The most important legal texts at international level

The notion of a right to health is related to the public health movement that began in the nineteenth century and to the recognition of a third generation of rights in the twentieth century, the so-called ‘social rights’. The Constitution of the World Health Organisation (WHO) of 1946 was the first international human rights document to formulate the concept of a right to health, stating in its preamble that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’. The subsequent documents of the United Nations containing a right to health provision were inspired by the WHO definition. Thus, two years later, the Universal Declaration of Human Rights addressed the right to health in its Article 25(I).

However, the first specific clause in an international human rights document with regard to the right to health only came up in 1966, in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Along the same lines as the ICESCR, the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), in its Article 12, and the Convention on the Rights of the Child (CRC), in its Article 24, also address specifically the right to health in relation to the respective groups protected by the Conventions.

It is, however, the ICESCR that provides the fullest and most definitive conception of the right to health. The provision has a broad scope and is concerned not only with a right to health-care services but also with background conditions that affect health. Regarding the right to health care, with which this article is concerned, the provision does not say much. Thus, to understand better the content of this provision it is necessary to consider the General Comments of the UN Committee on Economic Social and Cultural Rights (Committee on Economic Social and Cultural Rights (CESCR)) in order to infuse concrete substance into this right, identifying its elements and related principles.

In 2000, the Committee put forward the General Comment 14,Footnote ⁴ which can be considered the official interpretation of Article 12 of the Covenant. This document addresses several issues concerning the right to health, but especially the content of the right, state's obligations, violations and implementation at national level. The text starts by stating that the ‘realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the WHO, or the adoption of specific legal instruments’. From this introduction we can already see that the document is much more concerned with state's duties in terms of the realisation of the right to health, which includes the provision of a range of facilities, services and conditions, than with individuals’ entitlements.

Content, principles, entitlements and obligations related to the right to health

In terms of the content of the right to health (Article 12.1), the Comment refers to the right to health as containing both freedoms and entitlements. The issue of freedoms is related to negative rights pursued by individuals that must be respected by states, such as the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from torture, non-consensual medical treatment and experimentation. Entitlements, by contrast, are related to positive rights, which have an individual as well as a collective dimension. Hence, according to the Comment, Article 12 includes both these dimensions. However, as noted, collective rights are critical in the field of health, because modern public health policy relies heavily on prevention and promotion – which are approaches directed primarily to groups – rather than on curative care, which is directed to the individual. In this regard, the Comment does not address the question of entitlements from the point of view of an individual right, but rather refers to ‘the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’,Footnote ⁵ which seems to be consonant with the forms of the realisation of this right described at the beginning of the document.

Furthermore, the right to health is interpreted by the Committee as an inclusive right extending not only to timely and appropriate care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, sufficient supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. The Committee also considers the participation of the population in all health-related decision-making at community, national and international levels as an aspect of the right to health.

Yet in relation to the content of the right to health, this document is very helpful because it states the four fundamental principles related to this right, namely, availability, accessibility, acceptability and quality. The principle of availability means that functioning public health and health-care facilities, goods, services and programmes have to be available in sufficient quantity within the state, including safe and potable water and adequate sanitation facilities, hospitals, clinics, trained medical and professional personnel, and essential drugs. According to the document, however, other factors have to be considered when addressing states' obligations regarding this principle, such as the country's state of development.

The principle of accessibility is divided into four categories or dimensions: non-discrimination, physical accessibility, economic accessibility or affordability, and information accessibility.

The principle of acceptability means that health services must be respectful of medical ethics and culturally appropriate, respecting minorities and sensitive to gender and life-cycle requirements.

