On 19 January 2011, agreement was finally reached in the European Parliament on new rules on cross-border healthcare. It is anticipated that the text agreed by the Parliament will be formally approved by the Council of Ministers shortly, leaving only national implementation of the directive standing between patients and their newly clarified rights.  

The agreed text addresses the following key points:  

  • Entitlement: patients can only receive healthcare abroad which they would be entitled to receive under the NHS.  
  • Rare diseases: although the directive recognises the importance of co-operation between member states in the diagnosis and treatment of rare diseases, not least through the establishment of expert European Reference Networks, the directive will not permit patients with rare diseases to access healthcare that they would not be entitled to receive at home without prior authorisation from their PCT. o Gatekeeping: the directive now includes the possibility of a requirement for patients to be assessed by a health professional to determine their entitlement to healthcare, ie, patients receiving cross-border healthcare may be subject to the same formalities as patients seeking healthcare in the NHS.
  • Prior authorisation: the NHS will have the option of introducing a system of prior authorisation for patients seeking to travel for healthcare, where treatment involves at least one night in hospital or the use of highly specialised and cost-intensive medical equipment.  
  • Payment: commissioners can either transfer funds directly to providers abroad, or they can reimburse patients who have paid upfront. A compulsory system of direct payments has been avoided.
  • Ceiling on costs: this will be the cost of the treatment under the NHS, unless commissioners choose to pay “extras”, such as accommodation and travel.
  • Information: national contact points will have to be established to provide patients with information related to cross-border healthcare, such as that on quality and safety standards, on request.  
  • E-health: the European Commission will support co-operation on e-health across the EU through the establishment of a network which will consider issues relating to the transferability of patients’ electronic records.  

Until the new directive is implemented in domestic law, which we anticipate to be in 2013, the existing rules on cross-border healthcare will continue to apply and it is important that NHS organisations are familiar with these. By 2013 however, PCTs will be winding down and the NHS will be in the throes of major upheaval. Further clarity will therefore be required over who will assume responsibility for the decision making powers in this area.