Health and Sport Committee

Meeting date: Tuesday, October 1, 2013

Official Report 610KB pdf

---

Subordinate Legislation

---

National Health Service (Cross-Border Health Care) (Scotland) Regulations 2013 [Draft]

Item 4 is consideration of another draft instrument that is subject to the affirmative procedure. We will take evidence from the Cabinet Secretary for Health and Wellbeing and his officials before we have the formal debate on the regulations. I welcome the cabinet secretary, Alex Neil, and his Scottish Government officials, who are John Brunton, European cross-border healthcare policy manager; and John Paterson, divisional solicitor.

Cabinet secretary, I invite you to make opening remarks.

Thank you, convener. Until quite recently—a decade or so ago—there was little discussion about patient mobility at European level. The United Kingdom and some other member states that have similar health systems argued that European Union treaty law applied only to insurance-based health systems.

However, in 2006 the European Court of Justice delivered its judgment in the Watts case, which concerned an English national health service patient who required hip replacement surgery. She had travelled to France to have the procedure and subsequently sought to recover the cost of the treatment from her primary care trust. The court found that, under the freedom to provide services articles in the Treaty on the Functioning of the European Union, patients have the right to obtain healthcare services, including private healthcare, in another European economic area country and be reimbursed on their return home. The patient pays for the treatment up front and has a right to claim reimbursement up to the amount that the same or equivalent treatment would have cost had it been provided by the state at home—the NHS, in Scotland. Where the home cost is lower, the actual amount is all that is reimbursed.

In July 2008, the European Commission published the draft directive on the application of patients’ rights in cross-border healthcare, to codify case law and provide a legal framework for cross-border activity. The directive was agreed by the European Parliament in February 2011 and became European law in April of that year.

The 2013 regulations transpose the directive into Scottish legislation where necessary. They provide a legal basis for the NHS to introduce prior authorisation arrangements for expensive specialist treatment, and they limit the amount of reimbursement to what the treatment would have cost the NHS in Scotland if it had been provided here.

An important point is that the home state retains responsibility for deciding what healthcare it will fund on a cross-border basis. The directive is not a way for people to gain entitlement to treatments that would not normally be available at home. If I may put it simply, if you are not entitled to it here, you cannot get it there.

A key theme of the directive is the emphasis that is placed on national and local health bodies in making information on rights and entitlements publicly available and easily accessible. The intention is to establish a network of national contact points throughout the EU to facilitate the exchange of information on healthcare quality, safety, availability and accessibility, which will help patients to make informed choices on the treatment that they seek and where it is provided.

There will be national contact points in each of the four UK countries, which will be linked to each other and to national contact points in other member states. The appropriate location for Scotland’s national contact point is within NHS inform—the information arm of NHS 24. The 2013 regulations designate NHS 24 as the provider of that function.

The NHS in Scotland provides first-class care, with quality and safety at the heart of all that it does, and there are short waiting times for the vast majority of services. Therefore, I do not expect that a large number of Scottish patients will wish to use the European health provisions to travel overseas for treatment that is, for the most part, readily available at home. It is estimated that currently fewer than 50 Scots do that in a 12-month period. However, like all EU citizens, Scots have the right to access healthcare in other European countries, and we must have legislation in place to allow them to exercise that right if they so wish.

The directive applies to patients from other parts of Europe who wish to receive treatment in Scotland. However, there has been little, if any, such activity to date. NHS boards have a duty to identify and record such activity and will continue to do so.

It should be noted that medical priority applies to all patients, regardless of their country of origin. There is no specific requirement on NHS boards to accept patients for planned healthcare if that would be to the detriment of our own patients with similar health needs.

The regulations provide a stable foundation for patients to exercise their European healthcare rights and for NHS Scotland to handle cross-border healthcare applications, and they meet our European obligation. I am happy to answer any questions.

I welcome your comments and agree that we have one of the best health services in the world. This is quite exciting subordinate legislation. As you said, the majority of EU citizens receive healthcare via the healthcare system in the member state in which they live. You said that they must have prior approval before they go elsewhere. Many ad hoc judgments were being made in the courts, on the basis of different health systems, so the development of an EU directive was seen as necessary. The directive clarifies and simplifies the rules; facilitates freedom of movement; provides EU citizens with better information on their rights; ensures that cross-border healthcare is safe and of high quality; and promotes co-operation.

If, like me, you have a European health insurance card, you can access EU healthcare. Do you agree that this policy dispels the myth that, if and when Scotland becomes independent next year, people who live in Scotland will not be able to go to England for healthcare?

Absolutely. That is a myth, because every country already has cross-border arrangements, which do not apply just in the situation that we are talking about. For example, we have had patients transferred to Sweden for specialist care, and other countries, including England, send patients to Scotland for specialist care. Glasgow Southern general hospital is a good example of a hospital that has an international reputation for dealing with certain types of head injury. I agree totally with you.

