EU Directive on Cross-border Healthcare

It is a delight to be visiting Portcullis House and I last came here about 1985 when I was running Clouds House an addiction treatment centre with my wife, Dr. Margaret Ann McCann which we had founded in 1983.  I was visiting Cecil Parkinson and he and his wife were very supportive of our work due to a family involvement in treatment.

As a result of this visit to Portcullis House we had a visit to Clouds House from a Minister of Health and Civil Servants and following that the Minnesota Model treatment became recognised by the government.

Now 30 years later I am very grateful for the opportunity to make better known two very well kept secrets, both of which greatly empower patients suffering from a variety of different health problems, to widen their choice of medical provider and greatly speed up getting healthcare.

The first well-kept secret is an EU Directive called the Cross Border Healthcare Directive.  The second is a Judgment, less than a year ago in the UK Supreme Court of Justice which I shall come to later.

First the NHS have summed the CBD up very neatly.  I quote “if you are entitled to it here, you are entitled to it there” i.e. if you medically require a healthcare treatment that is provided in the UK by the NHS, you are entitled to receive it in any other Country in the EU with the NHS paying for it.

It is based on two fundamental EU Rights, that of patient mobility across the EU and the freedom of providers to provide their services across an EU border.

Since the late 1990s there were about a dozen Judgments in the EC of Justice which were consolidated into the Cross Border Directive and which became EU Law in October 2013.  Every EU country has had to enact the Directive into their own legal system.  In England it is the “The National Health Service (Cross Border Healthcare) Regulations 2013.  The Government signed up to this knowing that it could cost up to 1% of the NHS budget.

That is the background.  How does it work?  Well first every country must have a National Contact Point or NCP.  The purpose of these is to provide advice on all aspects of the procedures, cautions and warnings when necessary.

Let me give you a simple practical example.  A patient has eye cataracts and needs a day operation.  There is a long waiting list here and it is preventing the patient performing her professional activities or caring for an older relative.  She has heard of the CBD and a friend has told her about a private hospital in Ireland where she can get the operation next week.  She gets a referral from her GP.  She contacts the eye surgeon in Ireland who is able to offer her a consultation by Telemedicine.  She travels to Dublin at her own expense having checked as a precaution with the NCP.  The operation is performed and she is able to stay with family before returning for a check-up with the surgeon.  She pays the bill and obtains a receipted invoice.  Back home the lady completes the application form and submits it to the European Cross Border Healthcare Team, NHS England at Fosse House, Leicester.  Or there is an email address (England.europeanhealthcare@nhs.net)

The patient will then receive reimbursement up to the amount that the operation would cost in the NHS in England.  If this is less than the cost in Ireland the patient has to stand the difference.  The patient has to pay for travel and living expenses, although there is the possibility that the NHS would pay for these in some circumstances.  If for instance they had been able to claim for travel to go to hospital in the UK.  Also the balance of the bill for the operation and the Directive mentions this, but the option is with the NHS.

Patients are warned by the NCP that by stepping outside the NHS they are own and should take care if obtaining the treatment in a country where the culture, language, healthcare governance and professional qualifications are unfamiliar.  Insurance is recommended.  However none of these apply when using a provider in Ireland with the added advantage of cheap travel and no passport required.

All should be straight forward with the run of the mill procedures like cataracts, dental work and stents etc.

One drawback is the NHS has the choice in the Directive of reimbursing the patient once they have paid the bill or pay the healthcare provider directly.  The Directive gives this choice but unfortunately the NHS has decided to take a tough line and not pay the provider directly thus making the patient stump up first.  This is being challenged by MPs and I strongly suggest you all take this up with your own MP.  Legal advice had in fact thrown doubt on this administrative arrangement.  It is grossly unfair and unjust that poorer patients who would have difficulty finding the money before they can claim it back.  This is right against the NHS principals, i.e. treatment is free at the point of delivery.  The NHS have the choice here but make it hard.  I am sure they will back down eventually.

So far I have discussed accessing day treatment using the CBD.  The procedure gets a bit more complicated if in-patient is sought because the Directive declares that the patient should seek prior authorisation beforehand from NHS England.

I have very kindly been invited to give my own healthcare facility in Ireland as an example.  This is the Smarmore Castle Private Clinic in Co. Louth.  We treat alcoholism and other addictions.  It is very difficult to get medically managed in-patient treatment on the NHS but it does exist and at least some 18 NHS facilities provide it.  It is called Tier 4 treatment and is included within a basket of addiction treatment care available through the NHS or Local authorities.  Therefore it must also be accessible across an EU Border, such as Ireland, if desired by a patient and clinically necessary.

