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Health governance in Europe

The politics, policy and governance of health in the EU

Healthier in: Why being a member of the EU is good for the UK NHS

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Later today I will give a presentation at the Health Policy and Politics Network conference, ‘Policy priorities and challenges for health and social care in England’, at Manchester University. My presentation is titled ‘Healthier in: Why being a member of the European Union is good for the UK NHS’ and this post elaborates on the central points that I will address. First, however, a caveat should be made. I am not a public health professional, a student of NHS management or Britain’s relationship with the EU, or an expert on the implications of EU membership for the UK. I am a PhD candidate studying EU health policy, a former employee of the European Public Health Alliance in Brussels and a strong supporter of Britain’s membership of the EU. My position on EU membership is based in large part, simply because it is the area in which I have the most direct experience and understanding, upon the benefits that EU membership has for the health of the UK and EU populations. As such, I greatly appreciate the opportunity to present to the network of researchers at the HPPN and look forward to a fruitful discussion.

In line with the main part of my presentation, this post explores three key areas of contention between the UK NHS and the EU – the Working Time Directive, the Patients’ Rights Directive and the Transatlantic Trade and Investment Partnership (TTIP) – and the impact of the EU in each instance. It concludes by noting the outcome of the UK government’s 2014 Balance of Competences Review and discussing some causes for continued close scrutiny of and engagement with the EU’s health policy activity.

The UK NHS and the EU: The Working Time Directive

The Working Time Directive (WTD) was adopted in 2003 and, among other things, mandates that all employers operating in the EU must ensure for their employees a) a 48 hour working week, b) 11 hours rest per day and one day off per week, c) a break after no more than 6 hours work and d) 5.6 weeks of paid leave per year. In justifying its content, the Directive states that ‘The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’. The provisions of the Directive protect the health and rights of employees across Europe but, because of the unique way in which it is structured, pose particular difficulties for the UK NHS. Fundamentally, as the Department of Health’s WTD Taskforce found in 2014, this is because ‘the UK medical training system produces competent doctors who are fit to practise. However, in certain specialties this is achieved by doctors working voluntarily to gain the skills they require.’ This ‘voluntary work’, along with the extensive hours worked by doctors in the UK, is not permitted under the WTD.

The WTD has presented a number of challenges for the UK NHS but three points can be made in its defence. Firstly, the conflict arises primarily with the working practices of doctors – for the majority of NHS staff, the Directive provides valuable protections with minimal disruption. Secondly, the current junior doctors’ contract disagreement, which resulted in the first doctors’ strike in over 40 years, is rooted in discontent with the working conditions being offered to junior doctors by the UK government. On this basis, it would seem that the health and rights of doctors enjoy less, or certainly less consistent, protection from the UK government than from the EU. Finally, a word might be said in defence of the Court of Justice of the EU (CJEU), which is commonly blamed for the inflexibility of WTD implementation and frequently lauded by supporters of Brexit as an example of supranational over-reaching. The CJEU, like any Court, is charged with interpreting and enforcing the law made by the legislative institutions, within the context of the specific cases which are brought before it. The WTD was written and adopted by UK ministers and MEPs, along with their continental colleagues, as members of the Council of the EU and of the European Parliament. The Court’s role is simply to rule on the proper implementation of the WTD to ensure that workers are equally protected across the Union.

The Department of Health, the NHS and the broader health community was caught off-guard by the WTD. Its implications for the health sector were not adequately foreseen simply because, at the time, the EU was only considered a health actor and an influence in health policy by a handful of people. By 2006, when the EU sought to include health in the Services Directive and open it up to market competition and privatisation, health actors were far more alert and better prepared and reference to health was quickly removed from the text. In 2007, the NHS European Office was established, to monitor, analyse and coordinate response to the EU’s influence over the UK health sector. As such, lessons were learned from the WTD and the indirect impact of EU policy upon health is now far better understood.

The Patients’ Rights Directive

After the removal of health from the Services Directive, the EU drafted a dedicated Directive on cross-border health services. This provides that all EU citizens have the right to seek healthcare in another member state and to be reimbursed up to the value that the same treatment would have cost in their home country. National health systems may only require a patient to seek prior authorisation where the treatment will require an overnight stay or is highly specialised (and thus expensive). The introduction of the Directive raised concerns on two fronts – firstly in relation to the pressure which might be put on health systems by influxes of foreign patients, and secondly in relation to the cost of reimbursing countless patients for treatment received abroad. The deadline for implementation of the Directive was October 2013 and a first report on its operation was published by the European Commission in 2015. It finds that the impact of the Directive has been minimal.

Since its introduction, there have been 560 requests for prior authorisation across the EU, 360 of which were granted. The number of countries receiving more than 1000 requests for reimbursement is just four, whilst the number of countries receiving less than 100 such requests is 14. The vast majority of requests and reimbursements have been issued in countries such as Luxembourg and Finland, which have a long-established history of seeking care in neighbouring countries and which had various bilateral agreements to facilitate this prior to the introduction of the Directive. For the UK, no major impact has been reported. Indeed, experts have noted that the Patients’ Rights Directive is essentially a solution without a problem.