I have two quick questions for information. Is the cost of an individual’s travel taken into account? If a waiting time applies—that is fairly normal in every country—does someone who presents here or someone from here who presents in another country jump the queue, or are they just slotted into the system?

If care was planned, the individual would be slotted into the system. If the situation was urgent, they would be given priority, because an urgent case would be given priority in Scotland. The case that I cited of somebody who was treated in Sweden in the past three years was very urgent. A hospital there had to be ready to accommodate that person.

The approach to travelling costs would be similar to the means-tested approach to claiming travelling expenses in Scotland. Travelling costs for planned care would be subject to an up-front agreement between the patient or their representative and the health board. For unplanned care, people would not be entitled to accommodation costs, but they could be entitled to travel costs on the basis of the scheme for travel costs in Scotland. In the Highlands and in Western Isles NHS Board’s budget, for example, travel costs are a not insignificant feature.

11:15

Could NHS Scotland refuse to reimburse patients who received treatment in another European economic area country?

It could, if it had been planned care and the patient had not received prior authorisation from the health service in Scotland. We are not obliged to pay in all circumstances.

Broadly speaking, there are two circumstances in which this is relevant. The first is if someone who is travelling in the European economic area—which of course includes countries such as Norway that are not in the EU—has a genuine emergency and requires emergency treatment. Quite frankly, I do not see us refusing to pay for treatment in such cases. On the other hand, if someone thinks that they will have to wait too long for a particular procedure in Scotland and clearly abuses the system by trying to jump the queue and get it done in Germany or wherever, we will normally refuse to pay for the treatment.

In what circumstances is prior authorisation necessary?

Under the new treatment time guarantee, we always ensure that people have the ability to get the treatment anywhere in Scotland, which means that if they cannot get it within the 12-week period in their own health board, they will be offered alternatives. For example, if they need an orthopaedic or heart procedure and cannot get it in their health board within the 12 weeks, they might be offered the services of, say, the Golden Jubilee national hospital. If a procedure can be done within a reasonable time only outside of Scotland, we will normally allow that to happen. The first option would be to offer treatment south of the border rather than in a foreign country, but it would depend on the procedure and where the specialty existed.

When can prior authorisation be refused?

If the criteria are not met. There is a list of specialist procedures that people are entitled to. However, those procedures are very expensive so, unless there is some very good reason, we will not allow or agree on a prior basis for someone to have it done elsewhere, especially if there is spare capacity in Scotland and it is available within a reasonable time period.

Given the importance of the provisions in the directive, are there any plans to make people aware of its contents? You have said that fewer than 50 Scots have taken advantage of cross-border healthcare in the past 12 months, but all Scots have a right to do this if they so wish.

I am not planning to run a television advertising campaign but, at the same time and in the appropriate circumstances, patients have a right to know what options are available to them. This is one of the options that, in certain circumstances, are available. Obviously, a lot of this is co-ordinated through NHS National Services Scotland.

Most of what I was going to ask about has been clarified in the response to Aileen McLeod’s questions. There might be a slight overlap in this question but, just to be clear, would prior approval for anyone normally resident in Scotland to go outwith Scotland and get healthcare somewhere else in the European economic area be given on the basis of clinical priority? What if you knew that you could get your hip replaced within 12 weeks but you thought that you would just go to Spain and get the treatment, say, six weeks ahead of everyone else in the queue? Have assurances been built into the system to ensure that, as you said, there is no such queue jumping?

Unless there are other very extenuating circumstances, that is a very good example of a case where someone would not get prior agreement to get the operation externally. There is an approval process and, as the lead agency for the health service in Scotland, NSS has overall responsibility for this area of activity and would not give prior approval under such circumstances.

That is helpful. I have to say that I cannot really think of an example in which someone would speculatively seek healthcare in another country, given that, to get their money back, they would have to get prior approval based on clinical need and priority before they took their journey—unless, of course, emergency healthcare were required.

Would people coming to Scotland from elsewhere in the European economic area for healthcare have to make an up-front payment to the Scottish NHS or whoever it might be? I have heard anecdotally that it can be quite difficult to reclaim costs from others using the Scottish NHS who do not necessarily have that entitlement. They are of course entitled to be treated if they need treatment, but I am talking about the cross-border transfer of cash to repay the Scottish NHS for the costs incurred.

It would absolutely be an up-front payment. However, I want to draw a distinction with regard to those coming to Scotland for treatment, who are, as I have stated, very few and far between. Some of the press coverage on this issue, particularly south of the border, has centred on people coming from outwith the European economic area, and that is where the difficulty in recouping some of the costs has arisen.

