After Nice: where now for health policy in the European Union?

The European Union does not stand still. Even before the people of Ireland voted, at the second attempt, to ratify the Treaty of Nice, discussion was already beginning about the treaty's successor. One topic that is almost certain to receive attention in these discussions is health. The existing European legal framework in relation to health and healthcare is far from satisfactory. At both Maastricht and Amsterdam, articles on health appeared at the last minute and compromises were reached that confused rather than clarified matters¹. The outcome contrasts starkly with other articles in the treaty, such as those dealing with consumer protection or the environment, where the goals are clear and the mechanisms to achieve them are both realistic and explicit. Why the difference?

Perhaps the main reason was the concern by the governments of member states to uphold the fiction that health services were in some way sheltered from the provisions of European law. Although they had already conceded principles of free movement of health professionals, pharmaceuticals, and all of the inputs to healthcare that are not exclusively health-related, such as furnishings and financial services², they still believed they had control over movement of patients, who could only obtain treatment abroad in an emergency or when the body responsible for paying for it agreed. Since then, various European Court of Justice rulings have rendered this belief untenable³. Patients now have a right to obtain treatment in another country where their own is unable to provide it without ‘undue delay’, and those responsible for paying must apply ‘international’ (whatever that means) rather than national standards in deciding what is necessary. Health authorities contracting for health services are required to enter agreements with appropriately qualified healthcare providers irrespective of nationality.

Yet there remains a serious lack of clarity. By insisting that health services remain a matter for governments of member states, those governments have denied themselves the means of working together within the framework of the European Union to develop a coherent policy on patient movement. Instead, one-off initiatives have emerged, often with little understanding of the wider context. Furthermore, as the law at any particular time is determined by the specific issues raised in the most recent European Court of Justice case, there are always more questions than answers about what is or is not permitted.

At the same time, European legal provisions focused primarily on areas other than health will greatly affect the organization of health services. Once the European Court of Justice had ruled that time spent on call was to be considered as working time⁴, the Working Time Directive, introduced under health and safety provisions, became exceptionally difficult to implement⁵. When applied to junior doctors in 2012 this will have profound implications for postgraduate medical training and, in the UK, for the survival of the current pattern of hospital services. Hospitals that need to provide 24-hour cover will have to employ many more doctors yet these doctors will have less opportunity to obtain practical experience. This is likely to mean the withdrawal of services from many district general hospitals—upsetting the planning assumptions that many are now locked into through Private Finance Initiatives. Similarly, the draft directive on professions, currently making its way through the legislative process, will bring all professions, from surgeons to deep-sea fishing captains, under a single regulatory framework. As written, it is largely incomprehensible and certainly unworkable. It is deregulatory in intent, seeking to make movement easier. Thus, physicians from one member state will be able to practise for up to sixteen weeks in another member state without registering in the new one. This is being introduced at a time when systems of regulation are being made more stringent. How will the British system of revalidation fit in with this proposal? There is only the most general recognition of these concerns in the draft directive, which displays no understanding of the complex and diverse systems of professional regulation in Europe.

One reason for these difficulties is the way that, notwithstanding the requirement that European Union policies must ensure a high level of human health, health considerations relating to key pieces of legislation are often ignored and health ministers have no chance to discuss matters of direct relevance to them. Pharmaceutical policy, for example, is treated primarily as a matter of industrial policy, despite its obvious implications for health. As a result, important issues such as direct-to-consumer advertising have been discussed largely in isolation from their potential impact on healthcare systems. These developments are taking place at a time when the European Union is itself changing in ways that will have profound consequences for health services. Enlargement will bring into the European Union countries that are very much poorer than the existing member states, and whose populations have much worse health⁶. Trans-border movement of both patients and professionals is likely to be on a very much greater scale than anything that has happened before. And adherence to policies developed within the framework of the internal market, on pharmaceuticals, professional standards and so on, will have considerable consequences for their still often financially challenged health systems. Yet the existing European legal framework will make it difficult to subject these policies to appropriate scrutiny in relation to their implications for health and healthcare.

Some who have voiced alarm at the apparent Euro-creep that has affected healthcare may be tempted to argue for strengthening of the ‘exemption’ given to health services in the current treaty. This would be a mistake. Issues such as health and safety or pharmaceuticals could never be excluded from the development of the internal market. Instead, what is needed is a method to ensure that, unlike what happened with the Working Time Directive, these proposals are subject to proper scrutiny before they are enacted. This will require a treaty revision⁷, and our negotiators could do worse than to adapt the somewhat more straightforward wording of provisions on, for example, consumer protection.

But this will not be enough to reap the considerable benefits that could accrue from a process of shared learning, as different countries ask whether they might benefit from ideas originating elsewhere. This does not necessarily require legislative action and the European Union now has mechanisms that will allow it to happen. The Open Method of Coordination is an approach that deserves much more attention. This is already used in areas such as European employment policy, in which there are formally established means to learn from the experience of others while taking account of national circumstances. It provides an opportunity to promote best practice and increase the exchange of information on what works and what does not and in what circumstances. This approach respects historical, political and cultural diversity and does not force a harmonization of processes that, while pursuing the same goal, are organized in ways that are incompatible with each other. An open method of coordination will also make more explicit some of the healthcare challenges posed by the single market and will provide a framework within which legal responses, including possible treaty revisions, can be debated.

Such procedures will take time to develop yet it is clear that some action is needed now. The European Union should establish a system that can monitor the potential impact of European Union law on health systems, particularly single market rules. In future, health policy should be forward-looking, rather than reactive to rulings from the European Court of Justice. Like it or not, the European Union has become a key actor in healthcare policy.