Patients' rights

An extremely interesting dossier we are currently discussing within the European Parliament's Internal Market and Consumer Protection Committee deals with patients' rights and the cross-border aspects of health services. The committee commissioned a number of technical briefings on this issue, one of which deals with related decisions by the European Court of Justice. Such case law is of great significance due to lack of clear and comprehensive European legislation.

This particular brief, penned by Vassilis Hatzopoulos, examines the fact that the European Union has only residual competences in the area of healthcare, and that the main legislative text dealing with cross-border healthcare is Regulation 1408/71 on the application of social security schemes. This Regulation established the practice that, with the notable exception of emergencies, any person wishing to receive healthcare services in another member state, has to obtain an authorisation by the authorities of the home state. If this authorisation is granted, the patient is entitled to receive both benefits in kind and in cash in the host member state.

Over the years, the European Court of Justice (ECJ) has given an increasingly extensive and liberal interpretation to this Regulation, basing its judgments on the principle of freedom of movement. For example, in the landmark Kohll case, where a Luxembourger was seeking reimbursement for a dental treatment received by his daughter in Germany without having received prior authorisation from the Luxembourg authorities, the court ruled that the authorisation process is in breach of the principle of freedom of movement.

Judgments in other cases, such as Vanbraekl, Smits and Peerbooms, and Mueller-Faurè, establish that it does not matter that the healthcare system of the home member state does not normally provide for refund or that the host member state offers free treatment to its own patients. What matters is that a patient who moved to another member state had to incur expenses for medical treatment.

Despite all this, the court has avoided the application of free market and competition principles to health services. Thus, member states retain the right to organise their own social security systems on the principle of solidarity.

Over the years, member states have put forward many justifications not to apply freedom of movement to health care. To date, the ECJ has accepted only two of these explanations. The court supports the fact that member states have to plan and rationalise in order to avoid hospital overcapacity, imbalance in supply of medical care, logistical and financial wastage (Kohll, Peerbooms and Vanbraekel). However, this concern applies only to services offered within a hospital infrastructure and not to outpatient services. Moreover, there is acceptance of the need to finance and maintain a balanced medical and hospital service open to all. Nevertheless, the court states that there should be proportionality in the pursuit of these objectives and that the criteria should not discriminate between EU nationals (Mueller-Faurè).

The main bone of contention is the issue of prior authorisation. In this respect, the Hatzopoulos brief provides a clear and concise explanation. The ECJ has held that for non-hospital treatment (there is obviously an issue with what classifies as such) patients can move to other member states without applying for such authorisation, pay for treatment received and then claim a refund from their home institution at the rates at which they would be covered had they not moved, and not those actually paid. In other words, a French national can go for a non-hospital treatment (which costs €100 in France) in Germany, (where it costs €150), without the need for authorisation. Nevertheless, he can only get €100 refund from the French authority.

In the Acereda Herrera case, the ECJ held that travel expenses of the patient and of a member of his family are not covered by the Regulation but may qualify for reimbursement if such expenses are generally taken in charge by the institution of the home member states. Lodging expenses are generally covered.

Furthermore, in cases where the patient still seeks prior authorisation, the decision should be taken in a transparent and timely manner, cannot be refused on purely national criteria (Smits and Peerbooms) and should always be given if the necessary treatment could not be offered within their member state within a reasonable time period, taking into consideration the specific situation of each patient. This last requirement is rather open-ended and subjective, even though it was further qualified in recent cases (Mueller-Faurè, Watts and Inizan).

Cross-border healthcare services and patient rights are set to become one of the main policy debates in the EU. Governments should not look at this development negatively. Instead, they should be open to provide more and better services to European citizens.

On a purely operative level, there are a number of initiatives that need to be undertaken in order to reap the benefits of such a system. These include the determination of the costs of the different treatments by the competent authorities, and also the maximum waiting list period for each condition. This would enable the adoption of a system whereby, once this maximum waiting period elapses, the patient would be entitled to fetch treatment in another member state and be automatically granted a full refund.

Mr Muscat is a Labour member of the European Parliament and vice president of the Economic and Monetary Affairs Committee of the European Parliament.

www.josephmuscat.com