Who bears the costs?

It is only in the last decade that patients have started to exercise their right to EU-wide healthcare services. Jennifer Rankin reports.

When Raymond Kohll’s daughter needed dental braces, no one could have predicted that her wonky teeth would lead to a major legal case raising combustible political questions about power and subsidiarity in the European Union.

Kohll was a citizen of Luxembourg who was refused prior authorisation from his health insurer to visit an orthodontist in Germany. He took his government to court and won. In 1998 the European Court of Justice (ECJ) ruled that Luxembourg’s national law was a barrier to the freedom to provide services and was incompatible with EU law. The Kohll-Decker ruling was the first major case that tested a member state’s commitment to upholding EU rules on healthcare (Decker was another Luxembourgeois citizen with a similar complaint.)

Member states have obligations on healthcare under the EC treaty dating back to 1962. But it is only in the last ten years that these rights have really been put to the test through a dozen cases that have gone to the ECJ. These cases have not changed EU law, but they have made national governments and citizens aware of pre-existing EU law and how it applies to healthcare.

Another landmark case was that of Yvonne Watts, a British citizen who went to France for a hip replacement after waiting for the operation in England. For Watts, the 2006 verdict was mixed, as she was not reimbursed for the cost of her treatment. But for patients in general, it set an important precedent by establishing that a health authority must ensure that waiting times do not breach ‘acceptable’ limits.

In April, in the case of Aikaterini Stamatelaki, a Greek national, the court ruled that citizens were entitled to be reimbursed by national authorities for receiving treatment in a private hospital, deciding that whether the hospital was public or private was immaterial.

But these cases leave as many questions as they answer. Much political anxiety and legal interest centres on the question of undue delay. Grant Castle, a partner at Covington and Burling, a law firm, says that "there will inevitably be the need for health services providers to consider what constitutes unreasonable delay". He said that it would be difficult for countries such as the UK to maintain one position on waiting lists, if others are treating patients faster. He adds that "this is inevitably going to move us towards harmonisation…the risk is that you reach a lowest-common denominator scenario where the waiting list times become relatively quick, but maybe at the expense of quality."

The European Commission has insisted the directive will not lead to harmonisation. The original draft of the proposed directive was subject to a substantial redrafting with numerous clauses added to allay those fears. "This does not mean establishing minimum European standards for healthcare," states one clause. Member states will be debating access to healthcare in June 2008 under the Slovenian presidency. For now they are keeping a close watch that the Commission does not stray into any new areas. A German official says that Berlin wants to "maintain autonomy for the health sector and ensure that other services, such as care services, remain outside its scope".

The politicians still have several practical and legal problems to overcome. On the practical side are issues that concern patients: translation, getting information and travel costs. Plus there are legal issues, such as liability when treatment goes wrong and appeals on decisions by national governments not to reimburse. There is already consensus on the point of principle that the party at fault must provide compensation. The Commission is proposing to create a "network of national contact points" that would give people help and advice.

Jules Maaten, a Dutch Liberal MEP, recommends the creation of a post at EU level to ensure that citizens get redress, suggesting an ombudsman or someone within the European Commission as examples. Patients’ groups also support the idea of an ombudsman.

On the question of redress and appeals on reimbursement, the lawyers at Covington and Burling suggest a number of options: mandatory insurance, no-fault EU-wide compensation or an EU-wide alternative dispute resolution (ADR) system. Some lawyers have also suggested using Solvit, the EU’s problem-solving network. But Castle warns that ADR could still be "an absolute nightmare", as it may require representatives from 27 member states, plus clinical experts, who would all have conflicting expectations about how healthcare systems operate.

Despite the ambitions of the directive to provide clarity, it seems certain that the legal wrangles and political debate will continue.

It is only in the last decade that patients have started to exercise their right to EU-wide healthcare services. Jennifer Rankin reports.