That is very helpful. I had read similar press reports, and it is good that you had the chance to clarify the issue this morning. I have no further questions.

Do we know where the other UK nations are with regard to adopting these regulations?

I am not sure what stage they are at, but they all have to adopt them. The policy has, in fact, been adopted for a number of years now; as required by new EU law, we are simply transposing into legislation and putting on a more permanent footing what had been interim arrangements in Scotland. However, we can check exactly where the other three nations are and inform the committee.

It would be interesting to know.

The regulations cover planned procedures that, as my deputy convener explained, an individual might be able to access earlier elsewhere or which might not be available in this country and for which it might therefore prove easier to travel. However, you also mentioned emergency procedures. How will the regulations impact on such care in Spain or anywhere else, as Bob Doris described it, outwith Scotland? Do the current arrangements not apply? If, say, someone goes to Benidorm and has a stroke, what happens now and what will happen after this legislation comes into force?

That person will use their European health insurance card.

So the regulations do not change that.

No. The cross-border stuff relates to planned treatment.

But the cabinet secretary mentioned emergency treatment.

That is where your EHIC comes in.

So the regulations affect only planned treatment, not emergency treatment.

If someone who was not from Scotland was involved in a road traffic accident in Scotland, we would treat them right away and then sort out the finances. I do not want to give the impression that the first thing we would do is ask for their credit card.

But we are expected to take out insurance when travelling outside Scotland.

That is right.

In fact, there is a problem with people not taking out insurance. How would they be affected? What about the add-on costs?

If you go abroad without insurance and you need emergency treatment, you are liable for the cost of that treatment.

So, just to have some fun at Richard Lyle’s expense, does that mean that I will need to get holiday insurance to go to England and Wales in future?

It will depend on the arrangements, but—

I do not want to turn this into a comedy, but I thought that the question was worth asking.

I would take insurance out anyway, convener.

We will accept that, cabinet secretary.

We had a family accident when we were abroad two years ago. There was a head injury, but we just presented our card and it was all taken care of. If you carry your card, you will be fine.

I am glad that you had that experience, Gil, but there are regular reports that it is not as simple as that for people. I was just seeking clarification that the regulations cover mainly planned treatment.

Absolutely.

Do members have any other questions?

Convener, my EHIC expires on 8 August 2015. I have never taken out insurance for going to Europe—I have just taken my card with me.

Well, Richard, you heard the cabinet secretary’s advice. He is a friend of yours.

I always take the cabinet secretary’s advice.

You should get insurance even if you are just going to England and Wales. Anyway, we must press on.

We now move to the formal debate on the regulations on which we have just taken evidence. I invite the cabinet secretary to move motion S4M-07760.

Motion moved,

That the Health and Sport Committee recommends that the National Health Service (Cross-Border Health Care) (Scotland) Regulations 2013 [draft] be approved.—[Alex Neil.]

Do members have anything to say? Richard, this is the debate, not the question-and-answer session.

The debate is on whether the regulations should be passed, and I believe that this is one of the most exciting pieces of legislation in the two and a half years I have been at the Parliament. It makes it clear that people can go abroad; supports freedom of movement and patient choice; and provides every EU citizen with better information on their rights. It is an excellent piece of legislation, and I support it.

I just heard my colleague get excited about subordinate legislation. I think that he needs to see the doctor. [Laughter.]

I am not sure how you follow that, convener—and the answer is that you probably should not.

The debate provides an opportunity to raise a wider issue about Scottish or UK citizens visiting other European countries without their EHIC and the internal procedures in certain countries. In some countries, if you do not show your card at the point of accessing accident and emergency or hospital care, you are quite often expected to pay up front. Although the Scottish NHS has accounting procedures by which it can reimburse those costs, things can be made quite difficult not by the Scottish NHS but by the internal accounting procedures of other European Union countries. I am not sure that I would deem the regulations exciting, but I certainly think that they are important and that there is still work to be done at European rather than Scottish level to ensure that the accounting procedures under which Scottish citizens are reimbursed for healthcare received elsewhere in the European economic area are expedited. I know from constituency cases that it can take a number of years for people to be reimbursed. Given the context of the debate, I thought it appropriate to put that on the record.

As no one else wishes to take part in the debate, I invite the cabinet secretary to sum up.

I am happy to take the debate as read. This is something that we have to do under European legislation and, as committee members have made clear, it will benefit both our citizens and the citizens of Europe.

Motion agreed to,

That the Health and Sport Committee recommends that the National Health Service (Cross-Border Health Care) (Scotland) Regulations 2013 [draft] be approved.

I briefly suspend the meeting for a changeover of officials.

11:27 Meeting suspended.

11:29 On resuming—