Council adopts position on cross-border health care patient rights
On 13 September, the Council adopted its position on a draft directive to facilitate safe and good quality cross-border health care and promote health care cooperation between member states. The compromise reflects the Council’s intention to fully respect the case law of the European Court of Justice on patients’ rights in cross-border healthcare while preserving member states’ rights to organise their own healthcare systems. The draft directive provides clarity about the rights of patients who seek health care in another member state and supplements the rights that patients already have at the EU level through the legislation on the coordination of social security schemes.
Some of the major provisions in the Council’s position are as follows:
as a general rule, patients will be allowed to receive health care in another member state and be reimbursed up to the level of reimbursement applicable for the same or similar treatment in their national health system if the patients are entitled to this treatment in their country of affiliation;
in case of overriding reasons of general interest (such as the risk of seriously undermining the financial balance of a social security system) a member state of affiliation may limit the application of the rules on reimbursement for cross-border health care; member states may manage the outgoing flows of patients also by asking a prior authorisation for certain health care (those which involve overnight hospital accommodation, require a highly specialised and cost-intensive medical infrastructure or which raise concerns with regard to the quality or safety of the care) or via the application of the “gate-keeping principle”, for example by the attending physician;
in order to manage incoming flows of patients and ensure sufficient and permanent access to health care within its territory a member state of treatment may adopt measures concerning the access to treatment where this is justified by overriding reasons;
member states of treatment will have to ensure, via national contact points, that patients from other EU countries receive on request information on safety and quality standards on their territory in order to enable patients to make an informed choice;
the cooperation between member states in the field of health care is strengthened, for example in the field of e-health and through the development of European reference networks which will bring together, on a voluntary basis, specialised centres in different member states;
the recognition of prescriptions issued in another member state is improved; as a general rule, if a product is authorised to be marketed on its territory, a member state must ensure that prescriptions issued for such a product in another member state can be dispensed on its territory in compliance with its national legislation;
sales of medicinal products and medical devices via internet, long-term care services provided in residential homes and the access and allocation of organs for the purpose of transplantation fall outside the scope of the draft directive;
with regard to the member state of affiliation (which concerns in particular the reimbursement of healthcare costs of a pensioner living in the EU outside their home country and receiving health care in a third member state), the Council’s position provides that as a general rule the member state competent to grant a prior authorisation according to Regulation 883/2004 (i.e. the member state of residence) reimburse the cost of cross-border health care of pensioners. If a pensioner is treated in his country of origin, this country would have to provide health care at its own expense;
concerning healthcare providers, the Council’s position seeks to ensure that patients looking for health care in another member state will enjoy the quality and safety standards applicable in this country, independently of the type of provider; furthermore, the Council agreed that member states may adopt provisions aimed at ensuring that patients enjoy the same rights when receiving cross-border health care as they would have enjoyed if they had received health care in a comparable situation in the member state of affiliation;
the Council’s position includes a double legal basis in the draft directive, striking a balance between the case law of the European Court of Justice on the application of Article 114 to health services and the member states’ competencies recognised by the Treaty for the organisation and provision of health services (according to Article 168 on public health).
The Council points out in a press release that the draft directive is part of the social agenda package of 2 July 2008, focusing on a triple objective: to guarantee that all patients have care that is safe and of good quality; to support patients in the exercise of their rights to cross-border health care; and to promote cooperation between health systems. The aim of the second objective is in particular to codify the case law of the Court of Justice relating to the reimbursement of cross-border health care, avoiding a “third method” of reimbursement (in addition to Regulation 883/2004 and the draft directive). The Council’s position will now be sent to the European Parliament for a second reading, concludes the press release.
