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Thanks to Butterworths.co.uk
Cross-border medical treatment
In a recent ruling the European Court of Justice (ECJ) confirmed that
patients can conditionally seek medical treatment in other member states without
authorisation. Lourde Soop, UK lawyer and legal advisor with Sweden�s
Institute of Medical Law, tells Greg Bousfield why this is significant...
A European Court of Justice (ECJ)
ruling (C-385/99) has given more precision to the debate on cross-border medical
treatment, and confirmed several earlier ECJ rulings that patients can
conditionally seek limited medical treatment in other member states with
comparable medical systems without authorisation.
The ECJ ruled that the principle of freedom to provide services precludes
Netherlands�s legislation requiring prior authorisation for non-hospital care
provided in another member state by a non-contracted provider. In the case of
hospital (excluding out-patient) care, by contrast, the requirement for prior
authorisation is justified, the court ruled.
"This is a very significant judgment because for the first time, the ECJ
has made a distinction between hospital and non-hospital care," comments
Lourde Soop, UK lawyer and legal advisor with Sweden�s Institute of Medical
Law. "Basically, if you require non-hospital treatment, you can go to a
non-contracted provider of your choice without asking permission."
The judgment also follows previous rulings by stipulating � but not defining -
the condition that treatment could only be sought offshore if there was �undue
delay� domestically. The treatment sought could also not form part of a trend
which would undermine the patient�s national health system, or treatment which
was not medically recognised.
In the UK, the chief distinction in current NHS policy is between emergency care
(chiefly for holiday-makers) and those who seek out treatment. The Department of
Health indicated to LegalUpdater, that for short-term treatment arising
from an emergency, presumably occurring overseas, the NHS allows that free �or
reduced-cost� emergency, largely hospital, treatment is available for UK
citizens (Form 111). However, for patients seeking out treatment �for medical
care, or if you require ongoing treatment for a pre-existing condition� (Form
112) must write a letter to local UK health authorities explaining the reasons
for this together with a letter from their NHS consultant explaining why
offshore treatment is necessary. Otherwise, �you will have to pay for the
treatment you receive and you will not be able to obtain a refund of the
costs.�
Although the latest judgment suggests that UK patients would have to request
permission to seek out treatment outlined in Form 112, behind this category lies
a further distinction, between cheaper out-patient-style treatment and treatment
requiring hospitalisation � and defining where the division lies might be the
subject of the next round of ECJ rulings, Soop suggests. "People assumed
that previous judgments just related to hospitals of any sort. I think the next
area of the court�s focus is likely to be in relation to the actual definition
of hospital treatment as opposed to non-hospital treatment. I think that will
cause some problems," she predicts.
Given complaints about NHS services, it is possible that the clarification may
arise from a UK complaint to the ECJ. "People in the UK are demanding these
rights more than in any other country in the EU," she says. A starting
point to a complaint is perhaps an obstacle to freedom of movement and services
arising from the NHS�s definition of �undue delay�.
Currently only Denmark and the UK routinely send patients overseas for
treatment. In Denmark, unless treatment is received within two months, patients
are entitled to be treated abroad or to have private treatment in their own
country, all paid for by the state. The UK Department of Health says it �aims
to reduce the maximum inpatient and day case waiting times to 3 months by
2008� but admits that much longer waiting periods are now experienced.
"The ECJ sought to define undue delay saying that it should be assessed
strictly from a medical point of view and not according to the actual waiting
time for the treatment requested," she says. "However there is likely
to be continued litigation on this point."
Until these matters are better defined, perhaps by the ECJ, "I don�t
think the state of play is going to be vastly different in the UK," Soop
says. "I don't think that this judgment will change anything with regard to
the numbers seeking hospital treatment abroad."
In the longer term, a move towards more comprehensive service provider
agreements with contractors abroad is likely to be developed by member state
governments to take advantage of the �health tourism� possibilities raised
by this and four previous ECJ rulings on cross-border medical provision, she
says.(28/05/03)
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