Finally, the principle of quality means that health facilities, goods and services must be scientifically and medically appropriate and of good quality. According to the Comment, this requires ‘skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation’.Footnote ⁶

It is important to notice that Article 12.2 of the Covenant provides for some examples regarding the action to be taken by states in the realisation of the right to health-care services. In this regard, the General Comment emphasises that equality and non-discrimination are the principles that must guide the provision of health-care facilities. Moreover, the document points out that appropriate resource allocation is an important tool to prevent discrimination.Footnote ⁷

When it comes to obligations, the General Comment, although acknowledging the limits of available resources, considers that two main obligations are of immediate direct effect: to guarantee that the right to health will be exercised without discrimination and to take steps towards the full realisation of the right. Furthermore, as with other human rights, the right to health imposes three types or levels of obligations on states parties: the obligation to respect, protect and fulfil. The first one is directly related to individuals’ freedoms and requires states to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires states to take measures to prevent third parties from interfering with the guarantees provided for in Article 12. Finally, the obligation to fulfil requires states to adopt, for example, appropriate legislative, administrative, budgetary, judicial and promotional measures towards the realisation of the right to health.

In terms of provision and access to health-care services, with which this article is concerned, the obligation to fulfil is the most important one. According to the General Comment, the obligation to adopt a national health policy with a detailed plan for realising the right to health falls within the scope of the obligation to fulfil. This includes the provision of a health system which is affordable for all and which provides health-care facilities, goods and services on a non-discriminatory and equitable basis.

With regard to violations, and especially violations related to the obligation to fulfil, which is the most important for the provision of and access to health-care services, some of the examples given by the General Comment are: ‘the failure to adopt or implement a national health policy designed to ensure the right to health for everyone; insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized’.Footnote ⁸

Finally, in relation to the implementation of the right to health, the basic tool referred to by the Comment is the adoption of a framework legislation containing national policies and strategies to ensure for all the enjoyment of the right to health, as well as identifying the available resources to attain its objectives. Other tools mentioned by the document are the adoption of health indicators and benchmarks, and remedies and accountability. With regard to remedies, the Comment states that ‘Any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels’.Footnote ⁹ The incorporation in domestic legal order of international instruments recognising the right to health is also referred to as a way to enhance the scope and effectiveness of the right to health.

From the analysis of General Comment 14, especially of what concerns the right to provision and access to health-care facilities, it is possible to say that the principles of equity and non-discrimination play an important role in relation to this right. According to the Comment, they are embedded in the content of the right to health, influencing, thus, all the approaches taken in relation to this right, be it in terms of obligations, violations or its implementation.

The most important human rights documents at European level

The most important human rights documents at European level were adopted by the Council of Europe. The best known of these is the European Convention on Human Rights (ECHR). However, in this Convention there is no specific provision concerning the right to health, which is regarded as part of the right to life or as part of the right to private life, provided for, respectively, in Articles 2 and 8 of the Convention. Thus, it is difficult to raise a discussion about the content and principles of the right to health in relation to this legal text.

Nonetheless, two other European legal texts provide specifically for the right to health and the right to access health care; they are the European Social Charter (ESC) and the Convention on Human Rights and Biomedicine (CHRB). The ESC is considered a complement to the ECHR, since it guarantees economic and social human rights while the Convention protects civil and political human rights. However, there is a considerable difference between these two legal texts, since the Charter is not binding on states and violations are not subject to the European Court of Human Rights (ECtHR).

In spite of the non-binding effects of the Social Charter, this legal document is part of a different mechanism of governance within Europe, which includes a collective complaint procedure and a monitoring procedure based on national reports. According to this mechanism, the European Committee of Social Rights (ECSR) examines the reports and decides whether or not the situations in the countries concerned are in conformity with the Charter.

With regard to the right to health, the Social Charter provides for this right in its Article 11. This provision has already been interpreted by the ECSRFootnote ¹⁰ and this interpretation clearly points out the principles and elements embedded in the provision of and access to health-care services. In this regard, according to the Committee's interpretation, the system of health care must be accessible to the entire population and states should take as their main criterion for judging the success of health system reforms effective access to health care for all, without discrimination, as a basic human right. Furthermore, the Committee considers that the right to access to health care implies: (a) that the cost of health care should be borne, at least in part, by the community as a whole; (b) that health costs should not place an excessive financial burden on individuals – steps must therefore be taken to reduce the financial burden on patients from the most disadvantaged sections of the population; (c) that arrangements for such access must not lead to unnecessary delays in its provision – access to treatment should notably be based on transparent criteria, agreed at national level, that addresses the risk of deterioration both in clinical and quality of life terms; and (d) that the number of health-care professionals and equipment must be adequate (the criterion is three beds per thousand population).