Our typical patient will have been progressively developing an addiction problem over several years and has probably tried counselling, AA and even day treatment and it has all been of no avail.  Finally in desperation the family and friends persuade our man or woman that a course of in-patient rehab and detox is essential.  The long suffering GP readily agrees to give a referral for Cross Border care.  An approach is made to the NHS England who require the patient to fill out the application form.  This will be assisted by an assessment by the admitting psychiatrist at Smarmore and this can be conducted by Telemedicine.  Prior authorisation must be sought from the NHS although it is very difficult to refuse.  The NHS team in Leicester will refer the case to the patient’s local Public Health Commissioner to decide on eligibility.  This is to establish that the patient is entitled to NHS services.

They may look at the necessity for such treatment.  Here they must be very careful because the patient may be entitled to reimbursement under the Directive if a Clinician within the EEA/EU determines that they have a medical need for it and it is treatment that would be available to them within the NHS.  This is because the EU Directive on the Mutual Recognition of Professional Qualifications requires any English team to accept the medical opinion of a health professional of another European Country.  If there is a refusal there is provision for appeals.

The Commissioners will also determine the payment to be made which will either be the full amount or a part reimbursement.  Here I should mention that NHS in-patient medically managed facilities can cost £550 a day to run which is considerably more than our charges so the full amount should be reimbursable.  Again this will only be paid once a receipted invoice is produced – again most unjust and I will say challenges are being made here.  Anyway the patient can now start treatment.  As before on production of the receipted invoice, after treatment, the NHS will pay up.

As part of our service we provide aftercare and family support which can be conducted by Telemedicine.  Being a Minnesota Model/12 Step facilitation treatment facility, patients are thoroughly introduced to Alcoholics and Narcotics or Cocaine Anonymous.  Which is widely available for support when returning home.

I have here examples of the CBD application form together with an EU promotional leaflet.  Also contact numbers and something on Smarmore.

I mentioned a second well-kept secret.  This was a Judgment in the UK Supreme Court less than a year ago.  The Case was called “Montgomery v Lanarkshire Health Board”.  It was described by one of the Lawyers on the losing side as the most important change in healthcare in 60 years.

In essence a very courageous lady called Nadine Montgomery gave birth to a CP baby which was the result of being deprived oxygen during the birth process.  She was not fully warned by the Consultant that her particular condition could bring about this result and not offered an alternative C section which she would have chosen if she had been properly informed.  She sued in a Scottish Court and lost, appealed and lost then took her case to the Supreme Court and was awarded 5.5 million, unanimously, by seven Judges.

The Judgment has dramatically changed the way Doctors must inform patients of even the most insignificant dangers that could result from proposed procedures and also must suggest alternative treatment.  In fact the Judgment reinforces guidance already given by the GMC, but now gives it the full weight of law.

Many practical consequences are likely to flow from the Judgment, some foreseen and some as yet unforeseen.  One major one arises out of paragraph 75 of the Judgment, in which it is stated that patients are now widely regarded as persons holding rights, rather than passive recipients of the care of the medical profession.  The ruling in the same paragraph widens the scope to all those delivering healthcare including Health Authorities and Local Authorities.  Now that Doctors are obliged to offer alternative treatment as a result of the patients choice, the Health Authorities will have to brace themselves for the budget implications or else be answerable in public law.

Let me give you a final example of how the Supreme Court Judgment could work with the CBD.

A patient has had several home or community detoxs for alcohol withdrawal there are increasing dangers through a process Kindling.  Has the patient been warned and given an alternative such as in-patient treatment.  It is the duty now by law of the healthcare team to provide this warning and alternative.

A patient has been on Methadone maintenance for many years.  He has never been told of the dangers such as cardiac problems, osteoporosis and cognitive impairment no matter how rare.  Now after the Judgment he must be told and offered alternative treatment such as detox and rehab, which must be a reasonable alternative and available.  Availability in another EU Country using the CBD will be a possibility here.

One of the problems is that the medical administrators and the medical profession are ignorant or not familiar with these two secrets and I hasten to add this includes my own family half of whom are doctors.  It will mean Advocates acting and assisting patients to make healthcare administrators and doctors fully aware of these new patients’ rights.