A right to treatment – but where?

When the European Commission proposed its services directive in January 2004, it included a proposal on the reimbursement of costs for patients receiving treatment in another EU state.

The Commission claimed that it was proposing nothing new in the field of healthcare, but was simply codifying existing EU law, taking account of judgements from the European Court of Justice (ECJ), clarifying the rights of patients to receive reimbursement for some costs for non-hospital care received in another member state without prior authorisation. That claim was disputed and, when the services directive was watered down, healthcare was specifically excluded from the scope of the revised proposal. The Commission’s critics argued that the healthcare sector required its own specific legislation.

But until any legislation emerges, it would appear to be the ECJ that is deciding policy on health-care (see facing page).

A body of case-law is growing, which sets some boundaries for future decisions on what services EU member states must provide for citizens from other member states and what the state must fund.

The ECJ has ruled that healthcare services must be regarded as services and so subject to the EU treaty’s rules on the free movement of services. Requiring a patient to obtain prior authorisation from his or her home health system for treatment received abroad as a precondition of having costs reimbursed is a barrier to the freedom to provide services. But such a barrier can be justified by overriding reasons of general interest such as public health or the need to ensure that a health system is financially sustainable. But those justifications are in turn undermined where treatment in the home country is subject to "undue delay".

The case law has been testing the strengths of the justifications and exemptions put forward by the various healthcare funding authorities in the member states. The peculiarities of the Dutch healthcare funding have provoked a number of test-cases. One of the most far-reaching ECJ judgements, the Watts case, ruled that the principles on patient mobility applied to the UK’s National Health Service, whose services are largely free at the point of delivery, as well as to healthcare systems based on social insurance.

EU health ministers are not content that the ECJ is making policy. "We strongly believe that developments in this area should result from political consensus, and not solely from EU law," they said in a joint statement last summer.

Rosie Winterton, a UK junior health minister, said earlier this year that it was "inappropriate" for the ECJ to continue without some political input and she described the statement by EU health ministers as "an important stake in the ground" from member states.

The health ministers called in June 2006 (shortly after the Watts judgement) for European citizens to be given clarity about their rights and entitlements when they move from one EU state to another. They said that "these values and principles" should be put in a legal framework to ensure legal certainty.

The Commission undertook in its work programme for 2007 to provide certainty about the application of EU law to health services and healthcare and launched a consultation about health services which asks about where legal certainty is needed.

Its communication on health services, published in September 2006, is a step on the road towards proposing sector-specific legislation. But given the political and fiscal sensitivity of healthcare and health service funding, the Commission will be treading carefully.

Those European Court judgements

• Kohll/Decker - prior authorisation is an obstacle to the freedom to provide services

Judgement of 28 April 1998

Raymond Kohll, a Luxembourg national, with health insurance with a Luxembourg Union des Caisses de Maladie, sought authorisation for his daughter to receive treatment from an orthodontist in Trier, Germany.

The court ruled that the EU treaty did not permit national rules under which reimbursement for the cost of dental treatment by an orthodontist in another EU state was subject to prior authorisation by the insured person’s social security institution.

National social security systems had to comply with the EU law and Luxembourg’s national rules on reimbursement constituted a barrier to freedom to provide services. The barrier was not justified by the risk of undermining the financial balance of the social security system since reimbursement of the costs of dental treatment provided in other member states in line with the state insurance tariffs was not significant. Nor were the restrictions justified on the grounds of public health.

Nicolas Decker, a Luxembourg national, sought reimbursement of the cost of a pair of spectacles with corrective lenses purchased from an optician in Arlon, Belgium, on a prescription from an ophthalmologist in Luxembourg. The court ruled that national rules should not permit a social security institution to refuse to reimburse an insured person for the cost of a pair of spectacles purchased from an optician in another member state on the grounds that prior authorisation was required for buying any medical product abroad.

• Vanbraekel - on the level of reimbursement that should be provided

Judgement of 9 November 1998

Abdon Vanbraekel and his children sought reimbursement from the Alliance des Mutualités Chrétiennes in Belgium of hospital treatment his wife had received in France. A request for authorisation was refused but she went ahead with the operation and the refusal was subsequently ruled unfounded. She had the operation in 1990 but died in 1996 during the course of the legal proceedings.

The court ruled that when an insured person has been authorised to go to another member state for treatment, the institution providing treatment must provide the patient with benefits in line with the rules on assumption of the costs of healthcare that apply in that hospital, as if the patient were registered with it.

• Geraets-Smits/Peerbooms - on prior authorisation and undue delay

Judgement of 12 July 2001

Both cases concerned Dutch nationals who received specialist treatments abroad. Geraets-Smits received treatment for Parkinson’s Disease in Germany and Peerbooms neurostimulation in Austria.

The court ruled that the EU treaty did not prevent a member state having legislation that made the reimbursement of the costs of treatment in another member state conditional on prior authorisation from a sickness insurance fund. Giving such authorisation could be subject to a condition that the treatment was "normal in the professional circles concerned" and that the treatment was required medically. But the court ruled that authorisation could not be considered abnormal where it appeared that the treatment was sufficiently tried and tested by medical science and could only be refused as not being a medical necessity if the same or equally effective treatment could be obtained without undue delay at a hospital or clinic contracted to the sickness insurance fund.

• Inizan - on prior authorisation and undue delay

Judgement of 23 October 2003

Patricia Inizan, resident in France, sought reimbursement of treatment she intended to take in Germany.

The court ruled that authorisation could not be refused where it was apparent that the treatment in question was among the benefits provided for by the legislation of the patient’s resident state and that treatment could not be obtained without undue delay in that state.

• Müller-Fauré/Van Riet - on prior authorisation, undue delay and non-hospital care

Judgement of 13 May 2003

Müller-Fauré, a Dutch woman, had dental treatment while on holiday in Germany. She sought reimbursement of the costs of the treatment. Van Riet, another Dutch woman, was suffering pain from her wrist but was refused authorisation for an arthroscopy in Belgium, where the operation could be carried out much sooner than in her home country. She had the operation in Belgium and sought reimbursement.

The court ruled that national legislation could make reimbursement of hospital treatment received in another member state conditional on prior authorisation and subject to a condition that the treatment was necessary for the patient’s healthcare. But authorisation could be refused only if treatment which was the same or equally effective could be obtained without undue delay in an establishment which had an agreement with the patient’s sickness insurance fund.

The court ruled that EU law could not allow such rules for the reimbursement of costs of non-hospital care.

• Yvonne Watts - on undue delay

Judgement of 16 May 2006

Yvonne Watts, a British national suffering from arthritis, went to France for a hip replacement operation, having waited for an operation in England. Her local healthcare authority had refused to issue an E112 form authorising the treatment abroad at its expense. She sought reimbursement of the costs which she had paid herself.

The court ruled that if a health authority is to refuse to grant authorisation for treatment abroad on the ground that there is a waiting time for hospital treatment, then it must establish that that waiting time does not exceed what is an acceptable period on the basis of an objective medical assessment of the clinical needs of the patient. A refusal to grant prior authorisation cannot be based merely on the existence of waiting lists, without an objective medical assessment.

When the European Commission proposed its services directive in January 2004, it included a proposal on the reimbursement of costs for patients receiving treatment in another EU state.