Therefore, it is possible to argue that the principles stated by the Committee's interpretation are considerably similar to those found in Article 12 of the ICESCR. Accessibility, non-discrimination and quality are expressly referred to in the interpretation of Article 11. Moreover, although not clearly mentioned, equality is an embedded principle contained in this Article, insofar as there is a special concern for reducing the financial burden on patients from the most disadvantaged sections of the population.

The Convention on Human Rights and Biomedicine, in turn, refers specifically to access to health care in its Article 3. The principles of equity and quality are clearly stated by this provision. The explanatory report on this ConventionFootnote ¹¹ clarifies the meaning of these principles and provides for definitions of some terms used in Article 3. The report gives a definition of the term ‘health care’, stating that it means those services offering diagnostic, preventive, therapeutic and rehabilitative interventions, designed to maintain or improve a person's state of health or alleviate a person's suffering. This care must be of a fitting standard in the light of scientific progress and be subject to a continuous quality assessment. Regarding the expression ‘equitable access’, the report considers that ‘equitable’ means ‘first and foremost the absence of unjustified discrimination. Although not synonymous with absolute equality, equitable access implies effectively obtaining a satisfactory degree of care.’Footnote ¹²

Moreover, the report also provides an important clarification for the general aim of the provision, explaining that ‘the purpose of Article 3 is not to create an individual right on which each person may rely in legal proceedings against the state, but rather to prompt the latter to adopt the requisite measures as part of its social policy in order to ensure equitable access to health care’.Footnote ¹³ This option for a more collective approach to the right to access health care is aligned with the position adopted by the Committee on Economic, Social and Cultural Rights over the interpretation of Article 12 ICESCR.

Therefore, considering the text of Article 3 and the clarifications provided in the explanatory report, it is possible to conclude that the principles of equity, quality and non-discrimination are the focus of the Convention on Human Rights and Biomedicine in relation to the access to and provision of health-care services.

Finally, it is also important to mention the Charter of Fundamental Rights of the European Union. Although not a human rights document, the Charter proclaims in its Article 35 that:

Compared to the documents of the Council of Europe, the Charter has its application restricted to the European Union level. At the Union level, the Charter now plays a very important role with the entry into force of the Treaty of Lisbon, since, according to Article 6 of the Treaty on European Union, it is considered to have the same legal value as the Treaties. Before being considered as part of European Union law, Article 35 of the Charter was rarely mentioned by the ECJ in cases concerning the provision of health-care services. With the new binding effects of the Charter it is likely that the ECJ will use it more often in order to support its decisions.

According to Article 35 of the Charter, health care is a fundamental right, be it at the level of preventive care or at the level of curative care (medical treatment). The reference to ‘everyone’ can be understood as a reference to the principle of accessibility to health care, as well as to the principle of equality and non-discrimination. Indeed, due to the importance of these two last principles as fundamental rights, they are addressed separately in Articles 20 and 21 of the Charter. The second part of Article 35 addresses the issue of public health in relation to other policies. It is important to notice, however, that the Charter does not provide for a personal entitlement in relation to the right to health care. Instead, this right is subject to the conditions established by national laws and practices, which is aligned with Article 168 (7) of the TFEU.

The analysis of the international and European documents regarding the right to health enables us to identify the common and core principles related to the provision of and access to health-care services in human rights law. Although not necessarily written down, the principles of non-discrimination and equality can be drawn on from all the provisions regarding the right to health care. Moreover, they are expressly mentioned in the documents and reports that interpret and discuss the content of some provisions. The principle of equality means not only equality under the law. Equality in terms of access to health-care services, goods and facilities is an aspect of equity in health care and this encompasses the horizontal and the vertical aspects of equity. By horizontal equity we mean that persons in equal need should be treated the same whereas vertical equity means that persons with greater needs should be treated more favourably (Culyer and Wagstaff, Reference Culyer and Wagstaff1993).

The principle of accessibility (meaning both economic and geographical) is also present in all those documents. It is closely related to the principle of equal access, but in the case of accessibility, access must be provided to all without the precondition of measuring needs, as required in the principle of equal access.

