Among the kilometres of so-called ‘red tape’ that the UK Government wishes to free itself from by leaving the EU is Directive 2011/24/EU, which provides a way for British citizens to travel to an EU state to receive medical care and reimbursement. The Directive covers healthcare costs, as well as the prescription and delivery of medicines and medical devices. This Directive creates healthcare rights additional to those found in the Co-ordination of Social Security Regulation 883/2004, see my blog post Healthcare Arrangements after Brexit: What we are about to lose .
In the absence of any agreement or treaty between the UK and the EU, British citizens, EU citizens, and others will lose these rights after the end of the transition period. What are these rights and how may they be claimed?
The Cross-Border Healthcare Directive
Directive 2011/24/EU provides a range of benefits. Patients resident in the UK can purchase healthcare (private or state-provided) in another EU state and apply for reimbursement of the costs from the relevant UK public authority. In this way British citizens resident in the UK may access healthcare in other European countries, for instance specialised expertise. The treatment that they pay for in an EU state must be treatment that they are entitled to in the UK. The amount that the UK will reimburse for the treatment is capped at the amount it would have cost has the treatment taken place in the UK.
In the UK, patients are required to apply in advance for a number of treatments, where such treatments are linked to specialised services. Apart from that, patients are entitled to apply for reimbursement without any prior approval. The patient pays the healthcare provider directly in the EU state in question and then applies to the relevant UK public authority for reimbursement (in England they apply to NHS England). That public authority then sends the bill to the relevant NHS commissioning body. Where the request is approved, the patient is reimbursed either at the level the NHS would have incurred had it provided the treatment, or where the actual cost was lower, at that level.
In addition, the Directive does two other very useful things that benefit British citizens: (1) it provides for mutual recognition of prescriptions, and (2) it provides for European Reference Networks (ERNs) that facilitate cross-border cooperation on complex and rare diseases.
Mutual recognition of prescriptions makes it easier for ill, injured, and disabled people requiring medical care to travel. As UK residents, the disabled British citizen on a package holiday to Greece, the German banker seconded back to Frankfurt, and the self-employed Italian journalist covering a story in Rome for a UK national newspaper, can take their UK prescriptions with them and have them fulfilled in pharmacies in Greece, Germany and Italy.
As regards ERNs, they improve the diagnosis and treatment of rare or low prevalence complex diseases. They work on a wide range of conditions including bone disorders, haematological diseases, paediatric cancer, and immunodeficiency. The UK leads a number of the ERNs and participates in nearly all.
In addition, to the above benefits, the Directive creates a network of National Contact Points designed to provide patients with clear, accurate information on cross-border healthcare.
What’s the UK plan?
At the end of the Brexit transition period (31 December 2020), the Cross-Border Healthcare Directive (as EU law) will cease to apply in the UK and British citizens and others will lose all the benefits set out above. At present the UK Government implements provisions of the Directive via the National Health Service (Cross-Border Healthcare) Regulations 2013 and the National Health Service Act 2006 (in England, the other Home Nations have their own laws).
When it looked as if the UK would leave the EU without a deal, Parliament made the National Health Service (Cross-Border Healthcare and Miscellaneous Amendments etc.) (EU Exit) Regulations 2019. Now that there is a Withdrawal Agreement the 2019 Regulations did not come into force on EU Exit day (31 January 2020) but, it appears, they will come into force at the end of the transition period (31 December 2020) if there is no agreement to perpetuate the cross-border arrangements beyond that time.
As there appears to be no draft EU-UK healthcare treaty at all, or any draft bilateral treaties with individual EU states, as things stand, British citizens and other UK residents will lose these cross-border healthcare rights at the end of the transitional period. As regards the UK, the 2019 Regulations end rights under the Cross-Border Healthcare Directive (with limited provision for patients in a transitional position). While there is transitional continuation of arrangements with EU states with whom the UK has established reciprocity, there is scant evidence of such agreement. In the result, there appears to be no UK plan. As things stand these useful rights will be lost and British citizens and others will be the poorer for it.