The Proposed Patient Mobility Directive and the Reform of Cross-Border Healthcare in the EU

This paper provides a discussion of the Commission's July 2008 proposal for a Directive on the application of patients' rights in cross-border healthcare (the proposed patient mobility Directive). It does so against the background of an overview of the preceding patient mobility case law of the European Court of Justice that is based on the freedom to provide services of Article 49 EC, from Kohll and Decker in 1998 to Watts in 2006. The findings are that the proposed patient mobility Directive is not a full codification of the case law as it leaves out certain guarantees developed by the Court, while it adds some new elements of harmonisation. The Court had in principle accepted public interest justifications for prior authorisation requirements with respect to hospital treatment and focused on developing substantive and procedural guarantees of patients' rights such as the criteria for "undue delay", in which case authorization for treatment abroad must be granted. The Commission takes a different approach, by both requiring Member States to actually demonstrate the need for a prior authorization regime and at the same time itself providing evidence that this is in most cases unlikely to be warranted. Because the criteria for "undue delay" would no longer be used to determine when authorizations must be granted there will be no clear EU standard to apply if any authorisation requirements survive. The main innovation of the proposal are new patients' rights to accountability and transparency which apply not just to mobile patients but to all patients in each Member State. This represents a first step from negative integration (liberalisation) to positive integration (harmonisation). Moreover transparency and accountability will generate pressure for further change, not just in relation to the cross-border provision of services, but more broadly across the healthcare sector.