The EU's cross-border healthcare directive came into force in England, Wales and Scotland on 25 October 2013, and in Northern Ireland on 27 December 2013. It aims 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 cooperation between member states.
If you are entitled to it here, then you can get it there.
Based on the principle that, "if you are entitled to it here, you can get it there" the Directive allows EU citizens to choose to receive a healthcare service (including private and unplanned care) in another member state and to seek reimbursement of the costs.
This is dependent on the healthcare service being the same as or equivalent to a service that would have been provided to the patient within the NHS in the circumstances of their case.
The right to claim a reimbursement of costs is limited to the cost to the NHS of the same or equivalent treatment had the patient obtained that treatment from the NHS.
Implementation of the Directive will have significant implications for doctors, patients, funders and other providers in numerous areas relating to the quality, safety and continuity of care.
What is the impact on doctors?
As advised by the Department of Health, NHS clinicians and commissioners cannot be held liable for any failures in treatments organised by the patient and undertaken in another European country under the Directive. Their role is strictly limited to helping facilitate this if that is the patient's expressed wish.
As UK patients seeking healthcare in another EEA state will be stepping outside of NHS jurisdiction, it is the law of the country of treatment that will apply and therefore it is the patient's responsibility to be clear on who in the member state of treatment is accountable for assuring their safety throughout the course of their treatment.
With the number of patients seeking to receive healthcare in another EEA state increasing, the BMA sought legal advice to clarify this point with specific relation to GPs, those doctors most likely to be asked to refer patients overseas. The advice confirms that a GP (in England and Wales) 'could not be held directly responsible for negligent treatment administered by a wholly independent healthcare provider in another state of the Union'.
National Contact Points (NCPs) are responsible for providing information to patients on those services, interventions and treatment regimes that are generally available to NHS patients considering cross-border healthcare. Such information will help them understand whether they can access the treatment they require, whether they can expect reimbursement of their costs and if they need to seek pre-authorisation in advance of receiving treatment abroad.
NCPs will also provide a network of national or sub-national bodies to assist with the exchange of information and help smooth the path for patients looking to access treatment in a particular member state. The information given to patients or citizens by NCPs on quality of healthcare, patient safety and procedures to follow is intended to help people make an informed choice on the healthcare they seek.
What about treating 'visiting patients' to the UK?
Doctors would need to explain and evidence the lack of capacity to demonstrate that a refusal is necessary and not discriminatory.
The Directive does not require providers to accept 'visiting patients' for planned healthcare if this would be to the detriment of ensuring sufficient access for their own patients with similar health needs, nor to prioritise them to the detriment of other patients, for instance by increasing waiting times.
However, doctors would need to be able to explain and evidence the lack of capacity and demonstrate that refusal is necessary and not discriminatory against nationals of other states.
Doctors who provide treatment to visiting patients must:
- Provide patients with relevant information on treatment options and quality and safety;
- Provide clear invoices and price information;
- Apply fees in a non-discriminatory manner;
- Ensure transparent complaints procedures and procedures to obtain redress;
- Apply adequate systems of professional liability insurance or similar;
- Respect privacy in the processing of personal information;
- Supply patients with a copy of the record of their medical treatment.
- Apply the same scale of fees for healthcare to visiting patients as for domestic patients.
What is the impact on patients who wish to be treated abroad?
Patients wishing to access treatment in another EEA Member State should contact their NCP in advance of travelling to discuss whether prior authorisation of treatment (to ensure reimbursement of costs) is required, as well as what levels of cost reimbursement will apply.
In the case of retrospective claims for reimbursement, NCPs will also be able to advise how the responsibility for granting or refusing authorisation is determined.
Patients should also be aware that there may not be the same standards of care, there may not be the same styles of treatment or aftercare and there may be language barriers to negotiate in other member states.
In seeking healthcare in another EEA State, the patient is stepping outside of NHS jurisdiction - consequently, it is the law of the country of treatment that will apply and therefore it is the patient's responsibility to be clear on who in the member state of treatment is accountable for assuring their safety throughout the course of their treatment.
Dissemination of such information will be facilitated by the NCPs.
What does the BMA think?
We welcome the principle of greater choice for patients. We also support the principle of cross-border patient mobility and support the efforts made through the Cross Border Directive to consolidate patients' rights in these areas.
While it is important that all patients are able to take advantage of their rights provided under EU law, should they wish to, the BMA will continue to work with the UK government and devolved administrations to review the Directive's impact upon the profession.
What happens now?
The Directive is hugely complex and relatively untested so its implementation will invariably require further fine tuning.
For example, on 20 November 2013 guidelines were adopted to make it possible to share basic health information for a patient across borders.
This basic information will include both administrative data - i.e. personal information, details of healthcare provider in home country and insurance information - and clinical data - i.e. information about allergies, vaccinations and recent surgical procedures.
The guidelines make it possible for patients, upon explicit request, to have a summary of their electronic health record available when visiting another Member State. This means that in the event of planned, unplanned or emergency care, the doctor in the country of treatment will have an electronic overview of the patient, and a set of basic administrative and medical information, which will improve patient safety.
If in doubt as to the obligations that it places upon you as a doctor, you should seek clarification from your NCP.
It is possible that the inflow of 'visiting patients' to the UK may create a demand exceeding existing capacities and necessitate the control of costs relating to the planning or funding of services. The Directive allows member states, in exceptional cases and where this is both necessary and proportionate, to adopt measures controlling access to treatment to ensure sufficient and permanent access to healthcare for domestic citizens.
The NCPs should be facilitating data collection methods to assist with the provision of an evidence base.
The BMA will be developing further resources to offer practical support for our members.
Find further information to accompany the implementation of Directive 2011/24/EU on patients' rights in cross-border healthcare:
National Contact Points
England - www.nhs.uk/nationalcontactpoint
Scotland - www.nhsinform.co.uk/Rights/Europe
Wales - www.nhsdirect.wales.nhs.uk/travelhealth/NCPs
Northern Ireland - www.hscboard.hscni.net
NHS (Cross Border Healthcare, England and Wales) Regulations 2013
Supporting information (PDF)
Regulations and Directions
NHS (Cross Border Healthcare) (Scotland) Regulations 2013
Regulations and Directions
NHS (Cross Border Healthcare) (Wales) Regulations 2013
Regulations and Directions