Treatments of Low-priority and the Patient Mobility Directive 2011, an End to Legal Uncertainty for the English NHS?

in European Journal of Health Law
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The patient mobility case law of the Court of Justice of the European Union created legal uncertainty for the healthcare systems of EU Member States. The Patient Mobility Directive setting out patients’ cross-­border rights was adopted to end this uncertainty. With the Directive to be transposed into national law by October 2013 this article discusses whether the Directive achieves this objective for the English NHS. It contrasts the legal position of the NHS patient under case law and under the Directive regarding the need for prior authorisation of cross-border treatment, the level of reimbursement and the ambit of the healthcare benefits basket. It is argued that the risk of legal challenge may persist under the Directive, specifically regarding treatments which are classified by health authorities as low priority, namely treatments which are either not ‘generally’ available or only available subject to certain clinical criteria or access thresholds.

Treatments of Low-priority and the Patient Mobility Directive 2011, an End to Legal Uncertainty for the English NHS?

in European Journal of Health Law




S.L. Greer and S. Rauscher“Destabilization Rights and Restabilization Politics: Policy and Political Reactions to European Union Healthcare Services Law”Journal of European Public Policy 18(2) (2011) 220-240.


NHS European Office. 2011. “Patient Choice Beyond Borders: Implications of the EU Directive on Cross-Border Healthcare for NHS Commissioners and Providers.” NHS Confederation. May 2011. Retrieved 24 February 2012


Department of Health. 2010. “Cross-Border Healthcare and Patient Mobility: Revised Advice on Handling Requests from Patients for Treatment in Countries of the European Economic Area.” Guidance for the NHS. 6 April. Retrieved 20 August 2012


Department of Health. 2013. “Cross-Border Healthcare and Patient Mobility: Consultation on UK Implementation of Directive 2011/24 EU.” 27 March. Retrieved 10 April 2013; see also supra note 6.


See e.g. NHS Hertfordshire 2013. “Bedfordshire and Hertfordshire Priorities Forum: Interim and Final Guidance.” January 2013. Retrieved 28 April 2013


Van der Meisupra note 27.


Department of Health. 2010. “Cross Border Healthcare and Patient Mobility: Data and Evidence Gathering York Health Economics Consortium.” August 2010. Retrieved 5 October 2012


Van der Meisupra note 27.


See also Flearsupra note 27 arguing that the concept of hospital care could be reduced to a minimum if all treatment that is capable of being provided on an non-hospital basis anywhere in the EU is classified as such.


E. Zanon“Health Care across Borders: Implications of the EU Directive on Cross-border Health Care for the English NHS”Eurohealth 17(2-3) (2011) 34-36.


See generally A.P. van der MeiFree Movement of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford: Hart Publishing2003); supra note 55 p. 127.


See discussion by A. Kaczorowska“A Review of the Creation by the European Court of Justice of the Right to Effective and Speedy Medical Treatment and its Outcomes”European Law Journal 12(3) (2006) 345-370.


M. Cousins“Patient Mobility and National Health Systems”Legal Issues of Economic Integration 34(2) (2007) 183-193.


V. Hatzopoulos“Killing National Health and Insurance Systems but Healing Patients?” Common Market Law Review 39(4) (2002) 683-729.


Sautersupra note 24.


G. Davies“The Effect of Mrs Watts Trip to France on the National Health Service”King’s Law Journal 18(1) (2007) 158-167.


Sautersupra note 24.


E.g.supra note 1; see also Geraets-Smits supra note 26; see also Müller-Fauré supra note 3.


T.K. Hervey and J.V. McHaleHealth Law and the European Union (Cambridge: CUP2004) p. 137 arguing that especially regarding new treatment there is likely to be a difference of professional opinion.


C Newdick“Citizenship, Free Movement and Health Care: Cementing Individual Rights by Corroding Social Solidarity”Common Market Law Review 43 (2006) 1645-1668.


Health and Social Care Act 2012Section 1(1); see also supra note 127 p. 1661.


H. Bowden“EU Cross-Border Health Care Proposals: Implications for the NHS”Eurohealth 15(1) (2009) 18-20.


Newdicksupra note 102 p. 862.


R. Klein et al.“Rationing in the NHS: the Dance of the Seven Veils — in Reverse”British Medical Bulletin 51(4) (1995) 769-780.

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