European country that is th same as, or equivalent to, a service that would have been provided to the patient under the NHS.
The Directive allows for two possible systems of payment of crossborder healthcare costs:
- either patients pay up-front and are then reimbursed by their local commissioners;
- or commissioners pay the provider abroad directly.
In any event, commissioners will not be required to pay more than the cost of that treatment if provided by the NHS.
However, it is more than likely that the cost may well be LESS – hospitals and health services in Europe may not be as s greedy as the NHS. e.g. I needed a DXA Scan – in Italy this could have cost me £40 in a modern unit; in London my insurers would pay the NHS £120 for a scan in a scruffy basement room.
- there is no requirement for commissioners to pay travel, accommodation or other expenses that would not be covered if treatment were provided in the home country. This means that the patient would normally need to cover these costs, as well as any difference in the cost of their treatment, themselves.
- Warning! You may not be allowed to travel by air, and if you do, you will be sensible to pay for Business Class travel NOT go by budget airline.
- Nevertheless, commissioners may decide to pay additional related costs, such as accommodation and travel costs, for individual patients’healthcare. Prior authorisation is only possible for healthcare which is subject to planning requirements and which involves at least one night in hospital, or requires the use of highly specialised and cost-intensive medical equipment.
- Authorisation can only be refused in limited circumstances listed in the Directive and decisions have to be taken in an objective and non-discriminatory manner. For example, authorisation could be refused when the patient would be exposed to a very high safety risk that cannot be regarded as acceptable.
- It is important to emphasise that authorisation cannot be refused where a patient is experiencing ‘undue delay’ in receiving treatment under the NHS. While there is no formal definition of ‘undue delay’, the European Court has stressed that judgments must be based on a clinical assessment of what is a medically acceptable period for the individual clinical circumstances of the patient, and that this assessment needs to be kept under review while the patient is waiting for treatment.
- Significantly, the European Court has said that offering treatment within a national waiting time target does not necessarily avoid ‘undue delay’.
- For other types of healthcare, a voluntary system of prior notification can be introduced to encourage patients to inform their commissioners of their intention to receive healthcare abroad and to discuss what reimbursements they will be entitled to. It should be noted, however, that reimbursement of treatment that the patient would have been entitled to at home. It confirms that it is always the home health system that decides what healthcare is available to its citizens, regardless of whether they are treated at home or abroad.
- It also recognises that patients wishing to receive cross-border healthcare can be subject to the same ‘formalities’ as patients seeking healthcare in the NHS. This would include, for example, requiring that a patient seeks GP referral to access specialist care. This provision is particularly important for the NHS which, as opposed to social insurance systems, does not have a basket of healthcare to which all patients are entitled, but rather makes decisions on eligibility locally, taking into account the circumstances of individual patients.
- N.B. Talking to officials this could well be the stumbling block for UK patients seeking care abroad. Commissioners have told me that if a patient seeks treatment abroad (perhaps for a new procedure that NHS hospitals don’t offer) persmission could be refused as procedure is not available in Britain. This seems to negate the object of going abroad, to receive better treatment than one can receive in UK.
- Authorising patients to receive treatment abroad, The Directive allows member states the option of introducing
a system of prior authorisation for patients seeking cross-border ‘Commissioners will not be required to pay more than the cost of that treatment if provided by the NHS.
- Authorisation cannot be refused where a patient is experiencing ‘undue delay’ in receiving treatment under the NHS.
Significantly, the European Court has said that offering treatment within a national waiting time target does not necessarily avoid ‘undue delay’’
Key points for commissioners
• NHS patients have the right to seek in another European country any healthcare that they would have received under the NHS and to be reimbursed by their commissioner up to the amount that their treatment would have cost the NHS to provide.
• The patient pays the difference if care abroad is more expensive. The patient would also normally have to cover travel and other costs, unless their commissioner decides to cover these additional costs on an individual basis.
• The Directive does not give NHS patients rights to reimbursement towards the cost of treatment that they would not have received under the NHS.
