Par Dr. Sabrina Germain, Lecturer in the Law School at City, University of London
The NHS 70th anniversary is an opportunity to celebrate the institution’s achievements, to take stock and also look to the future. Since its inception in 1948, health care services in the UK have been provided equally to all British patients irrespective of their ability to pay for treatment.
Unfortunately, the NHS is now facing a series of crises that threaten its core values: insufficient human resources, increasing waiting lists, and not the least Brexit. The UK’s departure from the EU will have a significant negative impact on the NHS that will translate into, but would not be limited to, shortage of staff, scarcer resources and limited availability of medicines. However, Brexit may also bring unexpected opportunities in health care. The new political and economic landscape could motivate the UK government to reach out to the EU and enter a new agreement on cross-border health care services to solve the NHS’ scarcity issues. For instance, formalities could be put in place to allow EU member states to bid on UK health care contracts. Competition among EU providers would naturally drive down the prices of treatments leading to shorter waiting times in the UK and savings for the NHS.
Although it is not possible to put a definite pound amounts on the initiative, a formal agreement could tackle some of the costs already associated with unregulated medical tourism. Among other aspects, the agreement could provide for a framework to deal with patients upon their return to the UK in order to avoid some of the costs associated with complications and continuity of care estimated at around £8.2 million.
Previous Cases of NHS Cross-Border Treatments
Over the past decade, an increasing number of British patients have organised medical travels into the EU to bypass NHS waiting lists. The case of Yvonne Watts is certainly the most notorious example because of the controversy it sparked at the national and European level.
Ms Watts sought authorisation from the NHS to have her hip-replacement surgery performed in France. The Bedford Primary Care Trust denied the initial request on grounds that the surgery could be performed in the UK within an acceptable one-year delay. Due to her deteriorating health, she was moved up the NHS waiting list and given a priority status. Regardless, Ms Watts travelled to France to promptly receive her treatment. Upon her return to the UK, her claim for reimbursement was denied. Shortly after, she turned to the courts to review the government’s decision.
In this case, the European Court of Justice confirmed its judgments in other cases on cross-border treatment in the EU. The Court had previously ruled that patients were entitled to the full reimbursement of the cost of treatment and related expenses, including travel and accommodation costs. The decision led to the enactment of the Directive on Cross-Border Health Care that formalised the rules on treatments offered in the EU and led to a few other instances where the NHS has directly organised and paid for the treatment of British patients in the EU.
A Post-Brexit Solution
Unfortunately, the Directive may no longer be applicable to the UK post-Brexit. It is also unlikely that a substitute agreement will be put in place before the transition period begins on March 29th 2019. Health care remains a highly protected area under EU law because of its impact on the member states’ social security systems. In fact, health care services have not been directly the object of a unifying EU regulation; the current directive focuses solely on patients travelling within the EU to receive treatment.
In the event that a UK-EU bilateral agreement is negotiated, the NHS could however agree to pay for a set number of patients to be treated in EU medical facilities. This would help alleviate pressures on the British health care system and decrease waiting times. Scheduled interventions would also help EU member states plan their budget and determine the resources they wish to allocate to the treatment of British medical tourists. That being said, the UK would be under no obligation to reciprocate the agreement and could avoid offering treatment to medical tourists coming from the EU, also saving on these costs.
Most importantly, the NHS would no longer have to bare the unbudgeted costs of its patients seeking medical procedures in the EU without prior-authorisation (like in the case of Ms Watts). The number of patients benefiting from cross-border health care services, the specific health facilities in charge, and the negotiated prices could all be formalised under the agreement, making for a more transparent process. Furthermore, it could be imagined that participating medical facilities would only be authorized to treat NHS patients if it is established that the quality of care they offer is up to NHS standards.
Patients’ ability to travel across borders for treatment would also be significantly increased. The agreement could help bring NHS patients closer to specialised treatments thanks to the different array of services and technology offered in EU member states. Participating medical facilities in the EU would also be authorised to treat NHS patients only if it was established that the quality of care they offered was up to NHS standards. Electronic record keeping and sharing (within rules of data protection) between the NHS referring doctors and EU treating physicians would help provide continuous care and reduce incidences of medical errors that are frequent in cases of cross-border treatments.
By and large, it may very well be that the future of the NHS lies in the EU. Research demonstrates that access to health care could be improved with the commissioning of health care services to EU providers. The possibility that the UK could negotiate a bilateral Treaty would eliminate the NHS’ backlog while preserving the system’s core values of universal and equal access to health care.
Ce contenu a été mis à jour le 4 octobre 2018 à 10 h 58 min.