Commissioning Policy

Patients Seeking NHS Funded Hospital Treatment in the European Union, European Economic Area or Switzerland

1.Definitions

NHS commissioned care is healthcare which the patient’s responsible Primary Care Trust has agreed to fund. The Primary Care Trust has policies which define the elements of healthcare which the PCT is and is not prepared to commission, and individual funding request processes to consider commissioning care for individual patients outside those policies.

Responsible Primary Care Trust means the Primary Care Trust which discharges the Secretary of State's functions under the National Health Service Act 2006 for an individual patient.

EU means the European Union. The EU is narrower that the European Economic Area (‘EEA’) which also includes three European countries that are not in the EU ie: Iceland,Norway and Liechtenstein. Switzerland is not in the EEA but is linked to the EU by Swiss-EU bilateral agreements. The terms “Europe” and “European” are used in this policy to refer to EU and EEA countries and (except where stated otherwise) Switzerland.

Host Country means the European country in which the patient is seeking, and ultimately receives, the healthcare for which they are requesting funding.

Country of Origin means the country in which the patient is ordinarily resident.

Undue delay means a delay in providing treatment which, given the individual clinical circumstances of the patient and the period that the patient could reasonably be expected to wait before receiving the requested treatment, cannot be objectively justified.

EHIC, the European Health Insurance Card, allows temporary access to emergency state healthcare for patients in all EEA countries and Switzerland at a reduced rate or, sometimes, free of charge. The EHIC covers most emergency medical treatment that becomes necessary during an individual’s visit to Europe, because of either illness or accident.

S2 (formerly an E112) is an authorisation issued by the Department of Health, in response to an application by a UK resident patient to obtain prior authorisation to obtain treatment in a state-funded healthcare setting within the European Union / European Economic Area / Switzerland. If a recommendation is approved by the responsible Primary Care Trust and an S2 consequently issued by the Department of Health, treatment is provided under the same conditions of care and payment as a resident of the host country and the NHS pays the full cost of treatment (if free to the patient in the host country) or the amount reimbursed by the state system (if treatment is not free to the patient), even if those costs are greater than in the UK. Where applicable, the patient makes a co-payment equivalent to that paid by a member of the host country receiving healthcare under that country’s state system. Where co-payments are charged, the NHS is also liable to pay any difference between costs reimbursed in the host country and the costs of treatment in the NHS (where higher).

Article 49of the former Treaty Establishing the European Community (‘TEEC’) provided for a free market in services in the EU.TEEC was renamed the Treaty on the Functioning of the European Union (‘TFEU’) by the Treaty of Lisbon.

Article 56 of the TFEU is the current treaty provision establishing a free market in services in the EU. Under Article 56, UK residents who are entitled to NHS services can seek treatment in the private or state sector in Europe (but not Switzerland) and claim reimbursement of the costs of that treatment from the NHS. Case law deriving from Article 56 has been the springboard for the development of a European Directive on the application of patients’ rights in cross-border healthcare. Once implemented by UK legislation, its provisions will clarify the entitlements of patients seeking healthcare provision outside of their home country.

Section 6A and Section 6B of the National Health Service Act 2006, are 2010 amendments made by the National Health Service (Reimbursement of the Cost of EEA Treatment) Regulations 2010, and make provision for the reimbursement of the cost of a healthcare service where a patient chooses to obtain that treatment in another EEA state under the provisions of Article 56. The 2010 regulations give effect to judgments of the European Court of Justice in this area.

This policy outlines the circumstances in which patients can request NHS funding from their PCT to support them in seeking planned treatment in Europe or seek reimbursement once such treatment has been received. Patients travelling to Europe on holiday, for example, should be directed to guidance available under the EHIC mechanism for unplanned healthcare treatment, available from the Department of Health “Health Advice for Travellers” section. This policy focuses on patients seeking treatment within Europe for planned healthcare services.

This policy only relates to treatment in the countries listed in Appendix 1. EU legislation and allied agreements do not give patients any right to be reimbursed for the cost of treatment received in countries not on this list.

The NHS in England is currently undergoing a period of transition, and Primary Care Trusts (PCTs) and Primary Care Trust Clusters are handing over their commissioning responsibilities to Clinical Commissioning Groups (CCGs). The organisation responsible for commissioning healthcare for an individual patient (the ‘responsible commissioner’) may therefore change from the responsible Primary Care Trust to the relevant CCG. Similarly, Specialised Services, previously handled by Specialised Commissioning Groups (SCGs), will become the responsibility of the National Commissioning Board and its regional and local footprints.

