Access to high-quality healthcare, when and where it is needed, is a priority issue for European citizens. In a Eurobarometer survey conducted in 2005 on public opinion, health systems were fourth in the list of the top concerns of EU citizens.

The right to high quality healthcare is also recognised in the Charter of Fundamental Rights of the EU, reference to which will be now made in the to-be-drafted Reform Treaty (replacing the Treaty establishing a Constitution for Europe) to make it legally binding. Article 35 of the Charter explicitly states that “everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.”

The increased movement of patients in the EU, fuelled by common higher public expectations, dissemination of new medical technologies and more information, has contributed towards greater interconnection between health systems and health policies across the EU.

Inevitably, such increased interconnection brings with it many health policy issues, such as quality and access in cross-border care, information requirements for patients, health professionals and policy-makers, scope for co-operation on health matters and how to merge national polices with the EU’s internal market obligations.

But the benefits provided by different EU health systems are determined by the member states, not the Community. However, in accordance with Community free movement rules, citizens are entitled to seek the care to which they are entitled in their own member state, in another member state and be reimbursed. This is, however, subject to a number of conditions that I think need be clarified for the benefit of everyone, given that at Forum we have been recently inundated with queries about these legal uncertainties.

When we talk of patients’ mobility, we refer to those circumstances when patients require quality health care as quickly as possible, which can be best achieved through healthcare provided in another member state. But accessing healthcare depends on having the right information regarding the quality, availability and appropriateness of different services, and on having clarity about the procedures to be followed. This is leading to a series of misconceptions.

Discussions about patient mobility at EU level took a twist in 1998 when the European Court of Justice (ECJ), in its rulings in the cases of Kohll and Decker, established additional principles. Before, the only EU mechanism enabling patients to receive treatment abroad was Regulation 1408/71, which entitles patients whose treatment becomes necessary during a stay in another member state to the same benefits as patients insured in the host member state. It also provides for planned treatment in another member state, subject to prior authorisation.

These ECJ rulings, however, made it clear that as health services are provided for remuneration, they must be regarded as services within the meaning of the EU Treaty and thus relevant provisions on free movement of services apply.

The Court also ruled that measures making reimbursement of costs incurred in another member state subject to prior authorisation are barriers to freedom to provide services. However, such barriers may be justified by overriding reasons of general interest such as seriously undermining the financial balance of social security systems, the need to ensure provision of a balanced medical and hospital service accessible to all or the maintenance of a treatment facility or medical service on national territory that is essential for public health.

Two main principles, based on these two ECJ rulings (and on other subsequent cases including the latest case of Yvonne Watts C-372/04) have thus been established. First, that any non-hospital care to which a person is entitled in his or her member state can be sought in another member state without prior authorisation, and be reimbursed up to that level of reimbursement provided at his or her member state’s own system.

But more importantly, you may seek in any other member state any hospital care to which you are entitled in your own member state, provided you first obtain authorisation from your own system. This authorisation must be given if your system cannot provide your care within a medically acceptable time limit considering your condition. Here again, you will be reimbursed up to at least the level of reimbursement provided by your own system.

In several rulings the ECJ has made it clear that prior authorisation is essential. But given that the rulings also highlight the necessity to take the individual clinical condition into account, no maximum waiting times have been stipulated by the EU.

Translating this for Malta, it is worth pointing out that Maltese public health sector patients are allowed to choose their consultant themselves and in the case of long waiting lists, urgent cases are fast tracked. It is important to stress that before the option of treatment abroad is considered, all local public possibilities have to be exhausted. Thus, a patient under a particular consultant with a long waiting list cannot request to get treatment abroad if he or she can be transferred to another consultant with a shorter waiting list.

Requests for authorisation for treatment abroad have to be referred to the Treatment Abroad Advisory Committee through the consultant responsible for the patient.

It is worth noting that, to date, there are no ECJ rulings that give patients the right to seek hospital care in another member state or in the private sector and ask for subsequent reimbursement.

The European Commission, nevertheless, wants to improve legal certainty concerning the right of patients to benefit from medical treatment in another member state. Several issues are, in fact, left unanswered, for instance: whether there are common minimum rights or standards, shared values and principles for health services on which citizens can rely throughout the EU; what practical issues need to be clarified for citizens who wish to seek healthcare in other member states; what flexibility do member states have to regulate and plan their own systems without creating unjust barriers to free movement; how can individual entitlements and collective restrictions, both for patients and for professionals, be reconciled; what standards of healthcare apply and how is their application monitored, given that practices, outcomes and safety currently vary significantly throughout the Union; how can patients or professionals identify, compare or choose between providers in other countries; and what happens when patients need compensation where the healthcare provided has been harmful, which evidence suggests happens in around 10 per cent of cases.

The Commission’s proposal for a Directive on services in the internal market at the start of 2004 included provisions codifying the rulings of the ECJ in applying free movement principles to health services. This approach, however, was not accepted by the European Parliament and Council on the argument that the specificities of health services were not sufficiently taken into account.

In its 2007 Annual Policy Strategy, therefore, the Commission undertook to develop a Community framework for safe, high quality and efficient health services, by reinforcing cooperation between member states and providing certainty over the application of Community law to health services and healthcare. In September 2006 the Commission launched a consultation process regarding Community action on health services, while towards the end of the year, it launched another consultation process based on the paper Health in Europe: A Strategic Approach – Discussion Document for a Health Strategy, which enabled stakeholders to provide input into how a new Health Strategy should be developed and implemented.

In its input to the consultation process, Malta made it clear that ad hoc proliferation of patient mobility without prior authorisation could have a negative impact on all three dimensions of access, quality and sustainability, and although there may not be large numbers of patients seeking treatment overseas because of the natural geographical barriers, even small numbers could have an impact on healthcare financing, as additional funds would be required to support treatment outside the Maltese healthcare system.

With regard to the clarification of the term “undue delay”, Malta argued that this term needs to be interpreted by each member state in the light of its epidemiology, health priorities, clinical needs and available resources.

Malta also argued that it is important that patients have access to information about their care entitlement to prevent situations where they seek care without prior authorisation and such care cannot be reimbursed since it does not form part of the care package of the competent member state.

The Maltese authorities also stated that there should be clarity about where and when the regulations on Social Security apply and when the principles laid down in ECJ case-law apply.

The current situation is not considered friendly for European citizens and a simplification of the existing rules and provisions would provide more certainty for purchasers, providers and patients.

Also, the ECJ rulings do not give any consideration to the fact that the EU is made up of member states with different needs and resources. There is a need for the ECJ rulings to be placed in the context of the European Union with 27 member states with varying levels of socio-economic development.

More information is available from Forum Malta fl-Ewropa, telephone 2590 9101 or email: [email protected]