Rob Dickman speaks on the EU Cross Border Healthcare plans


Caroline Ratner from IMTJ spoke to Rob about his involvement in the EU Directive on Cross Border Healthcare, and his views on implementation, the likely time scale and how it might work in practice.

What is your involvement with the Cross Border Directive?

My job is UK/NHS implementation of the Directive. One part of our team deals with the ongoing EU negotiations. My focus is the NHS side of things. What is important for me is to make sure the NHS gets its response to the Directive right or they could face legal challenge - people are much more aware of their rights these days. 

What is the current state of play regarding negotiating the terms of the Directive?

We are approaching the end state. The common position reached by the Council in June has been debated in the European Parliament. The Parliament in turn has proposed its own amendments and negotiations between it, the Commission and the Member States are ongoing. It has been quite a long negotiation process and there are still one or two tricky issues to resolve. The Council, Parliament and Commission need to agree on everything and it is not proving easy because each has different priorities for the Directive.  

For example, one issue is about equity and making it fairer for those on limited incomes to access their rights without having to pay for their treatment up front. Another issue is rare diseases where it is proposed that patients should be able to move around to get the treatment they need without prior authorisation from their home country. A number of Member States feel that this encroaches on their ability to set entitlements for their own citizens.

When do you think there will be a resolution?

One of the key dates is the second reading vote in the EU Parliament in January 2011. If agreement is not reached then the Directive will go into a process called Conciliation. It is still too early to tell how this will pan out - it really depends on how discussions go between now and January. If things go smoothly, we could have a final Directive by early spring 2011. Then it is full steam ahead on implementation. 

How long will implementation take?

What normally happens within a Directive is that there is a clause that will tell Member States how long they have to implement it. Three years has been mentioned, as has one. This is quite a wide-ranging Directive so Member States do need sufficient time to do all the legal, policy and system work that is needed - and in this country, we are going through a NHS system transformation so this will be added into the mix.

Do you think many UK citizens will travel within the EU for treatment?

I think there is potential for people to travel within the EEA for treatment – indeed, they can do so now, although the numbers are small. However, with travel and accommodation costs to be factored in, there can be quite a big financial outlay for patients, which may affect overall demand. The Directive gives patients the right to travel anywhere within the EEA for treatment they would be entitled to in their home state but patients will normally have to pay upfront and then claim costs back from the NHS.

What if patients can’t afford to pay up front?

This is one of the discussions taking place currently. Many MEPs in the Parliament are concerned about fairness as having to pay up front could mean that certain sectors of society are excluded because they will not have the funds available to pay for their treatment in advance. There might be movement on this as negotiations continue.

 Will the PCTs, GPs or hospitals help individuals arrange their travel and treatment?

I would say unlikely and we do not intend to make this a requirement. Rather than NHS care, this is about freedom of movement principles and so the onus is on the patient to arrange everything themselves - from finding the right treatment, doctors, clinics etc and arranging all the travel and accommodation. It will be important for patients to be able to access trusted advice.

How are patients going to find out about the directive and what it means to them?

This is still to be decided but it is likely that there will be some kind of obligation placed on Member States to make information available. The NHS Constitution already sets out the rights that patients have to travel abroad but we will need to go further than this. Part of the Directive also proposes the establishment of National Contact Points. Again, it is still to be determined what these will look like, but the likelihood is that it will be some kind of national body that will be a repository of information about cross border healthcare for patients to access. There will likely be national contact points for each of the UK territories.

Is NHS expecting an influx of EU patients and how is that being planned for?

At the moment, the NHS is not expecting an influx - it obviously already attracts quite a lot of overseas visitors anyway, including many from outside Europe and the Directive would not necessarily have any impact on that. Part of the NHS’ responsibilities will be to understand what their obligations are with regard to the Directive and how incoming patients are to be handled. However, no provider would be required to accept any patient from elsewhere in the EU to the detriment of home patients.

Will NHS patients be able to get treatment in the EU that they would not be entitled to in the UK?

No, the Directive is not a route for patients to access additional entitlements, over and above what is available on the NHS. The Directive does not alter the right of Member States to define the benefits that they choose to provide to their citizens.   

What about the NHS so called “postcode lottery” and patients travelling in the EU for treatment that is rationed in their own area?

