The EU and the NHS; nearly 999?


National health care systems are at present exempted from most European Union regulations on competition. The Union's courts--The European Court of Justice and the Court of First Instance--tend to rely on various arcane formulae to avoid upsetting national governments, and to fall back on the Treaty of Rome.

So, for instance, they point to Treaty articles detailing subsidiarity, or exemptions for monopolies in the general interest or general economic interest of the people. They note that healthcare is a matter for governments under some articles, and that territorial and social solidarity allows for national policies in others.

However, it is not hard to discern that this 'kid-glove' treatment of state healthcare systems in Europe is beginning to break down. A few years ago, the Commission proposed to liberalise goods and services within the European market. Laws implementing the internal market already had priority over national rules. It was proposed, in the draft 'Bolkestein directive' that healthcare services fall under these rules, but after a ferocious backlash, they were removed.

Simultaneously, two things happened. Questions began to be asked about 'ancillary services'. Those included things like non-emergency ambulances, or hired transport in Germany, blood products moved across borders, equipment hire in Spain and so on. These were termed 'upstream' services, because they dealt with things away from the patient. Where they could have been provided by competition in insurance-based systems (which had no big NHS-style bureaucracy) the possibility that they would be was held out. Pension funds for staff also fell under the spotlight. Governments paying late and therefore requiring big suppliers with lots of buffer cash would lead, it was suggested, to the enforcement of competition rules.

At the same time, the Commission and Court of Justice turned to 'downstream' transfers of patients between systems. People were getting sick on holiday, or in systems like those of Britain, there was a clear and undue delay in getting patients treated because of waiting lists. The Court decided that rules on free movement over-rode rules on territorial and social monopolies; and, anyway, if you weren't a citizen and were using someone else's system, territorial and social solidarity didn't apply.

The centre and left welcomed this as an extension of social principle across Europe without getting the point that European norms might now be established in healthcare (though they have not yet). The Greens and the Liberals saw through it, but took differing stances. The right saw it as a vehicle for increasing 'choice', without asking who would assess an undue delay in a government bureaucracy--an doctor or an administrator handling the funds? The court will decide that point in the future. the far right presumably blamed immigrants or Jews.

This is the way a system like Europe, or for that matter the American Constitution works. Unless barred from entering an area explicitly, like a rising tide the jurists and judges will gradually do so, and it will only be when you notice the waves around your waist that you start to realise the currents beneath.

If, in the future, patients can travel around Europe looking for services; if, say, the NHS has privatised its computers and radiologists and nurses and cleaners and gone for separate contracts and pensions for different sorts of staff, what is to stop the Commission, the Court, or the Parliament applying European rules on competition? The Council members will not have a veto, because they won't be creating new fundamental law, just applying an old one with a progressive view to giving European citizens 'rights'.

So, when I discovered that John Bowis--an obscure Conservative MEP--had written an official report on cross-border healthcare, which was adopted by the European Parliament as part of a co-decision procedure, I found it very interesting indeed. A new draft directive on choice which is vague enough to get referred to the Court has already been published . Whats to stop the court deciding to deal with uncertainty and inconsistency with, say, a definitive ruling--especially since it doesn't matter whether the Lisbon Treaty is passed, and might benefit them if it does not?

A nice clear extension of rights in healthcare would be just the way to relaunch the European project. My difficulty is that, if lobbyists got the Parliament to do it, or if the Court and Commission got one past the Council, it would be relaunched right through the heart of the NHS. I think governments worth their salt ought to get busy drafting a statement on basic norms of their own, provided they want to keep their healthcare systems.

I have no money at the minute. If I had, I think I'd take a little bet that the anti-NHS crowd, and the pro-EU crowd's bizarre and pressing need for an alliance of convenience is already creating the conditions for a future march on the NHS. They are almost certainly at it already.

No conspiracy, no plot--just the system meeting with self interested parties. God help us.

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