Health care and the European Union

Slowly, in health and social affairs ministries across Europe, the realisation is dawning that European Union law has profound consequences for the organisation of national healthcare systems. Even in the United Kingdom, which for many years was in a state of active denial about the influence of Europe, ministers are looking at how to exploit the opportunities offered by provisions on free movement of patients (to France) and professionals (bringing teams of German surgeons to operate at weekends in NHS hospitals).

Yet the scope for action is often uncertain. A failure to address health care explicitly at a European level means that the evolving legal situation is based largely on policies designed to address broad principles, in particular the free movement of goods, services, people, and capital. These are then applied to the health sector in rulings on specific cases brought before the European Court of Justice, but leaving uncertainty as to how they should be interpreted in similar but slightly different circumstances. The situation is complicated further by the changing nature of healthcare delivery, such as public and private partnerships within publicly funded systems, potentially bringing new areas within the scope of competition law.

As Duncan notes in his article this week (p 1027),¹ the consequences for the United Kingdom of the changing European environment are likely to be considerable. Some are obvious. Directives on doctors and on working time have already had important implications for patterns of medical staffing and, potentially, for the viability of many district hospitals. But others are less clear. Recent rulings that citizens can obtain health services abroad without obtaining prior authorisation from funders raises important and as yet largely unexplored issues.² When is a decision to deny treatment abroad justified on grounds of clinical effectiveness and when is it an unwarranted block on provision of services? How long is what the court terms “undue delay,” which is sufficient reason for patients to demand that their treatment be paid for in another country where it can be offered sooner? It is almost certainly much less than the time most people wait for definitive treatment in the United Kingdom. But how much less, and what are the consequences for primary care trusts with limited budgets?

Further questions relate to the implications of the new British system of revalidation. Will it apply to German surgical teams visiting at weekends? The European Court of Justice has consistently held that the right of establishment allows professionals to work in more than one member state,³ a view confirmed by two recent rulings by the European Free Trade Area Court,⁴,⁵ but they must adhere to established professional standards. How will this work in practice?

It is increasingly clear that it is necessary to consider possible implications of European law whenever change of any sort is contemplated. What might the European Court of Justice say about the recommendation in the Kennedy report⁶ into heart surgery at Bristol Royal Infirmary that the National Institute for Clinical Excellence, established to advise the NHS on what interventions it should provide, should be at arm's length from government? As the institute plays an important role in reimbursement decisions, will European law permit this role to be fulfilled by a non-state body?

And it is easy to forget that the NHS does more than just provide health care. NHS trusts are involved in training and research, and here too current arrangements could be open to challenge by private research teams on grounds of competition. The application of competition law to trusts is also likely to change if they are permitted to keep their surpluses and engage in more entrepreneurial activities. This is likely to require creation of new legal and financial structures to avoid legal challenges.

Yet some bodies are already taking full account of European Union law. In two recent rulings, the Office of Fair Trading and the Competition Commission both referred extensively to European case law in decisions on pharmaceutical pricing.⁷

It is increasingly clear that the present uncertain situation cannot continue. A recent report by the high level committee on health of the European Commission⁸ suggested that internal market rules should take full account of the interests of patients and health services and not just purely economic interests. It also recommended reformulation of the European Union competencies in health with the objective of moving all related health powers into one treaty article that would clarify roles and responsibilities.

However, this may not be sufficient. The next treaty revision must consider explicitly how the European Union can ensure that the social nature of health care in Europe is not unintentionally undermined. But this will take time. In the short term, three things are possible.⁹ Firstly, much greater coordination within the European Commission among those responsible for the many issues that have implications for health care is needed.

Secondly, there must be a greater use of the newly established system of open coordination of national social policies.¹⁰ This system, which has formally established mechanisms to learn from the experience of others while taking account of national circumstances, provides an opportunity to promote best practice by increasing exchange of information on what works and what does not, and in what circumstances. In many cases it will be possible to develop shared approaches to common problems, but this mechanism respects historical, political, and cultural diversity. It does not force the harmonisation of processes that, while pursuing the same goal, are organised in ways that are incompatible with each other.

Finally, the European Union must establish, as soon as possible, a system that can monitor the evolving impact that European Union law has on healthcare systems and propose remedies when unintended effects arise.

Education and debate p 1027