Entitlement to Socially-Covered Health Care vs. Priority Setting: ECJ'S Decomposition of the NHS?
| Published date | 01 September 2011 |
| DOI | 10.1177/138826271101300302 |
| Date | 01 September 2011 |
| Subject Matter | Article |
HeALtH CARe vs. PRioRity setting:
eCJ’s DeComPosition oF tHe nHs?
Tomislav Sokol*
Abstract
The European Court of Justice has, in just over a decade, developed considerable
jurisprudence on persons accessing health care in EU Member States in which they are
not social y protected. The approach is centred on the individual patient’s entitlement
to receive the best possible health care to al eviate his/her medical problem anywhere
in the EU. However, this has created serious problems regarding the balance of basic
principles governing the English NHS, and the free movement principle of EU law.
The aim of the paper is to analyse the English case-law on entitlement to
social y-covered health care and see if suggestions for a more balanced EU regime
on patient mobility can be made. The analysis of the English case-law demonstrates
that decisions on entitlement to health care are focused on limited resources and
making priority decisions at the local level. The investigation of the Court of Justice
jurisprudence shows that the Court gives priority to individual patients’ needs and
entitlements, while disregarding limited resources and priority decisions. On the
basis of these findings, the paper proposes a more balanced course of action by the
Court of Justice, taking into account the logic of the English courts.
Keywords: entitlement; free movement; local commissioning; NHS; priority setting;
social procedural jurisprudence
*
PhD Researcher at Katholieke Universiteit Leuven, Institute for Social Law, and Lecturer at Zagreb
School of Economics and Management. Address: Čičkovina 24c, 10000 Zagreb, Croatia; tel: + 385
91 8940 211; e-mail: tsokol@zsem.hr. The author would like to thank Professor Danny Pieters and
Professor Paul Schoukens for their suggestions and insights which contributed to the production of
this article.
European Journal of Social Security, Volume 13 (2011), No. 3
317
Tomislav Sokol
1.
INTRODUCTION
Health care is probably one of the hottest political issues of the modern era. This is
not hard to conclude, since human beings are, for large parts of their lives, especially
at the beginning and the end, directly affected by the way in which health care is
organised and delivered, and by whether it is covered by the state, private insurance
or through out-of-pocket payments by the patients in question.
Within the European context, health care represents one of the crucial sectors
in which government policies are clearly visible. This is so due to the fact that the
European Union is (still) not the main player in this area, which means it is impossible
to shift the blame for domestic policy choices, or lack of them, onto Brussels. This
situation is clearly reflected within the Treaty on the Functioning of the European
Union (hereinafter TFEU), which leaves the crucial competences of organising and
delivering health care services, and their social coverage, with the Member States.1
Nevertheless, an important development has happened in the last 12 years,
following the European Court of Justice’s judgement in Raymond Kohll v Union des
caisses de maladie. This judgement expanded the scope of primary law rules on the
freedom to provide and receive services in the area of the social coverage of health
care, in situations where persons travel outside their state of social protection (the
competent state) to obtain (planned) health treatments and seek coverage of those
treatments from the competent state. The Court of Justice has emphasised the free
movement of patients and their freedom to receive the competent state’s coverage of
treatments obtained abroad.
Within this area of patient mobility, the Court of Justice has used an approach which
places a strong emphasis to the individual’s entitlement to receive the best possible
health care anywhere in the EU to treat his/her medical problem. This jurisprudence
has created problems in terms of balancing the free movement principle of EU law, and
the basic principles underpinning the National Health Service (hereinafter NHS) in
England (this is the English rather than UK NHS, as health care is one of the devolved
competences within the UK).2
1
TFEU Article 168; TFEU Article 4(2) mentions ‘common safety concerns in public health matters, for
the aspects defined in this Treaty’ as one of the competences shared between the EU and the Member
State. Furthermore, the protection and improvement of human health is expressly mentioned as one
of the competences where the EU can support, coordinate, or supplement Member states’ actions,
according to TFEU Article 6. It is also stated in TFEU Article 9 that, in defining and implementing
its policies and activities, the EU will take into account, inter alia, the guarantee of adequate social
protection and protection of human health; TFEU Article 153.
