The Directive on the application of patients’ rights in cross-border healthcare was finally adopted in March 2011, following two and a half years of deliberations. It is widely regarded as the first genuine example of EU legislation specifically in the area of healthcare services, which are traditionally a Member State competence. EPHA has produced a briefing that explains the implications of this important instrument.
The Crossborder Patients’ Rights Directive represents also a response to the Council Conclusions on Common Values and Principles in EU Health Systems, which called for an initiative on cross-border healthcare to ensure clarity about the rights and entitlements applying for EU citizens seeking treatment abroad. Notably, healthcare is not part of the Directive on services in the Single Market (2006/123/EC); hence the Council and Parliament asked the Commission to deal with cross-border healthcare through a separate mechanism.
For an overview of the development of the Directive and the issues involved, please click here and here. EPHA has been active in the process since the beginning and also introduced a number of amendments.
Content and scope
Taking Article 114 TFEU as its legal basis - thereby linked to the economic success of the Single Market - the Directive aims to achieve a more general and effective application of the principles developed by the ECJ. While it clearly states that its transposition into national legislation should not ‘’result in patients being encouraged to receive treatment outside their Member State of affiliation’’ its rules aim to facilitate individual choice and access to safe and high-quality healthcare beyond national boundaries. To this purpose it confirms and expands rules on the following:
The right of patients to reimbursement in applicable situations where they receive cross-border healthcare, including medical treatment, either by physically going to another Member State or through eHealth services
The right of Member States to lay down the criteria regarding the organisation and delivery of health services and social security payments based on national interest, capacities and planning needs
The responsibilities of Member States or affiliation and Member States of treatment regarding the provision of information, treatment and follow-up services; and
Cooperation between Member States in areas related to cross-border healthcare (e.g. electronic prescriptions, eHealth, expert networks on rare diseases)
By providing a legal framework for personal decisions of patients wishing to engage in cross-border healthcare, the Directive goes further than the EU Regulation on the coordination of social security systems, which applies to EU citizens already residing abroad, cases where patients are deliberately sent to another Member State for treatment, as well as to patients requiring emergency treatment while being abroad temporarily.
In its briefing on the Directive, EPHA expresses its views and concerns over the implications that the Directive will potentially have on the main groups that the Directive will impact on:
1. Patients While the Directive creates more choice and eradicates former uncertainties over the distribution of reponsibilities, it may exacerbate health inequalities as only the well-to-do can afford to travel abroad to seek treatment. At worst, this could lead to ’’healthcare tourism’’ for those who have the means to engage in cross-border travel in order to access certain treatments at a lower cost. There are also concerns over digital literacy and access to information - the Directive calls for increased cooperation through the promotion of eHealth services - and over continuity of care given that patients will return to their home countries and adequate follow-up needs to be ensured.
2. Health system managers Although the Member States remain free in deciding on the extent of cross-border healthcare delivery, as well as on any reimbursements on top of the minimum amount (the basic rule is that reimbursements reflect the equivalent service that would have been performed at home facilitates), the Directive could turn out to be a logistical and administrative challenge for health system managers as patients demand to move in between very different health systems. There will also be question marks over granting prior authorisations, and there is a danger that certain countries’ health systems might become oversubscribed.
3. Health professionals For health providers, there could be problems related to increased bureaucracy (e.g. related to payments made directly by patients vs. reimbursements by the Member State of affiliation) and stretched capacities, and the implementation of the Directive will also demand new intercultural skills and responsbilities related to patient safety and the confientiality of patient records and electronic data.
4. Vulnerable groups The Directive is not concerned with people whose ability to travel is constrained, a notable exception being patients with rare diseases. Increased mobility of the affluent and educated could therefore occur at the expense of individuals and groups who are most in need of receiving quality care, whether mobile (e.g., Roma communities) or sedentary (e.g., people living in poverty).
EPHA will continue to analyse the positive and negative consequences of the Directive and monitor its implementation in the Member States.
For further information
EPHA related articles
Regional cross-border cooperation in health: Challenges and promises Secretariat News November 2010 Cross-border Healthcare directive incites debate on eHealth EPHA talks cross-border care with Euronews Patients Rights Directive discussed in IMCO Committee Vassiliou answers questions on cross-border healthcare