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Dáil Éireann díospóireacht -
Thursday, 25 Oct 2001

Vol. 543 No. 1

Written Answers. - European Court Judgments.

Ruairí Quinn

Ceist:

72 Mr. Quinn asked the Minister for Health and Children his views on the recent ruling of the European Court of Justice that health authorities may only refuse to pay for treatment elsewhere in the EU if an equal quality of care is available locally, without undue delay; the details of legal opinion he has received on this matter; and if he will make a statement on the matter. [25619/01]

Regulation (EC) 1408/71, as amended by Regulation (EC) 2000/83, is the co-ordinating regulation covering the referral of patients abroad for benefits in kind, including hospital treatment. This regulation requires that patients seeking hospital treatment, in a EU member state other than their own, seek prior authorisation from their competent institution – ERHA-health boards in Ireland's case – prior to receiving this treatment. The most recent European Court of Justice judgments, in this area, have not changed this position in that they reaffirm the necessity for a person seeking hospital treatment abroad to seek prior authorisation from the relevant health board prior to receiving this treatment.

The European Court of Justice has ruled that due to the specific nature of hospital services member states should not be precluded from restricting the free movement of patients for the receipt of health care where such restrictions can be objectively justified. The risk of seriously undermining the financial balance of a social security system, the objective of maintaining a balanced medical and hospital service open to all and the maintenance of treatment capacity or medical competence on national territory are three such objective criteria set out by the European Court of Justice.

However, the court has ruled that the granting of such an authorisation must be subject to the conditions that the treatment must be regarded as normal in the professional circles concerned and the person's medical condition must require that treatment. In that regard, the court has also ruled that authorisation cannot be refused on the grounds of the treatment not being normal where it is considered that the treatment concerned is tried and tested by international science. In addition, authorisation can only be refused on the grounds of lack of medical necessity where similar or equally effective treatment can be obtained without undue delay in the person's member state. Indeed, there is provision in the current regulations that authorisation may not be refused where a person cannot be given treatment within the time normally necessary for obtaining the treatment in question taking account of the per sons current state of health and the probable course of the disease.
The European Court of Justice has ruled that a scheme of prior authorisation must be based on objective, non-discretionary criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities discretion, so that it is not used arbitrarily. My Department issued directions some time ago outlining the objective criteria which health boards must consider prior to referring patients abroad for treatment.
Officials of my Department, in conjunction with the Attorney General's office, are considering the possible implications of these judgments on the procedures applied by the health boards when referring patients abroad.
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