Your options for medical treatment in England and the EU

By Alan Taylor - 27/06/2008

Are you keeping up with the changes for receiving medical treatment in the UK and the European Union (EU)? Gone are the days when you simply saw your GP if you were ill and were then referred to your local hospital to be treated. Now, although most people will still be treated in local hospitals, you have the option to choose to have your treatment elsewhere in England.

A further opportunity (or a complication depending how you look at it), for anyone inclined to travel abroad for medical treatment has come from rulings from the European Court of Justice (ECJ) and the High Court in the UK, which are shaping part of the Government’s healthcare policy. These court rulings set out the circumstances in which you have a right to receive medical treatment in another European Economic Area (EEA) country which will be paid for by the NHS - either wholly or in part. The rulings provide an additional option for medical treatment alongside the EU’s social security healthcare rules.

The EEA consists of the 27 EU countries plus Iceland, Liechtenstein and Norway. Switzerland applies the EU arrangements in certain circumstances as mentioned later.  

'Free Choice of Referral' Programme

April 2008 saw the start of the full NHS 'Free Choice of Referral' programme and changes to the 'Choose and Book' arrangements in England. (They do not apply to Scotland, Wales or Northern Ireland). These changes now allow you, with help from your GP, to research the treatments on offer, and the success rates, at hospitals in England. This opens up the NHS healthcare market and allows you to be treated at a hospital of your choice in any part of England. This could be at a specialist hospital or at a recognised centre of excellence.
 
But if you take a closer look at this, it is difficult to avoid asking the question: 'when is a choice not a choice?' If your choice of hospital is some distance away or at the other end of the country, then this option is really only available to you if you can afford to pay for the travel and any non-hospital accommodation costs involved - both for yourself and any family member who needs to go with you. It  may also involve more than one visit to the hospital.  

So what this all boils down to, is that if you can afford the related costs - you can exercise a choice.

Similarly, perhaps, if you qualify for travel costs under the Healthcare Travel Cost Scheme you may be able to exercise a choice. But if you cannot afford the related costs and do not qualify for travel costs under the Healthcare Travel Costs Scheme, you may not be able to choose to have medical treatment away from where you live. Help with your travel costs under the Healthcare Travel Cost Scheme is available if you are receiving one of a number of means tested benefits.

This means that in principle the NHS has moved to a two tier system with their Free Choice of Referral Programme. But I am sure that this conclusion would not be accepted by the Department of Health’s policy makers.

Another potential problem, assuming you can afford the travel and accommodation costs where necessary, is that you must be physically capable of travelling to use your choice option.

Everyone pays tax of one kind or another. NICs (these are social security contributions which are now recognised as a tax), income tax, VAT or other taxes are all taxes which fund the NHS. But having paid their taxes not everyone can afford to exercise a choice under the Free Choice of Referral Programme.  

Many people do not support  the free choice option and would rather have access to a high quality local hospital. This was confirmed in the Audit Commission’s report “Is the Treatment Working? Progress with the NHS System Reform Programme” published on 12th June 2008. If  treatments and services in local hospitals across the country were brought up to a uniform high standard then the choice option would no longer be relevant or necessary in the vast majority of cases.

Does the Disability Discrimination Act 2005 affect any of this?

If you have cancer or one of a number of other specified medical conditions, you are treated as being disabled under the Disability Discrimination Act 2005 (DDA) from the date of your diagnosis. The free choice option has created winners and losers but there are also winners and losers among those who are treated as disabled under the DDA. For example, where two individuals are treated as disabled and the NHS pays the travel costs of one of them under the Healthcare Travel Costs Scheme but the other one does not qualify - is this discriminatory?  

I do wonder whether the Government has broken its own disability discrimination rules.

Do rulings from the European Court of Justice affect any of this?

The ECJ has ruled that an institution which provides medical treatment is providing a service. Under Article 49 of the EC Treaty, as applied to healthcare, an individual has the right to access hospital services in another EU country in the same way a hospital, being a service provider, has the right to provide those medical services to a person from another EEA country. The free choice option applies only in England, and because there is no EU cross border movement the ECJ rulings may not be relevant.

