Earlier this year we reported that the European Parliament and the Council of Ministers had formally adopted the Directive on patients’ rights in cross-border healthcare first released in draft by the Commission in 2008.

Although the UK has until 2013 to implement the Directive in national law, by which time the commissioning landscape will probably look very different, the NHS Confederation has produced a useful briefing on the implications of the Directive for both commissioners and providers.  

The key points for commissioners, on which this article focuses, are these:  

  • NHS patients have the right to seek in another European country any healthcare that they would have received under the NHS and to be reimbursed by their commissioner up to the amount that their treatment would have cost the NHS to provide.
  • If the care abroad is more expensive, the patient pays the difference. There is no obligation on commissioners to pay travel, accommodation or other expenses that would not be covered if treatment were provided in the UK, although they may choose to do so in individual cases.
  • Patients seeking treatment abroad can be made subject to the same conditions that apply when accessing NHS treatment eg, a patient wanting a specialist consultation abroad would still need a GP referral.
  • Prior authorisation schemes may only be introduced for healthcare which is subject to planning requirements and which involves at least one night in hospital or requires the use of highly specialised and cost-intensive medical equipment. Prior authorisation cannot be refused if the patient is experiencing “undue delay” in receiving NHS care.
  • Commissioners must ensure that patients who receive cross-border healthcare can have access to follow-up care, if they require it, when they return to the UK.
  • Commissioners may decide to pay directly for healthcare in another European country, if this would benefit the patient.  

The NHS Confederation does not envisage a huge swell of patients rushing to be treated in Europe unless NHS waiting lists were to rise sharply; in cases of “undue delay”, of course, authorisation cannot be refused. However, one of the biggest challenges for commissioners will be determining domestic prices where procedures are not covered by a tariff and are subject to significant local variations. Moreover, as the NHS is expected to move to a system allowing for greater variation at local level in the treatments patients are entitled to, it will be critical for commissioners to have a clear list of the healthcare interventions they allow patients to receive.

On the plus side however, the Directive will bring clarity to an area notorious for its uncertainty, which will benefit commissioners as well as patients.