Katerina Pampouki, Final Year Law Student at the London School of Economics and Political Science (LSE)
The healthcare sector is incredibly complex in itself and often incites emotive responses, especially so because of its public significance. The difficulties of dealing with such complexity are exacerbated with the addition of the European dimension. However, there are important reasons to continue striving for European integration in healthcare, despite the challenges it may present. This article aims to highlight that the effects of the right to healthcare in practical terms are positive for patients and national healthcare systems. The usual focus in this area has been on criticizing the impact of cross-border healthcare on national health systems. This article rebuts such arguments, before evaluating cross-border healthcare against another benchmark: its constitutional integrity and procedural legitimacy. While constitutional concerns may not arise in respect to every case, since moral or social dimensions have been properly accommodated in some cases, they are nevertheless significant. In fact, they trigger a wider discussion about how, erroneously, the democratic content of European integration is often neglected in favour of the overall liberalization and output of the EU.
A Valuable Asset for Patients
It is undeniable that the right to cross-border healthcare is a valuable asset for patients. Quite literally, it can save lives. For contextual reasons, it is important to note that the right to cross-border healthcare in the EU system derives from Kohll & Decker, where the Court of Justice of the European Union (the Court) clarified that patients have the right to cross-border healthcare and of reimbursement by their home Member State. The direct, practical impact this decision has on patients should not be understated. Vaan Leeuwen’s empirical research and analysis on the matter demonstrates that in most cases cross-border healthcare is decisive to save patients’ lives. Both Elchinov and Petru cases support this proposition, clearly illustrating the significance of the opportunities offered through Article 56 TFEU and the relevant case law.
A Valuable Asset for National Healthcare Systems
In addition, cross-border healthcare also has a positive impact on national healthcare systems. It is often argued that cross-border healthcare undermines national social security systems because the requirement of reimbursement undermines national solidarity within the Member States. Such an argument derives from fears that financial resources will be used on other Member State healthcare systems, and in turn, will undermine the quality of national healthcare and detrimentally affect non-moving patients who are socio-economically disadvantaged. Therefore, cross-border healthcare is seen as a right that is only beneficial to some, not all members of society. However, this critique is based upon shaky foundations, primarily because it lacks empirical evidence. In reality, the right to cross-border healthcare can benefit national healthcare systems in various ways.
First of all, the patient seeking reimbursement should be seen as representing a broader claim against the scope or level of national healthcare. This therefore promotes the collective interests of society and is not confined to the individual’s benefit. In this sense, national social security is reinforced and improved. The Watts case is an example of this. The Court qualified the right to healthcare by holding that where the treatment can be provided at the home Member State “without undue delay” (para.63) reimbursement will not take place. The judgment led to the UK’s National Healthcare System to send patients in need of knee operations proactively to France, where such procedures could be done in a speedier manner. Ultimately, this not only exemplifies the positive impact of cross-border healthcare on national healthcare systems, but also shows that the central benchmark against which the “success” of a national healthcare system should be judged is whether patients are treated adequately.
Furthermore, the exercise of this cross-border right also has the—often neglected—potential of triggering a discussion between medical professionals about treatments. Such dialogue can prove fruitful and internationalize medical opinion. Even if indirectly, this also leads to the improvement of national healthcare systems. Thus, on a closer look, the usual argument against cross-border healthcare is not as strong as it may initially seem.
As the section above aimed to show, the benefits that can be gained through the right to cross-border healthcare are several. Yet, a deeper issue is at play: the constitutional implications of cross-border healthcare. These implications place the benefits conferred through cross-border healthcare in an endangered position, unravelling the everlasting debate around free movement: where to place the limits of the internal market.
In the area of healthcare, Member States lose—at least partially—their sovereignty, as the EU largely determines access to healthcare and reimbursement. On the face of it, this does not seem to be necessarily problematic. However, it becomes problematic when the Court, a non-political institution lacking democratic legitimacy, determines the outcome of essentially political questions. This is exactly the case when the Court deals with cases that contain moral or social factors. In such instances, a strong argument can be made that the Member State’s regulatory autonomy is undermined and replaced by the Court’s discretionary and judge-made doctrines which lead to a structural bias favouring economic over non-economic interests. As such, the question of the appropriate role of the Court and competence allocation becomes directly linked to the question of balancing social interests with economic ones. Ultimately, the problem is that the Court is not appropriately equipped to decide on healthcare issues. This is exacerbated by the fact that usually in such cases the questions involved are inherently ambiguous. The judges therefore will not easily reach a consensus and are likely to create ambiguous judgments that are not fully reliable.
