Published: 10/01/2001, Volume 112, No. 5787 Page 24 25 26

A European Court of Justice ruling propelled the government into allowing NHS patients to be treated on the continent to speed up access to care.Even if uptake turns out to be modest, the impact could be huge, as comparisons are made with standards and services in other countries.

Fifteen years ago, a senior Department of Health official threatened that the UK might have the German healthcare system imposed on the NHS if the European Commission had its way.Ten years ago, it was well-nigh impossible to mention Europe in Quarry House. But this year, the health secretary announced that patients may be sent to other European countries for treatment. So, what has caused this apparent volte-face, and where will it lead us?

The writing has been on the wall for a number of years - for those willing to look. The official government line, both Conservative and Labour, has always been that - as apparently enshrined in the Amsterdam Treaty - the delivery of health services is the responsibility of member states and the EC should merely busy itself with secondary issues such as health promotion, health indicators and rare diseases.

But though this policy was consistent with the principle of subsidiarity enshrined in the Maastricht Treaty, it failed to recognise where the main action was developing.

Step by step, the EC, and especially the European Court of Justice, was developing a role in healthcare within the context of the single European market.

The extraordinary range of healthcare issues that are encompassed by the single European market was demonstrated in a recent study by the European Health Management Association.

1This agenda was driven not so much by the EC's directorate-general for health, but by a variety of other directorate-generals - internal market, competition, enterprise, and so on - that regarded health as merely another commercial activity required to function within the rules of the single European market.

Some member states believed Canute-like that by repeating the mantra of subsidiarity, they could stem the tide. And while many European countries were seeking joined-up government, few practised it when it came to health services. This meant that there was inadequate preparation for, or reaction to, EC proposals that affected healthcare under the umbrella of the single market.

European Court rulings To complicate matters, the European Court of Justice was asked to adjudicate a number of healthrelated cases in the context of the single European market, and each judgement has extended the opportunities for citizens to take advantage of this market to access health services elsewhere in Europe.

The Decker case (concerning spectacles) led to a ruling by the European Court of Justice that citizens are entitled to purchase healthcare goods in any EU member state.

2The Kohll case, based on a request by a Luxembourg citizen to receive orthodontic treatment in Germany, opened the door for patients to receive treatment in other EU countries, though it was heavily circumscribed by provisos.

3While both these cases were clearly pertinent to the Bismarckian countries, such as Germany and the Netherlands, where citizens join a not-forprofit health insurance scheme (sickness fund), most NHS-based countries believed that the European Court of Justice rulings had little relevance to their systems.

But the third most recent case, ruled on in July last year, has had a substantial impact - especially perhaps on the Beveridge systems, where healthcare is financed either through general taxation (for example, UK, Italy) or through local taxation (for example, Sweden, Denmark).

4In this case, the European Court of Justice was asked to consider whether a Dutch man, HTM Peerbooms, who had lapsed into a coma after a road traffic accident, could be reimbursed for 'neurostimulation' - a procedure available in Austria (see box on previous page). Though the details of the ruling will surely be tested again in the European Court of Justice, its significance was inescapable for healthcare policy-makers.

The highest judicial institution of the EU was effectively stating that, while member states were free to organise their own health systems, if they failed to provide the full range of medically recognised procedures without undue delay, then citizens had the right to travel elsewhere in Europe for those treatments. The tab would have to be picked up by the home country unless it could be demonstrated that this would destabilise the financial basis of the healthcare system.

The British response Little wonder that health secretary Alan Milburn decided to make a virtue out of necessity and acquiesce to the European Court of Justice's ruling.

If the NHS cannot rid itself of its seemingly intractable waiting lists and lengthy waiting times, then it makes sense to use spare capacity elsewhere in Europe. Few would disagree that patients in the UK experience more 'undue delay' than virtually any other patients in Europe. And at least when European hospitals are used for their care, no-one can raise that thorny question about consultants diverting patients to their private practices.

One of the most fundamental challenges to UK health and social care systems is a shortage of capacity. It is obvious to the government that, while the long-term solution has to be modernisation of thinking and provision, the short-term solution is to find extra beds wherever they may be. This has led to a healthy pragmatism which puts patients' needs before ideological purity. Thus the private sector, with its modern homes and hospitals, is being embraced, as are European hospitals, which were once beyond bounds.

On 15 October last year, Mr Milburn announced that Portsmouth, East Kent and West Sussex/East Surrey would be test beds for plans to send groups of patients to other EU countries for treatment.

Health authorities and primary care trusts in those areas would be free to contract with European providers, where that was the best option.

