The European Union is very much a work in progress and the rights of its citizens are continually evolving. Here is a brief look back at how the new Directive on cross border healthcare came about.
The history of EU rights
Since the Treaty of Rome created the European Community in 1957, citizens of member states have benefited from reciprocal social services arrangements between their home nation and other nations within the community. These included the rights of retired citizens to transfer pension and other social security rights, accrued in their home state, to another EU country.
These arrangements have been extended and refined through subsequent treaties, including the Maastricht Treaty in 1991 and the Lisbon Treaty in 2007, leading to the current situation of a free and open market across all member states in which services may be obtained across borders. This includes the right to access cross border healthcare in any EU country.
European Court of Justice rulings on cross border healthcare
The European Court of Justice exists to interpret the laws set out in the various European Union treaties. Their judgement on individual cases becomes ‘case law’, and determines the way in which the particular aspect of the law or right is applied in the future.
In the last 20 years, there have been more than a dozen high profile cases in which the right to cross border healthcare has been challenged in the court and key rulings have been made.
For example, in 2006, Yvonne Watts took the UK Government to court over their refusal to pay for her hip replacement operation in France. The court ruled that the UK did not have sufficient systems in place for citizens to access cross border healthcare. They also offered clarity on the decision making process required to define an ‘undue waiting time’, stating that a medical assessment of each individual patient is required to determine what constitutes an ‘undue delay’. The NHS could not claim that no undue delay had occurred by citing arbitrary waiting time targets set by the UK government or the local primary care trust.
A need for clarification
With so many ad hoc judgements being made in the courts, and so many grey areas existing within and between countries, it became clear that a Directive was needed to clarify the law and the rights of citizens across the European Union.
This primary legislation brought together existing rights under previous treaties, best practice in providing access to these rights, and the judgements and case law of the European Court of Justice.
The creation of the Directive on cross border healthcare
The first draft of the Directive appeared in 2008, but this was considered to focus too heavily on the patients’ rights and was rejected as not fit for purpose.
The Directive was then renegotiated over a period of two and a half years, resulting in a revised draft being agreed in December 2010. This was voted on in January 2011, ratified by the Council in
February 2011 and became law on April 4th 2011, when it was listed in the European Journal.
The future
Member states have until October 2013 to implement the Directive and the Commission has indicated that it will be closely monitoring this process to ensure that it is implemented fully across the EU by the deadline agreed.
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