This is a tricky area because blanket exclusions could lead to court action. Each patient’s case should be judged on its own merits. PCTs decide which treatments patients from their areas may access, using NICE guidance as necessary, and they are not required to reimburse the costs of treatments they do not generally fund.

How are you going to get the message across to the various sections of the NHS?

This is a challenge. The NHS is starting from quite a low level of awareness of the European dimension of health care and of the case law obligations that already exist in this area. Since the landmark Watts judgement in 2006, we have done our best to engage the NHS and earlier this year we introduced a package of interim Regulations, Directions and updated guidance. I am talking to various NHS and stakeholder groups and over the past months I have noticed that people in the NHS are starting to pay attention to this, so that is paying dividends. Getting the necessary awareness and engagement in a difficult financial climate and changing system landscape remains our key challenge.

What about educating patients?

Patients are generally very motivated to help themselves but they do have to understand that if they go overseas then the NHS duty of care does not follow. They are effectively leaving the NHS, with all that this implies – including if something goes wrong when they are abroad. It is very important for the patient to recognise that, in terms of clinical negligence, they would be responsible for following that up in the destination country. The Directive is not quite the free for all that some people necessarily think it is. Making sure one has good

insurance cover is a very important part of this agenda if things do go wrong. A lot of education needs to take place - with both the NHS and the public.

How is the NHS going to set tariffs and charge EU patients for treatment?

This is one of the most important messages we need to get across to the NHS. Providers cannot treat patients seeking treatment here under the Directive as private patients, because the Directive establishes certain fundamental rights for EU citizens. Fortunately, England benefits from a reasonably robust tariff system, which will form the basis for charging and reimbursement. The other UK territories (Scotland, Wales and Northern Ireland) will also need to have objective and transparent arrangements for calculating levels of reimbursement.

Is it proving very complex to organise and implement?

It is a complex agenda, which touches many different parts of the NHS – systems for prior authorisation and reimbursement of costs, information for patients, clinical governance, transfer of records, safety, determining entitlements etc, these are all difficult issues in a pan-European context. And these all have to be resolved within a changing NHS system in the next few years. My job is to make sure we help the NHS deliver its obligations in a fair and consistent way. 

So will patients be able to go to private healthcare suppliers?

Yes, under the Directive, patients can seek any health care service (including private care) in another Member State that is the same as or equivalent to a service that would have been provided to the patient under the NHS. The patient then has a right to claim reimbursement up to the amount that the treatment would cost had the patient obtained it under the NHS - or the actual amount where this is lower.

Who is going to take responsibility for clinical standards of the destination healthcare provider?

As I said before, when seeking treatment in another Member State under the Directive, patients are effectively leaving the NHS, with all that this implies – including if something goes wrong when they are abroad. It is very important for the patient to recognise that. National contact points may play a role in the provision of information to the public but ultimately, patients are going to have to do their own due diligence – e.g. about standards, about qualifications and registration of doctors, about clinical success rates etc. The message to patients is that if you are going to do this you have to think very carefully about all that is involved.

Do you think the UK will get a lot of inbound traffic?

I think this is difficult to assess because we start from a low base and very limited information on the current levels of cross-border healthcare in Europe. In the short term, it will take time for the Directive to bed in, for the rules to be understood, and for the message to get out to the public. It is certainly possible that the UK could see requests from more EU patients for access to treatment in hospitals with particular specialist services, where perhaps there are capacity issues in their home countries.  

On the other hand, it is also possible that the clarity the Directive will provide on where patients can go and what reimbursement they may receive will lead to an increase in UK patients willing to look further afield for their healthcare. 

That said, from the surveys we have done on patient choice the vast majority of people tell us that they prefer to receive their care as close to home as possible. One of the things that may dissuade people will be the complexity of putting in place all the necessary arrangements - getting the right information, knowing who to trust, dealing in different languages, booking travel and aftercare packages, etc. The NHS’ priority is the provision of NHS healthcare - it is not geared up to deal with these issues and it is unfair to expect it to be when we are talking about the provision of healthcare across a Community of thirty different member states. 

It may be that in future, the market diversifies to fill those gaps but of course, the big unknown remains the level of demand that will result from the new Directive.



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