The principle of quality can also be considered as a common element present in all those human rights texts. This principle shows concerns not only over the quality of health-care services, goods and facilities, including health professionals, but also over the safety of patients.

Two last issues deserve to be addressed at this point. First, it is important to note that all those documents acknowledge the constraints imposed by the limits of available resources. This leads to the conclusion that access to health care is to be guaranteed by a specific set of benefits that varies from country to country and not to every service people may need or want. The second point is that those documents also show concern over the participation of the population in all health-related decision-making processes. Hence, the definition of health policies and actions will vary according to states’ wealth and the decisions over these policies, including those about the allocation of resources, must include the participation of the community.

Why a human rights approach to the right to health care promotes a collective view of this right

Considering the definition used above to characterise a communitarian view of health care and the importance of the principle of equal access as well as the balance between individual and societal interests in this approach to health care, it will be now argued that from the international and regional human rights documents already analysed in this article it is possible to draw on elements that suggest a communitarian view of health care.

Starting with Article 12 of the ICESCR and its interpretation by General Comment 14, we can see that this document starts its analysis with the normative content of Article 12, stating that the entitlements provided for therein include ‘the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’.Footnote ¹⁵ Therefore, although referring to an entitlement in relation to the right to health, this entitlement does not express only an individual right since it is combined with the principle of equality. The reference of ‘equality of opportunity for people’ is a clear demonstration of the balance between the individual right and the public interest.

When referring to the interrelated and essential elements of the right to health (availability, accessibility, acceptability and quality), the document refers several times to the questions of non-discrimination, especially on social grounds, and of equity. The document states, for example, that ‘health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination in any prohibited grounds’.Footnote ¹⁶ It also provides that ‘Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households’.Footnote ¹⁷ This is a reference to the vertical aspect of equity – which requires that persons with greater needs should be treated more favourably – and shows that human rights law is very much concerned with the health of individuals in less favourable social conditions. Since a communitarian view of health care suggests that by virtue of our membership of a certain society we must have a concern for the health of others, these references are also a reflection of a communitarian view of health care.

Furthermore, it is important to point out that the General Comment also addresses the question of equality from the point of view of the allocation of resources within the health system. It thus states that ‘investments should not disproportionately favour expensive curative health services which are often accessible only to a small, privileged fraction of the population, rather than primary and preventive health care benefiting a far larger part of the population’.Footnote ¹⁸

In respect of the questions of the fulfilment and the implementation of the right to health at national level, the document is also devoted to measures which favour the whole community, such as the provision of a health system affordable for all, and the promotion of medical research and health education as well as the adoption of a legal framework in order to implement health policies.

Finally, it is important to note that the Comment recognises the collective as well as the individual dimensions of the right to health. However, it highlights the importance of the collective dimension due to the fact that modern public health policies rely heavily on strategies devoted to groups, such as prevention and promotion.

Like the ICESCR, the European documents can be interpreted as promoting a communitarian view of the right to health and health care. The provisions contained in the ESC and the CHRB consider the principle of equity as the core principle in the field of health care. In the case of Article 11 of the ESC, although the principle is not provided clearly in the wording of the Article, the interpretation put forward by ECSR considers the importance of equality in the provision of health care, regarding health care as a social good. By establishing that the cost of health care should be borne, at least in part, by the community, the ECSR shows that health care is an important good for the whole society, and thus that the notions of reciprocity, mutuality and community must be present in the provision of this good. Furthermore, the concern about the most disadvantaged sections of the population demonstrates that equality is an essential principle governing the access to health care.

