Treatments of Low-priority and the Patient Mobility Directive 2011, an End to Legal Uncertainty for the English NHS?

Abstract

Abstract The patient mobility case law of the Court of Justice of the European Union created legal uncertainty for the healthcare systems of EU Member States. The Patient Mobility Directive setting out patients’ cross-­border rights was adopted to end this uncertainty. With the Directive to be transposed into national law by October 2013 this article discusses whether the Directive achieves this objective for the English NHS. It contrasts the legal position of the NHS patient under case law and under the Directive regarding the need for prior authorisation of cross-border treatment, the level of reimbursement and the ambit of the healthcare benefits basket. It is argued that the risk of legal challenge may persist under the Directive, specifically regarding treatments which are classified by health authorities as low priority, namely treatments which are either not ‘generally’ available or only available subject to certain clinical criteria or access thresholds.