2. The policy

  1. This policy applies to any patient for whom the PCT is the Responsible Commissioner.
    There are 3 ways in which a patient can be treated within Europe, wholly or partly at the expense of the NHS:
    By the PCT commissioning treatment directly from a hospital or other healthcare providerlocated in Europe;
  2. Through the S2 system;
  3. By the patient exercising rights under Article 56 of the TFEU[1]

2.2.Patients are entitled to seek to exercise their rights to have NHS funded treatment in Europe only where that treatment is clinically necessary and the PCT is prepared to commission the treatment as part of routinely commissioned NHS healthcare or following the approval of an Individual Funding Request.

2.3.The PCT is prepared to consider the routine commissioning of a treatment from a European-based hospital provided there is a business case for the commissioning activity and the PCT can be satisfied about quality, access and the overall cost of providing treatment to NHS patients at a European-based hospital.

2.4.Authorisation for funding for State sector treatment through the S2 scheme will be recommendedby the PCT where:

  1. the patient has been recommended for clinically necessary treatment by their GP or another duly authorised NHS clinician, and
  2. the PCT is satisfied that the treatment is not experimental nor a drug trial, and
  3. the patient has been informed by the PCT that the PCT is prepared to commission the treatment for the patient, and
  4. the patient has suffered undue delay before the treatment is able to be provided (ie: treatment has not been able to be provided within a time that is medically acceptable, based upon clinical assessment), and
  5. the PCT has confirmed that the treatment sought is available under the treating country’s state health scheme and has assured itself that the cost of sending the patient abroad for treatment is a cost-effective use of its budget, and
  6. the patient has provided their consent for referral and treatment, having undertaken a sufficient consideration of the healthcare service being offered.[2]

2.5.
Where condition 2.5(iv) is not satisfied, the PCT will exercise its discretion as to whether to recommend the patient for S2 authorisation

  1. Where the patient applies for S2 authorisation, the PCT will forward the application to the Department of Health for a decision on whether the NHS will support the application. Where S2 authorisation is granted, the PCT will either:
    meet the full cost of treatment, if free to patients in the host country, or:
    pay the amount reimbursed by the host country’s State system, if treatment is not free to resident patients, even if these costs are greater than in the UK.

Where co-payments are charged to patients in the host country, the NHS will pay any difference between costs reimbursed in the host country and the cost of treatment in the NHS (where higher).

2.6.Patients may also seek to exercise their right to obtain treatment funded by the NHS in Europe (other than in Switzerland) under Article 56. This is also the only route available where the patient seeks treatment in the private sector. The patient pays for the treatment locally and then seeks reimbursement from the PCT. The PCT will limit the sum reimbursed to the cost (in the case of dental treatment, the average cost) the PCT would have incurred in making the same or an equivalent treatment available but will refund the actual cost of treatment, if lower. The PCT may also deduct from the reimbursement any co-payment the patient would have been liable to pay, had the treatment been commissioned by the PCT.

2.7.The PCT will only reimburse the patient for any expenditure incurred in the pursuit of realising Article 56 rights where that constitutes “qualifying expenditure” in accordance with section 6A National Health Service Act 2006. ie: where either

  1. the treatment is

2.7.i.1.necessary to treat or diagnose the patient’s medical condition,

2.7.i.2.the same as or equivalent to a treatment the PCT would appropriately commission for the patient in the patient’s clinical circumstances; and

2.7.i.3.not a ‘special service’[3] as defined in section 6A National Health Service Act 2006;

or

  1. before the treatment was provided, the PCT had authorised provision to the patient in accordance with section 6B National Health Service Act 2006.

2.8.The PCT requires the patient to apply for such prior authorisation where either the treatment sought constitutes a ‘special service’ (see footnote 3) or is treatment which is neither the same as nor equivalent to the treatment the PCT would appropriately commission for the patient in the patient’s clinical circumstances.

2.9.The PCT will provide prior authorisation where the treatment requested constitutes a ‘special service’ and:

  1. the treatment is necessary to treat or diagnose the patient’s medical condition, and
  2. the treatment sought is the same as or equivalent to the treatment the PCT would appropriately commission for the patient in the patient’s clinical circumstances, and
  3. the PCT cannot provide that identical or equivalent treatment without undue delay, taking into account the patient’s state of health at the time the decision is made and the probable course of the patient’s condition.

In all other cases the PCT will give due consideration to the request for prior authorisation but is not bound to grant it.

2.10.
Article 56 may not be used to secure support for people in need of assistance in carrying out routine, everyday tasks. Specifically, it does not apply to attempts to secure long-term care services provided by home care services, in assisted living facilities and in residential homes or housing (‘nursing homes’) abroad. Travel to Europe for the purposes of securing organ transplants also falls outside the scope of Article 56.

