ECJ ruling clarifies cross-border medical
treatment
The European Court of Justice has recently ruled that urgent
medical decisions made while a patient is in another EU country do
not have to be approved by the national health authorities in the
patient’s country of residence. Simon Taylor, head of Alexander
Harris’s International Travel Litigation Team, talks to Greg
Bousfield about the possible implications of the decision...
The
ECJ’s latest ruling on cross-border medical cost reimbursement
confirms that urgent medical decisions in the patient’s country of
stay do not have to be approved by the national health authorities
of the patient’s country of residence.
“I don’t think the UK social security system has anything to fear
from this judgement; because it arises from emergency circumstances
there is no chance of abuse by patients who might premeditate
seeking off-shore treatment, ” says Simon Taylor, head of Alexander
Harris’s International Travel Litigation Team.
The case -Heirs of Annette Keller v Instituto Nacional de la
Seguridad Social (INSS) et al, C-145/03 - concerned Annette
Keller, a German national resident in Spain who obtained a E111 form
from the Spanish health service (Insalud) to cover any emergency
medical treatment arising from a one-month trip to Germany. While
she was in Germany, she became sick and was diagnosed with a
life-threatening brain tumour. She asked Insalud to issue a form
E112 so as to be able to continue receiving treatment in Germany
(form E 112 authorises an insured person to go to another Member
State in order to receive appropriate medical treatment). The
validity of that form was extended several times.
Her doctor in Germany decided to transfer her to the Zurich
University Clinic (Switzerland) because he felt that was the only
place the she could be operated on with any chance of success. After
the treatment, Insalud refused to reimburse Keller for costs
incurred at the Zurich clinic saying she should have first sought
permission. A Spanish court referred her subsequent claim against
Insalud to the ECJ with a query on reimbursement based on EU
Regulation 1408/71, which deals with the application of social
security schemes to workers employed in other member states.
The ECJ said firstly, that one of the objectives of the 1971
regulation is to facilitate the free movement of insured EU citizens
who need or who have been authorised to have treatment during a stay
in another member state. Secondly, that the doctors in the member
state of stay are best-placed to assess the treatment needed by the
patient, the resident member state institutions having placed
confidence in those doctors for the validity of the E111/E112 forms.
This assessment can include transferring the patient to another
member – or non-member – state, the court said. Further, the
patient’s national health authorities cannot force the patient to
have a medical examination or subject medical findings and decisions
to its approval.
“The judgement very much arises from unusual emergency
circumstances,” Taylor comments. “The ECJ is making medical
considerations paramount, and we would always support that
principle.”
In less drastic situations, patients generally have emergency
treatment and then are likely to be required to return to their
country of residence - that is, they would not have an E112 approved
or extended where treatment is available at home. “We have always
found that treatment for UK nationals is reimbursed by the UK
authorities under E111. At the earliest possible time, as soon as
the person is stabilised, they can be repatriated to the UK and
treatment continued there.”
“I am not aware of any similar claim to the Keller case
arising in the UK and that may be because the NHS and the UK paying
bodies takes a different approach than the Spanish health
authorities,” he says. “But now that the matter has come up in this
case, it is a settled point as far as we are concerned.”
(05/05/05)
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Case annotations in other services:-
Heirs of Annette Keller v Instituto Nacional de la Seguridad Social
(INSS) et al, C-145/03 [2005] All ER (D) 92 (Apr)
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