• Patients seeking treatment abroad can be made subject to the same conditions that apply when accessing treatment under the NHS. For example, a patient who wanted to see a specialist abroad would still need GP referral.
• Prior authorisation systems (where a patient makes a request to be treated abroad before they obtain treatment) may only be introduced for healthcare which is subject to planning requirements and which involves at least one night in hospital, or requires the use of highly specialised and cost-intensive medical equipment.
• Prior authorisation cannot be refused if a patient is experiencing (based on their individual circumstances) ‘undue delay’ in receiving NHS care.
• Commissioners have a duty to ensure that patients who receive crossborder healthcare can have access to follow-up healthcare if and as required when they travel back to the UK.
• Commissioners may decide to pay directly for healthcare in another European country, if this would benefit the patient. This would not apply to treatment provided in other European countries, even where this treatment was provided to NHS patients. Instead, it would be the provider country’s equivalent system for ensuring quality and
safety that would apply. Similarly, NHS hospitals treating patients from other EU countries would do so to NHS standards.
Quality and safety standards
The Directive confirms that the legislation and requirements that apply on matters such as quality, safety and liability are those of the country where the healthcare is being provided. This means that the standards set by the Care Quality Commission.
As the NHS is based on a system where the vast majority of healthcare is free at the point of use, one of the biggest issues around cross-border healthcare is how to determine domestic costs. The text states that each country should have a transparent mechanism for calculating the level of reimbursement a patient is entitled to if they receive healthcare abroad, but the detail of this is left for each country to determine.
For healthcare which is not covered by an NHS tariff, defining the level of reimbursement could be particularly challenging when prices are set by commissioners or subject to negotiations between commissioners and providers, and therefore subject to significant local variations. Furthermore, a tariff may cover a package of care, rather than a simple procedure, and therefore costs may need to be ‘unbundled’ if a patient receives a different package of care in
another EU country.
Regarding the costs to be charged to incoming patients, the Directive states that providers apply the same tariffs they apply to domestic patients in a comparable medical situation or, when this is not possible, a price calculated on
the basis of objective and nondiscriminatory criteria. ‘In the event that waiting times were to increase for certain
treatments under the NHS, we could expect a larger number of patients seeking cross-border healthcare going forward’
Patient choice beyond borders: ‘At a time when the NHS is moving to a system allowing for greater variation at local level on which treatments patients are entitled to receive, a key issue with the implementation of the EU rules will be to ensure that commissioners have a clear ‘list’ of which types of healthcare they allow (or do not allow) their patients to receive’
Information to patients on cross-border healthcare : The Directive requires each member state to make information
about travelling for healthcare easily available to interested patients, including by setting up one or more national contact points for cross-border healthcare to assist both incoming and outgoing patients.
The role of national contact points is to provide patients, on request, with information on their entitlements to healthcare or procedures for accessing and determining entitlements. They will also be required to provide
information on the quality and safety standards that apply in their country and a list of the providers which are subject to them.
Furthermore, they should provide analysis of implications for commissioners. Whilst it is impossible to predict
how patterns of cross-border healthcare will change in the future, it is broadly recognised that most patients prefer to be treated as close as possible to home and therefore, in principle, we do not anticipate a large expansion in the volume of cross-border healthcare within the framework of the Directive.
Nevertheless, it should be emphasised that one of the main reasons given by patients for seeking cross-border healthcare is the opportunity to receive treatment more quickly. Therefore, in the event that waiting times
were to increase for certain treatments under the NHS, we could expect a larger number of patients seeking cross-border healthcare going forward.
As patients may only receive reimbursement for healthcare abroad that they are entitled to receive under the NHS, at a cost which is not higher than the NHS cost, cross-border healthcare is not expected, in principle, to have major implications for NHS budgets. Nevertheless, as authorisation cannot be refused in cases of ‘undue delay’, there
could be some implications in terms of commissioners’ ability to plan and prioritise. This could, in turn, have implications for health inequalities by allowing certain patients to receive treatment more quickly than patients who
are in greater medical need.