2.11.Where an application is made to the PCT under either S2 or Article 56, this should be supported by a clinical report from the referring specialist, setting out the case for the patient’s need to travel to Europe and, in cases of ‘undue delay’, explaining why the patient is facing an unacceptably long wait for treatment in England and why the consultant considers that that delay would be medically unacceptable.
If the PCT is satisfied that the conditions for prior authorisation, set out in section 6A and 6B National Health Service Act 2006, have been met, it will write to the patient, setting out the exact terms of the proposed authorisation and related arrangements. This is for the benefit of both parties and enables the patient to be certain of the financial and clinical care arrangements that will apply. This letter will ensure that the patient is aware that, under the Article 56 route, the responsibility for ensuring the quality of the care that the patient receives is that of the health system in the host country. It is important that patients understand that the PCT cannot assure the quality of providers that the UK neither oversees nor regulates and that no duty of care attaches to the authorisation. The letter will also set out what care arrangements the patient can expect when they return to the UK.

2.12.Patients are only entitled to receive payment towards travel costs if, had they been treated in the UK, they would have been entitled to support under the Healthcare Travel Costs Scheme. The patient should use the most efficient mode of transport to the destination of treatment.

2.13.
Neither S2 nor Article 56 authorisations will make the PCT liable for the clinical negligence of practitioners or clinicians in the host country. Any liability of the provider would have to be established in accordance with the legislation of the host state. The NHS does not accept any legal liability for the quality of providers outside the UK, on the basis that the choice of provider is for the patient and the UK neither oversees nor regulates such providers. Patients must make their own inquiries about the level of insurance held by the proposed providers and the level of any liability within the country where the treatment is to be provided. Patients treated abroad will have no recourse to the NHS liability insurance scheme administered by the National Health Service Litigation Authority.
The PCT is entitled to refuse to pay for healthcare services that are available in other European states but that the PCT does not offer to patients in the UK. The PCT is also entitled to refuse a request for treatment that it does not fund, even if that treatment is funded elsewhere in the UK by another PCT.

2.14.
There may be exceptional circumstances where the PCT may agree to fund treatment in another European country in a case which falls outside of the criteria set out above. Such applications should be made to the PCT’s Individual Funding Request (‘IFR’) panel, setting out the exceptional circumstances in the case. Any such IFR request will be considered alongside other similar exceptional requests made of the PCTs resources for the provision of care within the NHS or any other UK provider.

2.15.If the PCT refuses a request for a patient to seek treatment abroad, that patient has the right to make a complaint to the PCT using the NHS Complaints System.

2.16.The PCT, as responsible commissioner, will provide information to patients on the pathways available to them, and the processes required if they wish to seek planned treatment in Europe.

3. Documents which have informed this policy

  • West Midlands Strategic Commissioning Group, Commissioning Policy 1: Ethical Framework to underpin priority setting and resource allocation within collaborative commissioning arrangements
  • Department of Health, The National Health Service Act 2006, The National Health Service (Wales) Act 2006 and The National Health Service (Consequential Provisions) Act 2006. http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Actsandbills/DH_064103
  • Department of Health, World Class Commissioning Competencies, December 2007 http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_080958
  • Department of Health, The NHS Constitution for England, March 2012,http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_132958.pdf
  • The National Prescribing Centre, Supporting rational local decision-making about medicines (and treatments), February 2009,
  • NHS Confederation Priority Setting Series, 2008, http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Actsandbills/DH_064103
  • NHS Confederation The EU Directive on Cross Border Healthcare: For Commissioners. 2011.
  • Official Journal of the European Union. Directive 2011/24/EU of the European Parliament and of the Council. 9 March 2011. (88) 45-65
  • NHS Choices. Can I choose to go abroad for treatment on the NHS?
  • Patient mobility: advice to local healthcare commissioners on handling requests for hospital care in other European countries following the ECJ’s judgment in the Watts case. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_073850

Appendix

List of the countries where patients can request to be treated under this policy.

  1. Austria
  2. Belgium
  3. Bulgaria
  4. Cyprus
  5. CzechRepublic
  6. Denmark
  7. Estonia
  8. Finland
  9. France
  10. Germany
  11. Greece
  12. Hungary
  13. Iceland
  14. Ireland
  15. Italy
  16. Latvia
  17. Liechtenstein
  18. Lithuania
  19. Luxembourg
  20. Malta
  21. Netherlands
  22. Norway
  23. Poland
  24. Portugal
  25. Romania
  26. Slovakia
  27. Slovenia
  28. Spain
  29. Sweden
  30. Switzerland

1

[1]The Article 56 route does not apply to treatment in Switzerland.

[2]Information on healthcare provided outside of the NHS is of variable quality and can be limited. The patient retains a responsibility to satisfy themselves as to the likely quality and outcomes of the healthcare they are seeking including, but not limited to, the benefits and risks of the procedure, and the assurance processes for the healthcare provider and system being proposed.

[3] A ‘special service’ is a service involving a stay in hospital accommodation for at least one night, medical treatment involving general or epidural anaesthesia or intravenous sedation, dental treatment involving general anaesthesia or intravenous sedation, or a service whose provision involves the use of specialised or costly medical infrastructure or equipment.