The ECJ will not interfere in the way a Member State chooses to set up its domestic social security or healthcare arrangements provided the rules are the same for their nationals and those from other Member States who use them. However, where the EU is involved and discriminatory or equal treatment rules exist things are never quite what they seem. There are rough edges to this argument which I cannot develop here so I leave it to others to ponder over this!    

Topping up drugs alongside NHS treatment

The NHS prides itself that free treatment is available to everyone at the point of need. Great - but what if you are being treated for cancer at an NHS hospital and you have reached the stage when your treatment is no longer working for you? This may be the end of the line for effective NHS treatment, but your consultant may tell you about a drug which is known to help with your condition but it is only available privately.

In many cases the new drug could be used alongside your NHS drugs. Paying privately for drugs which your Primary Care Trust (PCT) will not fund could stabilise your condition, extend your life, give you an improved quality of life for the time you have left or increase your chances of survival.  

Funding your own drugs in this way is a called a “co payment”. However, PCTs will not allow patients to top up their NHS treatment with private drugs. This is seen by the NHS as being unfair to other patients who cannot afford to top up their NHS drug treatment, and it would create a two tier NHS. The argument is that you cannot be an NHS patient and a private patient at the same time. This is not covered by NHS legislation but by Ministerial policy guidelines.

This is a double whammy for the patient - the NHS will not fund the particular drug which your consultant says is best for you, and you cannot pay for it to be used alongside your NHS drugs.

A multiple application is being prepared for a judicial review of the NHS guidelines which bans the  topping up of drugs. This was inevitable because patients and their families are angry that life saving treatments or treatments to extend your life are being withheld and services cut back. This comes at a time when the NHS budget for 2006/2007 was underspent by more than £2bn. We must wait and see what comes from the judicial review but meanwhile patients and their families are faced with massive costs for drugs not funded by the NHS if they wish to prolong their lives.

Money works for free choice but not for drug top up

It is reasonable to say that the policy of the Free Choice of Referral option and the policy to refuse to allow a top up of drugs have become muddled so there are two contradictory policies. There is not a lot of difference between the principle of paying the costs to go to a hospital out of your area under your free choice option, and the principle of paying to top up your drug treatment. If the argument is that you cannot pay for top up drugs because others cannot afford to do so - why does this not also apply to the additional costs for out of the area treatment under the Free Choice Programme?

The principles of private treatment and top ups are further confused when the NHS will pay for planned medical treatment in either a state or private hospital in another EEA country. This comes from an ECJ judgement and there are conditions for doing this as you will see later in the section on the “Article 49 route”.  This means you can have private treatment in Europe under the EC route, or private treatment in the UK under the Free Choice of Referral option, subject to conditions.

Under the NHS rules you have the option, or necessity, of having private dental treatment when you cannot register with an NHS dentist, and you can pay for a private room or an amenity bed in an NHS hospital and you have the option of private consultations with a consultant and private scans and tests before or during NHS treatment. But when it comes to saving or extending your life, you cannot top up your NHS drug treatment with privately funded drugs. NHS policies need to be consistent which is not the case here.

Stand by for a “u turn” on this one!

Planned medical treatment in an EEA country

Another option is to arrange to have your treatment in another EEA country in circumstances where your PCT may pay the cost or part of the cost of your treatment.     

Over the years the options for pre-arranged medical treatment in another EU country have increased, so there are now a number of ways by which you can receive treatment in this way. But a word of warning if you are thinking of going abroad to receive planned medical treatment. All the options which follow need to be explored fully before you arrange your treatment. If you decide to choose an option where the NHS may pay for the cost of your treatment, or part of it, you must speak to your PCT before you go for treatment so you understand your liability for the cost of the medical treatment.  

1. Private treatment

Arrangements can be made privately with a hospital or clinic in another EEA country either directly or though a company which sells a medical package to include travel, accommodation and treatment costs.

2. Private treatment through a health insurance policy

If you have private health insurance which covers the cost of pre arranged treatment in a hospital in an EEA country, or part of the cost, then you will be guided by your insurance company about the cost, payment and any excess payment.

