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.
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 Policy18(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 www.nhsconfed.org/Documents/CrossBorderHealthcare_final_20110511_EZ.pdf.
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 www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_115256.
Department of Health.2013. “Cross-Border Healthcare and Patient Mobility: Consultation on UK Implementation of Directive 2011/24 EU.” 27 March. www.gov.uk/government/uploads/system/uploads/attachment_data/file/181168/Cross_Border_Healthcare_and__Patient_Mobility.pdf. Retrieved 10 April 2013; see also supra note 6.
See e.g. NHS Hertfordshire2013. “Bedfordshire and Hertfordshire Priorities Forum: Interim and Final Guidance.” January 2013. Retrieved 28 April 2013 www.hertfordshire.nhs.uk/resource-centre/bedfordshire-a-hertfordshire-priorities-forum/final-and-interim-guidance.html.
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 www.networks.nhs.uk/nhs-networks/cross-border-healthcare-network/documents/York.
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”Eurohealth17(2-3) (2011) 34-36.
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 Journal12(3) (2006) 345-370.