TTIP and the privatisation of the NHS

Perhaps the most contentious contemporary issue facing the EU and its impact on national health systems is the negotiation of the TTIP. The primary threat posed by this international trade agreement is that, if not worded carefully, it holds the potential to open health systems to competition and privatisation by US and European companies. The challenge for health actors and policy-makers more broadly is that the negotiations are carried out in secret. Moreover, whilst the European Parliament will vote to adopt or reject the final agreement, it will likely be required to vote on the complete text, removing the possibility of vetoing certain provisions whilst supporting others.

The threat from TTIP is very real and careful monitoring of its (slow) progress is vital to ensure health interests are protected, not only from the liberalisation of health services but from damaging weakening of standards in advertising of junk food to children, for instance. However, there is reason for cautious optimism. Firstly, the negotiating positions of both parties are now publicly available and, from the latest European Commission position, it is clear that the highly controversial and dangerous Investor State Dispute Settlement (ISDS) mechanism which was originally proposed has now been revised. Secondly, both the European Parliament and the Council of the EU will be required to adopt or veto the agreement and the Commission, keen to ensure adoption of the final deal, will continue to work towards a text which both legislative bodies can agree to. Finally, the political establishment in Brussels and London has made repeated and explicit commitment to the preservation of a public NHS and national control over health systems – whilst a political flip-flop would not be unprecedented, it would be highly controversial and deeply politically damaging in light of the loud and public pledges made to date.

It is difficult to be certain of how the TTIP will impact upon health systems and certainly risks exist, but reassurance might be taken from the statement of Professor Martin McKee, arguably the UK’s leading health representative in the EU:

“As someone who has been highly critical of the TTIP negotiations in the past, I am now substantially reassured…it is now clear that the threat to [publicly-funded health services] arises from national governments, rather than the EU or international trade deals.”

As the document leak revealed by Greenpeace last weekend demonstrate, the greater threat from TTIP is in the weakening of environmental and broader social standards, many of which are considerably lower in the US. Moreover, whilst TTIP warrants concern and close attention, there are two immediate reasons why its risks are not an argument for leaving the EU. Firstly, once out of the Union, the UK would likely have to negotiate its own deal with the US, wielding considerably less leverage on its own. Secondly, as noted above, the greater threat to the NHS comes from the privatisation and reform agenda of the UK government.

Going forward: reasons for active engagement and close scrutiny

In 2014 the UK government conducted a Balance of Competences Review to assess whether the division of authority between the UK and the EU is appropriate. The Health Review, overseen by the Department of Health, noted some difficulties and inconsistencies in the implementation of particular pieces of legislation, such as the WTD and the Clinical Trials Directive, and recommended further examination of the impact of these legal frameworks. However, its conclusion states that ‘…based on the evidence submitted, the current balance of competence between the EU and the UK was considered by stakeholders to be broadly appropriate…EU activity in areas relating to the single market and public health is recognised to add value in the health sector’. In most areas, health activities were either better undertaken at EU level – for instance in the case of communicable disease monitoring – or likely to result in similar legislation regardless of the level at which competence lies, as in the regulation of non-ionising radiation.

This is not to say that EU health policy – or indeed any other policy – functions perfectly or that no further improvements could be made. There are many areas where inconsistencies and inefficiencies need to be addressed and where recent developments are cause for concern. To give three brief examples:

  • The post of European Commission Chief Science Advisor, which was created to provide the Commission with timely, independent advice on new and changing scientific knowledge, have been vacant since November 2011.  Of even greater concern, Jean-Claude Junker attempted to abolish the position altogether when he took office, forced to reconsider only by the strong opposition of the European Parliament. The post remains unfilled, posing serious questions about the Commission’s commitment to evidence-based policy.
  • The EU’s Alcohol Strategy, the centrepiece of its alcohol policy, expired in 2012 and has not yet been replaced. Angry at the Commission’s inaction, a number of health NGOs walked off the Alcohol Forum, the industry-heavy platform which has hosted alcohol policy discussions since 2007, in summer 2015. As such, and despite calls from member states for the Commission to publish a new Strategy on targeting alcohol-related harm and misuse, the EU remains without an alcohol policy.
  • The European Semester, the annual cycle of economic policy coordination introduced in the wake of the economic crisis, presents a new and highly complex challenge to health policy actors. Though focused on economic policy and non-binding in nature, it has made increasing reference to health expenditure and included increasingly detailed prescriptions for national health systems since its introduction in 2011. Its implications are difficult to foresee but it represents a new frontier of health policy with the potential to impact upon the core of national health competences.

The EU’s health policy, much like the EU itself has developed in an opportunistic, uneven manner and consequently faces a number of challenges and contradictions. However, the benefits reaped by the UK’s public health and healthcare systems, be it through shared knowledge, research funding, professional recruitment or access to services, are considerable. Moreover, the UK’s role in helping other European health systems to improve their quality and accessibility solidifies its position as a leader in the fight against health inequality. The NHS is at the heart of British society and social democracy and an institution which sets the UK apart. Particularly at this time of social crisis and uncertainty, one might argue, the UK has both a vested interest and a moral obligation to share its wealth of knowledge, expertise and resources to ensure that the health of all Europeans is protected and championed.

For further information and a more eloquent elaboration of the value of the EU for health, see the website of the Healthier In campaign, available here.



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