Article 3 of the CHRB is even clearer about the role of equality in health care, since the Article itself establishes as a state obligation the provision of ‘equitable access to health care’. Moreover, the report on the interpretation of this legal norm expressly mentions that the scope of Article 3 ‘is not to create an individual right on which each person may rely in legal proceedings against the State, but rather to prompt the latter to adopt the requisite measures as part of its social policy in order to ensure equitable access to health care’.Footnote ¹⁹

As we can see, the European human rights documents are even clearer in adopting a communitarian view in relation to the right to health. The report on Article 3 of the CHRB leaves no doubt that any interpretation of this right has to be focused on equality and the question of equal access rather than on the issue of entitlements. In fact, the European Court of Human Rights had the opportunity to give its opinion about rights and entitlements in the field of health care when analysing the admissibility of a case involving the provision of health-care services/goods. The case referred to the provision of a robotic arm designed to be mounted on wheelchairs in order to give more autonomy to a person suffering from Duchenne Muscular Dystrophy (DMD).Footnote ²⁰ The device cost about 36,000 euros and its provision was refused in the proceedings at national level. The applicant appealed to the ECtHR submitting that the right to respect for his private life, guaranteed by Article 8 of the European Convention on Human Rights, ‘entailed a positive obligation for the State to provide him with, or pay for, this medical device’.Footnote ²¹

Although the application was declared inadmissible, the Court went through the question of individual entitlements in the field of health care and the balance between the individual and community interests, arguing that ‘regard must be made to the fair balance that has to be struck between the competing interests of the individual and the community as a whole’.Footnote ²²

The analysis of the ECtHR in relation to this case shows that a human rights approach to the right to health care regards the individual as part of the community and requires a balance between the two interests. Concern about the principle of equality in access is also contained in the human rights approach, insofar as the judgment shows that equal services must be provided for people with the same health needs. This does not mean, however, that a human rights approach trivialises the language of rights and sets aside individual rights and entitlements in relation to the provision of health care. The rights discourse may shape health policy and enable insistence on choices and decisions, including those relating to the structure of the health system, based on the fundamental principles provided for in human rights law, such as equality and non-discrimination, and accessibility (Marks and Clapham, Reference Marks and Clapham2005). Moreover, a human rights approach also leaves space for the introduction of individual rights and entitlements provided that these rights are weighed against community interests and prove to be adequate in a certain social context.

Why the type of policy developed at European level may be said to promote an individualist view of the right to access health-care services

First, it is clear from the judgments regarding cross-border health care and from the new directive on patients’ rights that all types of health-care services, including hospital or non-hospital services, have an economic character, and thus are similar to other services provided in the market (in this case, in the Internal Market context).Footnote ²³ The assumption that all types of health services are economic servicesFootnote ²⁴ and thus fall within the scope of the rules on the freedom to provide services is the first point that can be said to be promoting an individualist view of the provision of health services and contrasting with important values of European health systems. As noted above, one of the differences between the communitarian and the individualist views is that the first attributes a moral importance to health care, which is seen as a social good, whereas the latter does not acknowledge this special moral importance, viewing it only as a commodity to be purchased in a market just like any other. Accordingly, from the moment that health-care services become an issue pertaining to the Internal Market rather than to social security matters, they lose their special nature as a social good, becoming a commodity subject to the rules applied to any other kind of service.Footnote ²⁵ Furthermore, this way the patient is considered in isolation rather than as part of the community as a whole, which contrasts with the redistributive nature of health care as a social service (Borges, Reference Borges2010).

The case-law of the ECJ and the new directive on patients’ rights show that the process of European economic integration has spilled over into some areas which were not thought to be affected by the Internal Market rules or the fundamental freedoms. Accordingly, when this process reaches the provision of health services it implicates a more prominent role of the market in the provision of these services. Moreover, this approach is also influenced by the framework of Services of General Interest (SGI),Footnote ²⁶ which also indicates a more economic approach in relation to health services (Cygan, Reference Cygan2008).

