Is an NHS monopoly going to be legal much longer in European Law?

The National Health Service is sixty years old this year. It is a kind of national totem, worship of which for some has become a religious substitute. This is in part because the NHS has saved so many lives--it is, as an organisation, literally a saviour-- and because it has so melded the interests of the working and middle classes in free healthcare in Britain that it is one of the very few if not the only classless institutions in a class-obsessed country.

However, there has long been a question in European law about a state-funded monopoly which effectively prevents private hospitals from offering a non-subsidised choice to consumers. The sometimes insane logic of consumerism, which drives a good deal of european competition law, has been held in abeyance. This is because the commissioners seemed in the past to grasp the nuclear scale of any assault on the NHS on what remains of European sympathies in the UK.

Now, following a 2006 case involving Bedford Health care trust, the Euro-bomb has started ticking.

As a first step, the European Commission has proposed that citizens in any EU state be allowed to obtain healthcare in any other, with the treatment being paid for by the British government at NHS rates. Since NHS rates are lower than other systems, an obvious conclusion arises. This system, to work, would have to effectively allow 'top up' health tourism. People who were ill and on a waiting list will be able to go to another country--if the proposal succeeds--and, by part-paying, obtain treatment.

This may already happen you say; but in two crucial ways it does not. Firstly, under Alan Milburn and Tony Blair, the NHS did begin to send people abroad for operations--but at government and health trust direction, not upon their election. The British authorities are highly averse to individual choice when it comes to people going abroad for treatment, and can be expected to be hostile to any proposal that allows individuals to choose. The situations which can be envisaged are obviously different from those which prevail already under the E112 scheme, where emergency treatment or treatment which cannot be delayed can be obtained anywhere, if you have a European health card, because these are situations where people cannot choose.

Secondly, within Britain, the English and Welsh Health Secretary has recently suggested reviewing the policy of withdrawing all treatment from anyone who attempts to 'top up' by paying for more expensive drugs or faster service. However, he has attempted to bury the issue until October because, as he originally noted, most of the NHS's political supporters dislike the idea of 'co-payment', which is normal in other systems. The European proposal would institutionalise it.

The European proposal, in a nutshell, allows these two things. It therefore offers people with money (not necessarily middle class) and insurance the legal right to go abroad, get treatment, and pay the difference from the NHS. The UK political classes have not yet woken up to the proposal, which I emphasise is not a law, but when they do we can expect great controversy from it. The medical establishment is predictably suggesting that the NHS just refuse to fund anyone who wants to go abroad; but this, as far as I can see, misses the point that this would be a matter of EC law, and British institutions could not disobey without putting themselves in direct defiance of the future directive.

It would be interesting to see if the proposal, when fleshed out, allowed a legal claim by a person denied treatment by one primary health care trust to sue for treatment by another, under EC law. The language of the proposal is unclear on this point, and the opinion of the judges way above my level of experience to predict. In the future, could it mean elderly patients crossing the Scots-English border, or the Northern Ireland border for example? I do not pretend to any level of expertise, but I am intrigued by the possibilities.

Could NHS reform now become part of the European project--and how will this add to splits within and between all three main parties over one of England's last remaining popular institutions? How long before the private healthcare lobby in Britain uses this new proposal to begin planning how to assault the NHS monopoly further?