OSE/EPSU Report "Europeanization of national health systems - National impact and EU codification of the patient mobility case law"

(Brussels, 28 September 2012)

EPSU has published the report "Europeanization of national health systems - National impact and EU codification of the patient mobility case law". It has been commissioned from Observatoire Social Européen (OSE) and was written by Dr. Rita Baeten.



In March 2011 the Directive on the application of Patients' Rights in Cross-Border Healthcare (2011/24/EU) was signed into EU law. This Directive is the result of a lengthy and laborious policy process aimed at finding adequate responses to the rulings of the Court of Justice of the European Union (CJEU) with regard to reimbursement of health services outside the state where the patient is socially insured. Member States have until October 2013 to transpose the Directive into national legislation.



The Directive aims to codify the case law by clarifying the rights of patients to seek health care in another EU Member State and to ensure the proper conditions for receiving that care. It is structured around three main areas. First, it provides a specific framework for reimbursement of care received abroad; secondly, it addresses the question as to which MS, in the case of cross-border care, should be responsible for ensuring quality and safety standards, information, redress and liability as well as privacy protection; and thirdly, it aims to encourage European cooperation on health care in specific areas.



To assess the potential impact of the application of the free movement rules to healthcare and of increased patient mobility, the study distinguishes four different types of impact: on health systems; on patients’ access to care; on quality of care and patients’ rights and finally, on healthcare workers. The analysis of the potential impact on health systems focuses on the regulatory powers of health authorities under the free movement principles and looks at the way in which the Directive succeeds in preserving these powers. Indeed, healthcare systems are characterized by extensive regulation aiming to address the important market failures in this sector and to ensure the most cost-effective use of the limited public financial means. These regulatory frameworks risk coming under pressure through the application of the EU principles on the free movement of services.



As was illustrated in some of the case studies, domestic actors draw legitimacy from the jurisprudence to further their aspirations and to exit the domestic social system. The case law was used by insurers to acquire new instruments to compete and by providers to acquire more possibilities for commercial behaviour and price increases. Private, commercial providers also reinforced their positions. Examples include:
- threats to question the domestic contracting system, with as a result that compliance has been assured by a strong (and effective) increase of doctor’s fees (Luxemburg);
- setting up of a broad coalition pushing for commercialisation of hospital services (Belgium);
- selective contracting by sickness funds in the Netherlands;
- set up and promote domestic healthcare facilities for export (Belgium and Poland).



Also, public authorities make use of the jurisprudence to support domestic reform agendas, such as addressing waiting times, make the health care system more businesslike and increase patient choice (UK) or the introduction of more competition in the system (the Netherlands).



When discussing the potential impact of the Directive on patients’ access to care, a distinction should be made between accesses to cross-border care on the one hand and access to care for the majority of patients who stay at home for treatment:
- The impact on access for patients who go abroad is found to be positive. (S)he has closer, quicker or more access to care and can choose between more providers. However, the procedure for cross-border care based on the Directive is in most of these respects less beneficial then the procedure based on the Regulation on the coordination of the social security systems. However, patients can, through the Directive, acquire access to care that is closer to home, but in another Member State and also provider choice increases.
- The impact of cross-border care on equity in access to care was found to be negative. Socially advantaged groups are likely to make more use of the possibilities to receive care abroad. Also, access to cross-border care is easier for patients who are fit to travel and who have no co-morbidity. Cross-border care can incentivise providers to select the easiest to treat patients, whereas they usually are not allowed to do so under the domestic system.



When discussing the impact on quality of care, again a distinction should be made between the impact on care for cross-border patients and impact on quality for patients who stay at home. In a cross-border context, continuity of care can be problematic. The Directive only partially succeeds in addressing this. Furthermore, the Directive does not provide robust guarantees with regard to the quality and safety of cross-border care and thus patients will have to rely on the quality frameworks of the country of care provision.



Cooperating healthcare professionals, in particular in initiatives allowing organised patient mobility, can learn from each other and new procedures and approaches can be introduced. Many projects allowing patients treatment abroad are embedded in a wider cooperation involving cooperation between health professionals, exchange of knowledge, joint training and education programs, exchange of professionals, experience and best practice.
- Medical doctors, in particular specialists providing highly specialist care, consider treating foreign patients as a way to strengthen their reputation and skills as well as to establish links with colleagues abroad. The development of European reference networks between healthcare providers and centres of expertise in the Directive responds to this aspiration.
- Cross-border care can increase competition between providers and incentivise them to perform better. It can put pressure on health professionals to treat more patients, and sometimes increasing competition is an underlying motive of purchasers contracting abroad.
- When numbers are important, patient mobility can have an impact on employment opportunities and workload. In the receiving country, treatment of patients from abroad could in principle lead to expanding capacity and recruitment of additional staff. However, when there are supply shortages, as is the case in many countries for nurses, it could increase workload.
- The sending country, on the other hand, can in principle face closure of specific services. However, health authorities usually prevent unwanted closure of domestic infrastructure.
- Healthcare workers can be confronted by patients with expectations and attitudes that differ from domestic patients. They could furthermore be encouraged to acquire skills to communicate with the foreign patients including culture and language.



- OSE Report "Europeanization of national health systems - National impact and EU codification of the patient mobility case law" (September 2012; author: Dr. Rita Baeten, Observatoire Social Européen (OSE))





The research commissioned was done with the financial assistance of the European Commission

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