Second, the approach taken at EU level promotes freedom of choice for patients. As Kaczorowska (Reference Kaczorowska2006) argues, ‘the ECJ created a right to effective and speedy medical treatment for patients’. In fact, the aim of Directive 2011/24/EU is to gather the principles and rights created by the ECJ jurisprudence in order to ensure both patients’ mobility and the freedom to provide health care.Footnote ²⁷

Third, it may be contended that the approach taken at the Union level in relation to health care does not show concern about equity. As argued above, equal access to health care means meeting the population needs of health services in an equal way, and the new rules put forward by the directive on patients’ rights – which reflect the decisions taken by the ECJ on cases of cross-border health care – may seriously affect the principle of equal access to care. Assuming that equity of access is also measured by the nature and extent of barriers imposed on patients, the costs of receiving treatment abroad – which are paid for by patients and then reimbursed by the Member State of affiliation – can be regarded as a financial barrier to access, which has a higher impact on lower-income groups than on higher-income groups (Oliverand and Mossialos, Reference Oliver and Mossialos2004). Moreover, it should be taken into account that income-related inequalities in the use of health care already exist in many European countries and this type of financial barrier is likely to increase these inequalities (Doorslaer, Koolman and Jones, Reference Doorslaer, Koolman and Jones2004). In fact, it is possible to argue that this mechanism of cross-border health care is based on the ability to pay, which is a value common in libertarian systems.

The main objective of Directive 2011/24/EU is ensuring the freedom of patients and providers to receive and provide health care. To reach this objective the directive uses more flexible mechanisms than those stated in Regulation 883/2004Footnote ²⁸ (ex-Regulation 1408/71). Broadly, the system established under this Regulation is based on four overarching principles: non-discrimination on grounds of nationality; the principle of apportionment of benefit rights; the exportability of benefits; and the ‘single state’ rule in terms of affiliation, liability to contribute and benefit entitlement (Hervey and McHale, Reference Hervey and Mchale2004, p. 113). Furthermore, the Regulation provides for an eligibility criterion for receiving health care abroad which is based on the notion of emergency. Hence, certain categories of people are eligible to receive treatment outside their country of residence without having to meet the criterion of urgency.Footnote ²⁹ All other persons must instead meet the criterion of need/emergency in order to be treated abroad during a temporary visit.Footnote ³⁰

Regulation 883/2004 also provides for the case of planned health care abroad (Article 20). However, in this situation patients must obtain prior authorisation from their social security scheme. In this regard, it is important to note that the Regulation does not provide for the conditions governing the granting of prior authorisation, but it states only those situations when the authorisation cannot be refused, namely: (1) when the treatment required is provided among the benefits package of the health-care system of the patient's Member State of residence; and (2) when the treatment cannot be provided to the patient in his/her Member State of residence within the time normally necessary for obtaining the treatment in question.Footnote ³¹

By contrast, the mechanisms provided for in Directive 2011/24/EU are based on reimbursement, i.e. patients travel abroad to receive medical care through out-of-pocket payments to then be reimbursed by their own health systems. The concerns about the impact of this mechanism in the principle of equal access to care refer mainly to the case of non-hospital care, since the case of hospital and specialised care are still subject to authorisation, which is a mechanism already used by Regulation 883/2004.

A good way to understand this argument is by trying to answer the question: What kind of patients will benefit from this new European market for health care? If people who travel abroad to receive non-hospital care have to pay for it out of their pocket, it is only those having enough resources to bear the expenses of travelling and of anticipating the costs of the treatment itself who will be able to exercise the patients’ free movement rights. In this regard, it is important to bear in mind that many health systems within the EU provide for benefits-in-kind.Footnote ³² Thus, in these countries, people are not used to paying for receiving health services. Therefore, in theory, the directive is to ensure patients’ rights for all, but in practice it will benefit a vocal minority, composed of the wealthier members of society, who can really make use of these new rights. This ensures only equality under the law, but not equality in terms of equal access to care and of needs.

Imagine, for example, the situation of two patients, A and B, who are affiliated to the same national health system that operates on a benefits-in-kind basis. They have the same health problem, the same need for care, and thus the same prescription for a non-hospital treatment, for which there is a waiting list. Patient A has sufficient resources to travel and to pay for this non-hospital treatment and decides to have the treatment abroad, where he/she will not have to wait. By contrast, patient B, who is not as wealthy as patient A, will wait four months in order to have the same treatment provided in his own country.

Therefore, although conferred upon all European citizens, cross-border health care is likely to be exercised by a minority of Europeans who can afford the price of mobility. As Kolb (Reference Kolb and Bussemaker1999, p. 173) argues: ‘The free moving Europe des elites is also a reality in that sense. The potential legitimating power of EU social legislation could, thus, be diminished by its restricted scope and the social discrimination that it reveals.’

