Directive on Patients‘ Rights in Cross-Border Healthcare

The Directive “on the Application of Patients’ Rights in Cross-Border Healthcare”, 2011/24/EU, regulates the access of EU citizens to healthcare outside their home Member State. Therefore, it is a Directive mainly oriented towards the patients. However, the Directive also affects hospitals, health insurances, medicinal personnel in the European Union’s Member States.

Background Information

In 2008, the European Commission adopted its proposal for the Directive. The European Parliament and the Council processed the proposal under the ordinary legislative procedure. The Directive was formally adopted on 19 January 2011 and was published in the European Official Journal on 9 March 2011. Important to mention is that the management, organization, delivery and financing of the healthcare remains the duty of the EU Member States (art. 168 TFEU) and the European Union has no competences in restructuring national health care systems. The Directive does not have such aims. It is thought to facilitate the access to cross-border healthcare and to clarify legal issues connected to that. Furthermore, the Directive should make the market of health services more transparent and more competitive.

Content of the Directive

The Directive regulates the patients’ rights, the modalities and the financing of receiving health treatment abroad. A cross-border health service is given, if the person receiving the treatment is outside of his or her home Member State or the service is delivered across borders within the European Union (telemedicine, remote diagnosis). Moreover, the health service is also considered as “cross-border” if it is executed by medicinal professionals who work temporarily or permanently outside their Member State of residence. The Directive sets out regulations for:

• The reimbursement of the treatment costs
  • The insured person can receive all treatments abroad to which he or she is entitled in his or her home Member State. The insurance companies have to reimburse the costs of the treatment abroad to the usual costs in the home Member State (art. 6 (1), (2) of the Directive).
  • The insured persons do not need a prior authorization by the health insurances in the case of ambulatory treatments (art. 7).
  • However, the Member States can still decide which kind of services will be reimbursed (art. 6 (1)).

• Authorizations for treatments abroad
  • However, there are two exceptions to the general rule of not needing a prior authorization. Therefore, a prior authorization for the treatment abroad is needed if
    • the treatment requires a one or more night stay at the hospital, or
    • the treatment is highly cost intensive and specialized.
  • There is the right to refuse such a prior authorizations but only on justified grounds (art. 8 (1) – (4)). Patients have the right to challenge the decision in front of a court (art. 9).

• Recognition of Prescriptions
  • Prescriptions should be accepted EU-wide, if they were issued by a doctor from an EU Member State. The Commission drafts a form for a prescription which should be accepted EU-wide while impeding counterfeiting (art. 14).

• Challenges for national health systems
  • The Member States have to guarantee clear standards for quality and safety in their national health systems. Moreover, prices and availability of medication should be made transparent to the patients.
  • The general information of the patients should be improved. Therefore, the personnel of health insurances and hospitals as well as doctors should be trained in issues connected to cross-border healthcare, so that they can provide adequate information.
  • The Member States are obliged to create national points of contact (art. 10, 12), which inform the patients about their entitlement to services and to claim damages.
  • The patients have the right to claim for compensation in the Member States where they received the treatment (art. 5 (1)).

• The set-up of “European Reference Networks”

Moreover, the European Commission wants to establish “European Reference Networks” between hospitals and different health service providers. These networks should ensure cross-border cooperation in highly specialized fields and should lower the costs for treatments.

The approach of the Directive was backed by several judgments of the European Court of Justice. The Court set out that the patient has the right to access health care abroad when the own health insurance pays. However, the healthcare could be denied, if foreign health care insurances would have to bear the costs.

The Directive is in force since 24. April 2011 and Member States need to implement the Directive until 25 October 2013.