EU rules are causing trouble for the NHS again. It is not procurement rules this time, but patient rights − an annoying concept at the best of times.

The UK − and in the EU’s book that includes Gibraltar − has until October this year to adopt into its own laws a 2011 directive that sets out patient rights to cross-border healthcare.

‘Some large hospitals − particularly those across the road from the London Eurostar terminal − are hoping to cash in’

Those rights centre on the entitlement of EU citizens to receive healthcare anywhere else in the union and to have the cost of that treatment reimbursed by their domestic healthcare system, in so far as that system exists.

Or to flip it into a more familiar perspective when dealing with the EU internal market: the directive establishes that healthcare providers − public or private − have the right to sell their wares to any EU patient, regardless of that patient’s nationality or funding arrangements.

Unintended consequences

When it comes to the NHS, this entails that a patient may opt to receive a treatment in, say, France, and then claim back the direct costs of that care, up to the cost of that treatment in the NHS.

‘Some of the required changes could be uncomfortable. A national list of treatments funded by the NHS may need to be drawn up’

The likely impact on the NHS is uncertain. Some large hospitals − particularly those just across the road from the London Eurostar terminal at St Pancras − are hoping to cash in. But as travel costs will not be reimbursed, the main UK beneficiaries are set to be richer patients, who will be able to recoup the cost of care they would have otherwise funded privately.

The more immediate impact, however, will be felt by commissioners who will need to police the new entitlements. The Department of Health’s ruminations on the matter in its latest impact assessment have led it to the candid admission that: “Clinical commissioning groups will be smaller in size and more numerous than the current configuration of primary care trusts. They would therefore find it even more difficult to guarantee transparent and equitable decision-making.”

The DH’s proposed solution is to gatekeep the entitlement through NHS England (formerly the NHS Commissioning Board). But some of the required changes could still be uncomfortable. A national list of treatments funded by the NHS may need to be drawn up, to simplify negotiations on what can and cannot be reimbursed.

An unintended consequence could be to remove the discretion currently employed over a whole host of marginal procedures − those which make up the notorious “Croydon list”, used by some local commissioners to limit access − for example.

Sally Gainsbury is a news reporter for the Financial Times,