It seems, thus, that the kind of policy that is being developed at the European Union level in relation to access to health services, although in theory supposed to respect equity, is much more concerned with providing freedom of choice to patients and to health providers, without caring about the impact that this may have on access to care. Individual rights may be won at the expense of the principle of equal access for equal needs and the objective of reducing inequalities in health care between social groups. This policy is actually creating a mechanism based on the ability to pay, common in health systems such as that of the United States, which provokes unequal access to care.

Accordingly, the Union policy in terms of health care is promoting an individualist view of it, setting aside principles that inform a communitarian view of health care, especially the principle of equal access to services, based on actual needs. As Greer (Reference Greer2008a, p. 9) claims: ‘Equity concerns are not very important – it takes a creative mind to argue that patient mobility is anything other than a boon to the wealthy and articulate.’

It is true that it is very easy to sympathise with the individual rights discourse and with the idea of providing freedom to patients to receive treatment. However, a better analysis of the subject shows us that there is a serious risk of promoting these rights just for the wealthier and well-represented members of the society, causing huge inequality under the health system in terms of access to care.

On the other hand, it is important to notice that enforceable individual rights and entitlements play an important role in contexts where people are socially excluded and marginalised. In this case, the balance between the individual right and the community interests shows that enforcing the individual rights is the only way to achieve equity. This is the case of some courts’ decisions in developing countries concerning the access to health services.Footnote ³³

However, this is not the case of cross-border health care in Europe. The level of prosperity of European health systems is higher than those of South Africa or other developing countries. In the case of Europe, the shifting focus towards individual rights threatens to undermine equity under the health systems, because in such a context the rights and entitlements created will benefit the socially advantaged most, that is, those patients who can afford the costs involved in going abroad for health treatment, which can sometimes also involve litigation before administrative and judicial bodies.

Apart from the impact that the policy developed at European Union level may have for individuals because of its interference with the principle of equal access to care, this policy may also have serious effects for Member States’ health systems. Although these effects may impact directly on the systems, they are likely to also affect individuals and consequently the principle of equal access to care. Therefore, in the next section attention will be turned to an analysis of some of the effects that this policy may have on Member States’ health systems.

Some other effects of the European Union health-care policy for national health systems

Another point that must be made in relation to the individualist view reflected in European Union health-care policy is its interference with the planning of health care within national health systems, including the allocation of resources and the setting of priorities. This is related, even if indirectly, to a communitarian view of health care because planning in health care is a means of providing equality of access to care. Planning and the setting of priorities in health care is system-based, since each government has to evaluate the main needs of its population in terms of health care in order to decide on the range of services to be provided by the health system, and these needs change from one place to another (Daniels, Reference Daniels2008).

Directive 2011/24/EU abolishes the requirement of prior authorisation for non-hospital care. This, per se, directly affects the principle of equal access to care as shown above. However, this mechanism may also affect the planning and management of health systems insofar as health authorities will have no control over expenditure within the system. Probably, this will be even worse for health systems that operate by providing benefits-in-kind because usually these systems have their own doctors and nurses and are served by a public infrastructure, including clinics and hospitals. Since patients use the state infrastructure, the system does not have to pay for reimbursement (Greer, Reference Greer2008a). How, then, can these systems cope with the reimbursement of health treatments for which they have not planned? Furthermore, the great majority of health systems use gatekeeping as a way to contain health-care costs. However, the visit to a specialist abroad can be used to circumvent waiting lists as well as the rules of gatekeeping, making Member States lose control over the planning and management of their systems.