3. Form E112

It may be possible for you to be authorised by the Department of Health to go to another EEA country specifically for medical treatment under the EU social security healthcare rules. The treatment must be available under the state health insurance scheme and it must be recommended by your consultant to the PCT. If your PCT agrees to pay for the treatment they will refer your request to the Department of Health, and if they authorise the treatment they will issue a form E112. The form E112 will confirm to the hospital authorities in the other country that the UK health authorities will cover the cost of the treatment.

Depending on the country you are going to for treatment, you may have to pay a “co payment” charge for part of the costs which may or may not be refundable by your PCT. Information about being authorised to go abroad for specific pre-arranged medical treatment is available on the Department of Health’s website at www.dh.gov.uk/travellers and in the leaflet T7 “Health Advice for Travellers” which is available from any post office.

4. Article 49 route

Under what is called the Article 49 of the EC Treaty route, if you live in the UK and you are covered by the EU rules you may go to another EEA country (except Switzerland) specifically for medical treatment under either the state healthcare system or under private arrangements. On return to the UK you can apply to the NHS for a refund of the cost of the treatment as if it had been provided by the NHS. You must pay the hospital costs in full before a refund claim will be considered. Your PCT will not refund you more than the amount the treatment would have cost the NHS if the treatment had been provided in the UK.  

If the cost of your treatment in the other country is less than what it would have been if you had been treated under the NHS you will receive only the amount you paid in the other country.

This method of having treatment in another EEA country is based on the freedom to provide services in Article 49 of the EC Treaty. As mentioned earlier it has been confirmed by the courts that providing medical treatment is a supply of services under Article 49. This means that, in principle, a state health authority in one Member State may not prevent a person living there from receiving medical treatment in a state or private treatment centre in another Member State.

This option for receiving treatment is not covered by the EU social security healthcare provision. This is a very complex area of EU and UK law which is still developing and it is not simply a question of going to another EEA country for treatment which will be paid for by the NHS. There are a number of conditions to be satisfied, for example, the treatment you will receive in the other country must also be available under the NHS, and the PCT has to exercise clinical judgements on priority of treatment and the management of resources. You must also be aware that the NHS cannot assure you of the quality of treatment in the other country.

I have not explained the considerations in detail because they can only be decided by your PCT. If you wish to seek treatment under the article 49 route you are strongly advised to speak to your PCT before you arrange treatment to find out the principles under which they will consider a refund of medical costs in these circumstances. If you do not sort out this detail before you arrange treatment in another EEA country you may find out later that your PCT may not refund the cost or part of the cost to you.

The Article 49 route is based on European case law (Case C-372/04  The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust, Secretary of State for Health).

If you have a private health insurance policy which allows you to receive treatment in a hospital outside the UK, you may wish to find out if that policy would cover your medical costs. Your insurance company may be prepared to cover the whole of the cost of the treatment rather than the cost of the treatment if it had been provided under the NHS.

5. NHS arrangements

Your PCT may have made arrangements with health authorities in an EEA country for them to treat UK NHS patients. Under these arrangements they may be prepared to refer you for treatment at a hospital in the other country.  

Is there anything else I should do?

In all cases you will need travel insurance, so as well as declaring any pre-existing medical conditions you should tell the insurance company exactly what treatment you expect to receive in the other country. It may be very difficult to arrange medical insurance with an insurance company to cover the medical condition for which you are seeking treatment. If necessary speak with a specialist broker to find out what travel insurance policies, if any, are on offer.

If you are going to another EU country for planned medical treatment you should also take your European Health Insurance Card (EHIC) with you. Information about the EHIC is given in the link at the end of this article to the Department of Health’s website. There is also a link to an article on this website about the EHIC.

And finally ...

All of these arrangements need to be considered very carefully and you should check the information for the E112 and the Article 49 route for treatment on the Department of Health’s website. Speak to your PCT before you arrange treatment to make sure you understand the rules which apply to your treatment abroad and whether you will have pay for any part of the costs.  

There is a lot to consider when making arrangements for planned treatment. If you do not get it right before you commit yourself to treatment outside the UK - you may be liable for significant medical costs.