Cross Border Healthcare & Patient Mobility: Public Consultation on Scotland's Transposition and Implementation of Directive 2011/24 EU on the Application of Patients' Rights in Cross-border Healthcare.

Introduction

2.1 The majority of EU citizens receive healthcare in the Member State where they live, via the health system through which they are covered or insured. However, in certain instances, it may benefit the patient to obtain healthcare in another European country, where there may be better expertise available, lower costs, more availability of certain highly specialised treatments or where waiting times are shorter.

2.2 EU regulations on the co-ordination of social security systems (Regulation (EEC) 1408/71, which was replaced by revised provisions in Regulation (EC) No. 883/2004 with effect from May 2010) already provide certain levels of reciprocal healthcare cover to EEA citizens. These arrangements apply to tourists requiring necessary care when visiting another Member State, to people living and working abroad or, in certain limited circumstances, those who wish to travel specifically to receive healthcare. The Regulation also covers state pensioners, as social security provisions, including those for healthcare, are transferable around the EU at state pension age.

How the Directive evolved

2.3 While these reciprocal arrangements have existed for many years, current generations of Europeans, accustomed to crossing borders with ease and being able to purchase goods and services from any part of the EU, are proving less willing to accept constraints on how and where they obtain their healthcare. This is often due to perceived advantages relating to quality, favourable cost, waiting times, the availability of different treatments or where citizens have close cultural or familial links to another country.

2.4 Over the last fifteen years, there have been more than a dozen high profile legal challenges in which Member States' interpretation of the rules in respect of obtaining healthcare across borders has been questioned and the European Court of Justice (ECJ) has been called upon to make a determination. The development of this case-law based on individual cases (including a case in 2006 against the UK in the case of Yvonne Watts -v- Bedford PCT³, which the UK lost) was inevitably piecemeal and could not provide a coherent overall approach to patient mobility.

2.5 With so many ad hoc judgments being made in the courts, based on health systems which are very different in organization and funding and leading to many grey areas because of these differences, the development of a Directive was seen as desirable to clarify the law and the rights of citizens across the EU. This new legislation reflects existing rights under the Treaties and ECJ case-law and applies best practice in providing access to these rights. The Council of Ministers and the European Parliament adopted the Directive on 9 March 2011.

2.6 The Directive's main objectives are to:

• Clarify and simplify the rules and procedures applicable to patients' access to cross-border healthcare;
• Provide EU citizens with better information on their rights;
• Ensure that cross-border healthcare is safe and of high-quality;
• Promote co-operation between Member States.

2.7 The Directive sets out the information Member States must provide for citizens from other states considering coming to the country to purchase healthcare. It also sets out the arrangements that a Member State must provide to allow its own citizens to establish the extent of their right to reimbursement of the costs of cross-border healthcare if they choose to seek healthcare in another Member State. Crucially, the 'home' state retains responsibility for deciding what healthcare it will fund, so the Directive is not a way for citizens to gain entitlement to treatments that would not normally be available under their home health service. In addition, Member States are required to be clear and transparent in home legislation or administrative process as to what entitlements to healthcare home patients have within the national health system.

2.8 Member States' are required to transpose the Directive into national legislation by 25 October 2013. This consultation seeks views on the shape of the Scottish Government's plans for transposition.

2.9 The Directive can be viewed or downloaded at:

The Directive of the European Commission and of the Council on the Application of Patients' Rights in Cross-border Healthcare