The interference of European Union health-care policy with national health-care planning also involves the risk of undermining the financial balance of Member States’ health systems. Actually, this is an argument often raised by national authorities in cases of cross-border health care brought before the ECJ,Footnote ³⁴ especially by those Member States which operate by providing benefits-in-kind rather than reimbursement. In these judgments, the Court recognised that the administrative measures required by social security schemes, such as authorisations, were necessary for the planning of health systems in order to ensure the existence of sufficient and permanent access to a balanced range of treatment and to control costs and prevent any waste of financial, technical and human resources.Footnote ³⁵ Moreover, the Court also recognised that it may constitute, per se, an overriding general-interest reason capable of justifying a barrier (e.g. prior authorisation), insofar as cross-border health care could have consequences for the overall level of public health protection and could seriously undermine the financial balance of the social security system.Footnote ³⁶ However, in order to constitute an overriding general-interest reason, the administrative measures imposed by Member States would have to be necessary and proportionate.Footnote ³⁷

Since in none of the cases of cross-border health care mentioned in this article, involving measures such as authorisation,Footnote ³⁸ the Court held the measure as an overriding reason, capable of undermining the financial stability of national health systems, it seems that Member States failed to prove and justify before the Court the risks of cross-border health care for the financial balance of their health systems.

Indeed, a further argument used by the Commission and held by the Court is that there are not sufficient documents to indicate that the removal of the requirement for prior authorisation for cross-border health care would give rise to patients travelling to other countries in such large numbers, despite linguistic barriers, geographic distance, the cost of staying abroad and lack of information about the kind of care provided there, that the financial balance of the social security systems would be seriously upset and that, as a result, the overall level of public health protection would be jeopardised.Footnote ³⁹

The assumption that only a few patients every year will seek health care abroad was rejected, for example, by Advocate General Colomer in his opinion in Müller-Fauré.Footnote ⁴⁰ As he argued:

He continued, stating that:

Therefore, it is important to think about the actual impact that the European Union policy concerning cross-border health care might have for national health systems. Besides the question of affecting their financial balances, the features of this policy may lead to a ‘race to the bottom’, since Member States that provide a higher standard of services or whose medical profession enjoys a high reputation may attract free movers seeking treatment, and if such pressures reach extreme levels, there might be a temptation on the part of national authorities to reduce the quality of service provided, in order to discourage such ‘medical tourism’ (Hervey, Reference Hervey2002). In this regard, it is important to take into account the situation of the new Member States. Despite the reform of their health systems, they are still under-funded, and if the right to exercise cross-border health care becomes a reality in those countries, the stability of their health systems may be at serious risk (Kaczorowska, Reference Kaczorowska2006).

A last issue that deserves to be raised in this part of the article is the question of European Union competence in relation to health-care policy. Although it is not central to the broader discussion of this article, it helps to explain why Union health-care policy is much more concerned with promoting freedom for patients and providers. The question of competencies is sensitive in the field of health because the treaties that constitute the EU and allocate competencies are explicit about the limited extent of its powers in relation to health issues, which are largely confined to public health (Article 168 EC). However, if health services might not be part of the explicit domain of the EU, Internal Market law can shape the environment of health services (Greer, Reference Greer2008a). In fact, the legal basis of Directive 2011/24/EUFootnote ⁴³ is an Internal Market provision (Article 114).

Actually, this was the way that the ECJ shaped cross-border health-care decisions to fall within the scope of Internal Market provisions. According to Article 168 (7) EC, Member States have full responsibility over their health systems and the delivery of health services. Nevertheless, an important assumption taken by the Court to decide these cases was the recognition that the provision of medical services might comprise services normally provided for remuneration, within the meaning of Article 49 (now Article 56 of the TFEU). Furthermore, the Court introduced the principle that the national regulation of social security systems should be consistent with European Union law, because its special nature does not render it beyond the scope of European Union legal order (Koutrakos, Reference Koutrakos, Spaventa and Dougan2005). Accordingly, the crucial question is that the Court in these cases defined health services as an issue pertaining to the Internal Market rather than to social security matters.

This leads to the conclusion that European Union health-care policy has been developed solely as an Internal Market issue. This shows that health policies can be shaped by trade rather than by health departments (Greer, Reference Greer2008b). However, even if shaped by the market environment, the development of health policies requires a clear view and a statement of aims, priorities, limitations, responsibilities, methods and resource implications. Moreover, there is a need to preserve basic principles that are central to European health systems, such as the principle of equal access to health-care services. Otherwise, the notions of reciprocity, mutuality and public interest are at risk of disappearing from the provision of health services within the European Union.