Six years ago, Elias Mossialos, Rita Baeten and I were asked by the Belgian government to prepare a book on the consequences of European law for health services, as part of their preparations for their EU presidency. At that time many governments remained in a state of denial on this issue. They had signed the Maastricht Treaty, which made clear that health services were a matter for member states and not the EU. Yet they forgot that all those things that a health care system needs to function, from drugs to medical technology to health professionals, were subject to EU law. For example, for over 30 years, health professionals had enjoyed the right to move freely within the EU. Patients could also receive treatment abroad, should they become unexpectedly ill, safe in the knowledge that their health care payer at home would cover the bill. It was also possible for patients to go abroad to get treatment for an existing disease but their insurer had to give permission in advance, or so it was thought. Anyway, these things were at the margin. Very few health professionals did move from one country to another, save for a few traditional flows, many of which long predated the EU, such as Irish doctors moving to England. The number of people falling ill abroad was small and anyway most claimed on their travel insurance. It was hardly surprising that no-one seemed too fussed.
Of course, in 1998 it all changed. Two citizens of Luxembourg travelled abroad, in one case to obtain spectacles from Belgium, in the other to get orthodontic treatment for his daughter in Germany. When they returned, they presented their bills to their insurer, who refused to pay. A long time later, it was forced to by the European Court of Justice.
These rulings sent shockwaves through the corridors of health ministries. Spectacles and dental treatment were not a problem, but where was this leading to? Yet in many capitals, the shockwaves rapidly subsided. Ministries reassured themselves that the Court’s rulings did not apply to national health services, or to hospitals, or indeed beyond the precise circumstances of the cases. In contrast, a growing number of people, often with remarkably unusual conditions, spread out across Europe seeking to test the limits of the new legal situation. Progressively, the right to obtain care abroad was expanded, and it became clear that many of the safeguards that governments thought they had in place were not as safe as they thought.
At the same time, a few governments were waking up to the implications of what had, until then, been a rather obscure legal instrument, the Working Time Directive. This limited the hours that people could work each week, but it was widely believed that it did not apply to medical staff who were on call but not actually working. Once again, they were wrong. The consequences are profound and even now poorly understood by many people responsible for the delivery of health care. Small hospitals, with a few medical staff on a rotation, became unviable. The established system of medical training needed radical revision.
Back then, we actually exceeded our brief for the Belgian government, producing one authored and one edited book. We now realise just how important the two books were. While I am still not convinced that many people, except for the small group of Euro-policy wonks, actually read them from cover to cover, the fact that it was possible to write two entire books on a subject that many people had previously regarded as a non-issue did seem to make an impression.
Yet six years is a long time (in fact the books appeared in 2002) and a trickle of health-related cases before the European Court has turned into, if not a torrent, at least a respectable stream. Consequently, again with support from the Belgian government, a new book is on the way. This time it is edited by Elias and Rita, along with Tamara Hervey and Govin Permanend. My role is limited to co-authoring two chapters (although today I seem to have acquired a third!).
Today we (the editors, authors, and a few policy experts whose job is to make sure we are grounded in reality) were in Brussels to discuss our draft chapters. Readers will be familiar with the concept of authors’ workshops, which we use with all the Euroepan Observatory books.
So what has changed in six years? The law of course. The European Court has ruled on a substantial number of cases hat have variously clarified or obscured the situation. However, it is beyond doubt that the legal situation is now very different.
Awareness of its importance has also changed. Now, no-one who is at all informed maintains that EU law is irrelevant to health care (but see later). In the intervening years, governments have established a high level reflection group to explore the nature of its implications. An attempt to treat health care like any other service, in a general directive on services, was roundly defeated. Yet while there is now an acceptance that health care is special, it has been extremely difficult to square the circle of delivering socially inclusive, evidence-based care, in an internal market.
Another change is the number of academics working in this field. Six years ago, there were only a handful. Now there are well-established teams of legal researchers specialising in EU health law in a number of universities, mostly in Belgium and The Netherlands, but also in, for example, Sheffield, directed by Tamara Hervey.
Yet some thinks have not changed. Surprisingly frequently, questions were raised about the conformity with EU law of developments in one country, England. There, a bewildering array of quasi-market mechanisms have been established, often shrouded in substantial legal uncertainty. From the time they were introduced, ministers have maintained that contracts between NHS purchasers and providers are contracts, but not ones that are legally enforceable. Outside the parallel universe in which many of their advisors inhabit, this is not a concept that is widely recognised. Furthermore, as new structures, such as Foundation Trusts, are created, the legal situation becomes ever less clear. Now this situation offers endless scope for debate on issues such as what is an undertaking or what is a service of general interest. And of course, nothing is more engaging for lawyers than endless debate (academic lawyers excepted of course!). Consequently, one question that came up several times was why none of the private health care providers active in England had challenged decisions under EU law. The only plausible solution was that, despite all its flaws, the pickings were so rich that no-one wanted to rock the boat. Whether this will continue if the flow of money slows remains to be seen.