An Illustration: the A Case
At this point, the A case must be considered where the Court was faced with the difficult task of balancing religious, medical and economic interests. This case is the perfect example of the Court struggling with the balance between economic and social objectives. The facts of the case concerned a boy in Latvia who needed open-heart surgery, but because of his religious beliefs, could not have the surgery with the use of a blood transfusion. Since the surgery without the transfusion was not available in Latvia, the boy wanted to travel to Poland to have his surgery. Following Geraerts-Smits, where the treatment includes hospital stays or specialized treatment, authorization must be given in order for the right to cross-border healthcare to come to life. Yet, the national health service denied granting authorization. When the Court was called upon to resolve the matter, the judges held that the refusal of the national health service was justified based on the legitimate aim of protection of the financial stability of the national healthcare system.
The A case illustrates the effects of the asymmetrical constitutional configuration in cross-border healthcare. More specifically, the judgment reveals that the role of the Court where moral and social considerations are involved should not go unquestioned. Scharpf’s famous analysis of the erroneous prioritization of market over social considerations in the context of the EU fits perfectly to the specific judgment. As noted by Advocate General Hogan in this case, secular courts such as the ECJ and the Latvian Supreme Court “cannot possibly choose in matters of this kind” but should be “prepared to protect a diversity of views in matters of conscience, religion and freedom of thought”. Indeed, health should not be viewed merely through a social expenditure or economic lens, because, arguably, it is much more than just that: it is a right to which everyone is personally entitled to. Yet, it is evident that through this judgment, the Court expresses a preference towards protecting taxpayers and national health care systems from financial burdens and a disregard towards giving effect to religious interests.
Nevertheless, striking the golden mean between such interests is a very difficult task. As De Witte observes, the distinction between ‘need’ and ‘choice’—the basis on which the judges decide whether or not the right to healthcare should be respected or not—is blurred in this case. This brings us to the key argument put forward by this piece: questions such as whether religious beliefs are classified as a “need” and the overall balancing of social, moral and economic considerations should not be answered by the Court. Such a controversial matter, featuring religious and ethical views is part of the process of self-determination of the Member States and hence, it should be left to the citizens to determine, or at least a democratically legitimate body.
The first section of this article aimed to show that the right to cross-border healthcare is not only valuable for patients, but also for national healthcare systems. The second section of this article demonstrated that such benefits lose their value if they are granted in an ad-hoc and constitutionally illegitimate manner. Therefore, the remaining question is: how can the benefits of cross-border healthcare be protected and, by extension, maintained?
As the A case demonstrates, healthcare issues may involve a balancing exercise between social and market considerations which, arguably, the Court cannot perform in a legitimate manner. In fact, such an exercise requires a political process to be legitimate, since the problem itself is political. The focus should be on political structures that are capable of representing the electorate’s values. As such, the Court’s role should be deferential, and limited to policing. This is something that has been done successfully in the past: cases such as Omega, involving moral and ethical issues, were settled through a deferential approach. In this context, a shift from the use of substantive proportionality to procedural proportionality could also be beneficial so that the Court is more respectful of the division of competences and self-determination.
A more radical proposal would be treaty reform, through which law-making would be placed on the EU level. Yet, this has problems of its own. The EU legislator’s hands are tied because of the high consensus requirements that need to be met in the EU legislative process. Indeed, this boils down to the lack of transparency and lack of citizen participation, which is a serious, if not the most serious, obstacle in the way of a holistic democratization of EU integration.
The potential hidden in cross-border healthcare is immense. However, there are many obstacles in the way of realising this potential to its fullest. This article showed that the key obstacle relates to the role that the Court has undertaken in this process. This is not only democratically illegitimate, but it also represents a wider trend of prioritizing economic over social interests. Thus, perhaps inevitably given how the developments in this area have unfolded, the future of cross-border healthcare lies in the hands of the judges. One thing is clear: cases involving social or moral considerations will continue to arise before them. Thus, seeing whether they turn to a more deferential approach or not is only a matter of time.