Another challenge for commissioners relates to determining domestic prices for healthcare, especially for those procedures which are not covered by a tariff and are subject to significant local variations.
On the positive side, the Directive will reduce the uncertainty commissioners currently have on what rights NHS patients have to receive treatment abroad and how to handle requests from patients for cross-border healthcare.
As the NHS is expected to move to a system allowing for greater variation at local level on which treatments patients are entitled to receive, a key issue with the implementation of the EU rules will be to ensure that commissioners
have a clear ‘list’ of which types of healthcare they allow (or do not allow) their patients to receive. This will be crucial to avoid uncertainty for both commissioners and patients, and to reduce the risk of legal challenges from patients
trying to access treatments abroad which are not routinely available under the NHS.
At a time when the UK Government has put forward proposals to extend patient choice and to diversify providers in the healthcare market, the Directive will have the effect of extending patient choice beyond national borders.
It should be emphasised that patients will have the right to access treatment from any healthcare providers abroad,
including private sector providers.
Patient choice beyond borders : ‘The proposed removal of the private patient income cap, which currently reduces the ability of some foundation trusts to treat a greater number of non-NHS patients, will allow these trusts to take full
advantage of the opportunities emerging from the EU rules’ ‘In the current economic climate, NHS trusts could
be interested in exploring opportunities to provide health services to European patients to diversify their income’
information on liabilities and complaint procedures in the event that the patient suffers harm.
Cooperation between providers across Europe : The Directive seeks to promote cooperation between providers and centres of expertise through the development of ‘European reference networks’, notably in the area of rare diseases. Hurrah! At last Cameron and Lansley’s mantras “health care is better in Europe” are becoming boring as they DON’T DO anything. This way, Patients can demand that something is done t bring treatment, particularly for cancer, up to European standards. Why should be have to go abroad to access their superior treatment? Why shouldn’t UK cancer patients have same life expectancy as Europeans post cancer?
These networks will concentrate knowledge in medical domains where expertise is rare and foster progress in the diagnosis and treatment of rare conditions.
The European Commission will develop a methodology for the setting up and operation of these networks in the run-up to the implementation of the Directive. We will monitor this process and contribute NHS views to maximise
the opportunities for NHS trusts.
The briefing notes state: It should also be emphasised that NHS tariffs are often higher than tariffs applied in other member states and that this could impact on the ability of NHS trusts to ‘attract’ EU patients.
The Directive is the first genuine example of EU legislation specifically in the area of healthcare services.
The information above has been kindly supplied by the European Office of the NHS Confederation.
Further copies of the notes above or alternative formats can be requested from:
Tel 0870 444 5841 Email firstname.lastname@example.org
or visit http://www.nhsconfed.org/publications
The NHS Confederation is a Registered Charity no: 1090329.
OR/ if having problems accessing treatment, probably best person to help is your MEP.
The NHS European Office
The NHS European Office has been established to represent NHS organisations in England to EU decisionmakers.
The office is funded by the strategic health authorities and is part of the NHS Confederation. EU policy
and legislation have an increasing impact on the NHS as a provider and commissioner of healthcare, as a
business and as a major employer in the EU.
Our work includes:
• monitoring EU developments which have an impact on the NHS
• informing NHS organisations of EU affairs
• promoting the priorities and interests of the NHS to European institutions
• advising NHS organisations of EU funding opportunities.
To find out more about us, and how you can engage in our work to represent the NHS in Europe,
visit http://www.nhsconfed.org/europe or contact email@example.com
1. Regulation EC 883/2004, which repealed Regulation 1408/1971.
2. The NHS (Reimbursement of the Costs of EEA Treatment) Regulations 2010 – S.I. 2010 No.915.
The NHS (Reimbursement of the Costs of EEA Treatment) (England) Directions 2010.