2
Court of Justice 28 April 1998, Case C-158/96 Raymond Kohl v Union des caisses de maladie,
[1998] ECR I-1931. On devolution see, for instance, Northern Ireland Act 1998 Chapter 47, as
amended by The Treaty of Lisbon (Changes in Terminology) Order 2011 SI 2011/1043; Scotland
Act 1998 Chapter 46, as amended by The Treaty of Lisbon (Changes in Terminology) Order 2011
SI 2011/1043; Government of Wales Act 2006 Chapter 32, as amended by The Treaty of Lisbon
(Changes in Terminology) Order 2011 SI 2011/1043.
318
Intersentia
Entitlement to Socially-covered Health Care vs. Priority Setting
The English health care system and its relationship with EU law will represent the
focus of this paper, which is part of a larger project that aims to determine to what
extent the Member States of the EU can limit access to medical treatment abroad
by way of limiting social coverage for the treatment. The described goal is achieved,
inter alia, by comparing national rules on social security in select countries (namely
England, Ireland, Slovenia, and Croatia, as an EU candidate country) with the EU
legal framework. Finally, the project aims to find a balance between national social
security objectives and the free movement of patients as defined by EU law. Within
this project, certain important points of contention between the logic of the English
legal system and that of the European system have become visible, and will be covered
by this article.
The aim of this article is to analyse the case-law of the UK (English) courts and see
whether, on the basis of this analysis, a more balanced approach concerning patient
mobility in the EU can be developed than the one currently used by the Court of
Justice.
The method of the paper will be, in part 2, to analyse the structure and core
principles of the NHS and the logic that UK (English) courts use when assessing the
possibilities that patients have for obtaining socially covered health care from the
NHS. The English courts’ logic will then, in part 3, be compared with the European
Court of Justice’s jurisprudence on patient mobility (the free movement of patients)
within the EU. On the basis of the findings of the preceding two main parts, part 4
will seek to propose a balanced course of action, combining the two legal systems’
approaches to social security coverage of health care.
Finally, it is important to add that the paper does not focus on the recently-adopted
secondary EU legislation regarding cross-border patient mobility (hereinafter the
Patient Mobility Directive). The first reason for this approach is that this legislation
aims primarily to codify the Court of Justice’s case-law. Furthermore, there is a quite
long way to go for the period of the directive’s transposition to expire (on 25 October
2013),3 and the Court of Justice will always have the final say on the matter, whether by
applying primary or secondary EU law. Therefore, we should wait for its interpretation
of the relevant provisions before undertaking additional analyses. However, the most
important aspects (for this paper) of the Patient Mobility Directive are discussed,
to illustrate the most recent developments at the EU level regarding the coverage of
health care obtained abroad.
3
Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the
application of patients’ rights in cross-border healthcare [2011] OJ L88/45 (the Patient Mobility
Directive) Article 21.
European Journal of Social Security, Volume 13 (2011), No. 3
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Tomislav Sokol
2. NHS
2.1. PERSONAL SCOPE OF APPLICATION
The NHS covers, in principle, all inhabitants,4 and is financed, primarily, from general
taxation. The basic criterion for coverage is whether a person is ordinarily resident in
the UK or not. The term ‘ordinarily resident’ is defined by case-law. Anybody who
is voluntarily and lawfully living in the UK, and for a settled purpose, is considered
to be ordinarily resident. This concept is based on a decision by the House of Lords5
relating to education, but it is commonly accepted to be of general applicability. In
practice, the concept should be interpreted based on the following:
‘Trusts need to make a judgement as to whether a patient is ordinarily resident in the light
of the circumstances of that individual patient. But there are several elements which all
need to be satisfied. For example, a person who has the right of abode or who has been given
leave to remain and has an identifiable purpose for their visit may not meet the...
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