A European healthcare system?

A directive to clarify patient rights to seek healthcare treatment in EU countries could have major implications for the NHS.

The main purpose of the proposed directive, which has been recently adopted by the EU Commission, is to establish a framework under which patients can seek and be reimbursed for healthcare provided in a Member State other than their country of domicile. The proposed directive follows a number of European Court of Justice rulings on patients’ rights to access cross-border healthcare.

The overwhelming majority of patients receive healthcare in their own countries; however, sometimes patients need or want to seek treatment in another Member State. For example, they may require specialist treatment or reside close to a border where the nearest healthcare organisation is in another Member State. The Commission’s proposal is wide-ranging, spanning many complex issues arising out of cross-border healthcare.

The proposed directive, if it becomes law, would introduce a number of clarifications and changes, including:

• A legal framework for patients accessing healthcare in another Member State
• A clearer system for reimbursement of costs
• Common safety and quality principles for all EU health systems
• Guaranteed remedies and compensation for patients if they suffer harm as a result of treatment
• Clinical negligence insurance or indemnity for healthcare professionals
• Greater co-operation between Member States on healthcare, such as information sharing.

There are many aspects of the proposed directive that need to be addressed by the UK in negotiations. MPS has a particular interest in the proposals dealing with patient safety, clinical negligence insurance or indemnity and access to redress. Patients who have suffered avoidable harm arising out of cross-border healthcare should receive redress, including financial compensation where appropriate.

The provisions in Article 5 give Member States a wide scope to implement the standards at national level. This is the right approach – it is our view that Member States are best placed to set standards, and to manage and regulate their own health systems. However, there is a broader point to consider, namely the extent to which Article 5 would pave the way for diktats from the EU on healthcare standards on quality, patient safety and redress. Article 5 requires Member States to ensure that healthcare providers hold professional liability insurance or other equivalent guarantees or arrangements.

Member States operate different models of indemnity and/or insurance in respect of clinical negligence claims. There are broadly three categories operated by Member States: a mandatory system of insurance or a form of indemnity (the UK falls into this category); a mandatory system of insurance only; or a voluntary arrangement which may not specify the nature of cover that healthcare professionals are expected to hold. This proposed wording is, therefore, welcome as it encompasses the system of insurance and indemnity which has operated for well over a century in the UK, and has been debated and approved by parliament in respect of dentists in 2005 and doctors in 2006.

We would not like to see this provision drafted in a more prescriptive way that could seriously undermine well established national systems. Article 5 also provides that patients should be guaranteed compensation when they suffer harm, which is defined as “adverse outcomes or injuries stemming from the provision of healthcare”. This definition is much wider than that covered by existing UK law.

Healthcare treatments can result in adverse outcomes such as known complications which are not negligent. The construction of Article 5 would, therefore, expose healthcare professionals to a much greater level of liability than they are currently subject to in the UK and we strongly suggest that this issue is addressed in the EU Parliament and Health Council.

This is just a snapshot of some the complex issues that the EU Parliament and Health Council will have to grapple with over the coming months. With 27 Member States operating 27 different healthcare and legal systems – not taking into account regional variations – achieving agreement on cross-border healthcare will be a huge challenge. But securing a clarification of rights of patients to seek treatment in another EU Member State will ultimately be worthwhile.