In response to a parliamentary question on 29 October, Mr Milburn made it clear that there was no central earmarked budget for overseas treatment. It would be for local purchasers to decide on the strength of the case and the options available.Patients will be offered the choice of going to other European countries for low-risk procedures, such as cataract surgery or joint replacements, but these new providers must ensure high quality and value for money. If the experiment succeeds, the Department of Health plans to send out 'robust guidance' about contracting with other European providers.

Some of these south-coast purchasers have been itching to look beyond the UK for many years.

Labour leads the experiment When the Conservatives introduced market principles in the early 1990s, a number of these purchasers wanted to push the boundaries beyond an internal market and into the rest of Europe. But the government's full-blooded enthusiasm for a true market quickly waned, and it soon looked for stability and a 'steady state' in the NHS.

It is interesting that it is a Labour government, opposed to markets in healthcare, which is allowing the experiment to go ahead.

Though it is perhaps necessity rather than principle which has led to this development, it could do much to reduce the UK's isolationist stance on health and social care policy.

Post-war sentiment about the supremacy of the British welfare state is finally crumbling, and we are starting to look to European partners for alternative models of provision which are more in keeping with 21st-century healthcare.

Clearly, the most obvious benefits of the European Court of Justice's ruling will be at land borders and their hinterlands, where patients - and their relatives - can move easily between countries for elective surgical procedures. But the repercussions of the Peerbooms case will probably spread much further. Inevitably, patients and those purchasing services in other countries will want to assure themselves of the quality of health services in the hospital they will be using. This may lead to the development of quality control on a pan-European basis, perhaps with a European agency accrediting national accreditation organisations.

More controversially, the European Court of Justice ruling might force member states to assess the basic basket of services provided in each EU country. If the UK does not provide services that are available in other EU countries - and which are medically recognised - would it be better to provide those services in the UK, or to allow citizens to travel elsewhere?

It is almost inevitable that the benefits offered by the Peerbooms ruling are more likely to be available to better-educated and better-informed people, those likely to learn of healthcare opportunities through the internet, and who have the linguistic skills and the confidence to manage the complexities of different healthcare systems and their associated bureaucratic procedures.

This potential inequity might be partially avoided if the DoH develops user-friendly arrangements to help patients travelling to other European countries for treatment. Follow-up procedures will be needed, in particular to cope with any complications that may develop after patients have returned to the UK.

There is clearly some patient demand for healthcare in other European countries, though at present it is at a modest level - around 800 UK patients treated abroad in the past four years.These are usually patients seeking to use the E112 system (used for reimbursement when purchasers wish to buy procedures for individual patients in other EU member states) in order to have their maternity care closer to their families, or to receive swifter elective treatment when UK waiting lists are long.

But it has required tenacity and persistence to secure care under the E112 procedures.

It is difficult to know whether these 800 patients will prove to have been the tip of the iceberg when alternative opportunities are made available, or if demand will remain limited.We may be unlikely to see large numbers of patients seeking treatment across the Channel, as many people will prefer to be treated close to home where their friends and relations can easily visit them.But if the option is a week in a French hospital or another two years in pain, UK patients may put aside their qualms.

Whatever the demand, the Peerbooms ruling is likely to have an impact disproportionate to the numbers of patients who take advantage of it. It offers real opportunities for those wishing to challenge either waiting times or the range of services offered by the NHS, and it will encourage more people to compare NHS standards and services with those of other European countries.

The conservatism of English patients may subside when they see that they can obtain quick, modern services, at no cost, in hospitals within easy reach.

Policy-makers and managers must now recognise that the NHS no longer exists in splendid isolation, and that the European dimension must be taken seriously.The focus must shift from the traditional reference points of the US, Canada, Australia and New Zealand to our closer neighbours in Europe.

Though language differences may present some problems, the range of healthcare systems and experiences in Europe offer a wonderful test bed for new ideas in countries which - unlike our US cousins - share our deeply held belief that universality and solidarity are essential elements of healthcare. l REFERENCES 1The European Union and Health Services - the impact of the single European market on member states. European Health Management Association May 2001.

2European Court of Justice.

Judgement of the Court, Case C-120/95 [Nicolas Decker v Caisse de Maladie des Employes Prives]; 28 April, 1998.

3 European Court of Justice.

Judgement of the Court, Case C-158/96 [Raymond Kohll v Union des Caisses de Maladie]; 28 April, 1998.

4European Court of Justice.

Judgement of the Court, Case C-157/99 [BSM Geraets-Smits v Stichting Ziekensfonds and HTM Peerbooms v Stichting CZ Groep Zorgverzekeringen]; 12 July 2001.

Philip Berman is director and Professor Joan Higgins is president of the European Health Management Association.