healthcare update - issue eight
‘Health tourism’ – the next step
Draft amendments to the NHS Act 2006 have now been prepared
which will allow patients to potentially recover the cost of
private treatment abroad. The new framework is set out in a
Statutory Instrument. It is prepared in anticipation of the
implementation of a European Directive requiring EU states to have
a system in place to reimburse patients who travel abroad to
receive treatment which they cannot receive under the NHS without
"undue delay". It seems likely that implementation of the Directive
could be some considerable time away and so the Department of
Health have sought to begin to ‘plug the gap’ to support the NHS in
making decisions pending the final Directive.
There has been considerable confusion for some years over the
regulation of so-called "health tourism" since the European Court
of Justice case of Watts v Bedford PCT (2006) decided that
Article 49 of the EU Treaty (prohibiting barriers between states on
the provision of services) applied to healthcare services. The need
for reform is clear - the current position is hopelessly uncertain
for both patients and NHS trusts alike.
The draft amendments apply to patients who suffer undue delay
waiting for their treatment under the NHS. It applies to surgery,
in-patient treatment needing at least one night's stay in hospital
and services requiring "specialist and cost intensive medical
infrastructure and equipment". If a patient's treatment will not be
available because of undue delay then the NHS must reimburse the
patient up to the cost of such treatment if it had been done on the
NHS. The patient must fund the treatment up-front and will only
receive reimbursement if they have obtained pre-authorisation from
the Primary Care Trust.
The crucial arguments are likely to focus on whether there will
be undue delay in the provision of healthcare services. This is
individual to each applying patient and is not judged by, for
example, compliance with national or local targets/standards
(following the Watts decision). The decision will be based
on the patient's pain, disability, medical history and the impact
of the ongoing condition on capacity to work. The Statutory
Instrument refers to an "objective medical assessment", no doubt to
comply with the draft EU Directive's requirement that any system of
prior authorisation must be proportionate and aimed at avoiding
arbitrary discrimination. Once a patient satisfies the requirement
of undue delay then reimbursement is compulsory, there is no
discretion to refuse. The cost to be reimbursed is either the sum
actually paid by the patient or the cost of equivalent treatment
under the NHS, whichever is lower.
The Statutory Instrument only provides the most basic framework.
Its purpose is to give effect to the existing case law pending the
implementation of the Directive. The Department of Health has
drafted more detailed guidance for NHS bodies and this is expected
to be finalised by February 2010. There is doubt as the timescale
for implementation unfolds. It is clear, however, that the
principle of the NHS paying for patients to receive private
treatment abroad in the EU if there is undue delay in the NHS is
here to stay. PCTs must begin to put robust systems in place to
make decisions on patients which both satisfy the new requirements
and protect the trust from legal challenges from patients.
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interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
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