The Balance of Competences may not set pulses racing but EU's impact on NHS is a crucial issue

This afternoon, while the nation's attention is focussed on other matters, the government has released the first tranche of reports coming under the 'balance of competences review'. In total, six reports have been presented, of which health is the most interesting and politically significant. This is because although the EU Treaties make clear that health is primarily a national competence, the cumulative impact of EU laws on the NHS has been considerable, and in many areas largely detrimental. The report (somewhat diplomatically) states (on p.10) that:

"Concerns were also raised about various cross-sectoral EU legislation which has a significant impact on the delivery of healthcare in the UK. Many of these concerns related to proposals around data protection and the Working Time Directive (WTD) – neither of which were specifically designed with healthcare in mind."

The main issue is the impact of the EU's Working Time Directive - passed as a 'health and safety' measure, but in reality a politicised piece of social legislation - which has imposed significant additional cost burdens on the NHS as well as messing with the ability of junior doctors to learn effectively on the job. To re-cap quickly, the original Directive imposed a cap of 48 working hours, but this was then followed by a couple of rulings from the ECJ (see here for more details) which made a bad piece of legislation a lot worse by creatively interpreting its provisions concerning on-call time, further limiting the amount of time staff could spend actively looking after patients.

The Royal College of Surgeons has estimated that the WTD has led to a loss of 400,000 surgical hours per month, while the BMA has calculated it has led to the equivalent of the loss of up to 9,900 doctors. The total cost of the Working Time Directive to the UK economy currently stands at over £4bn every year, much of which falls on the NHS which has to employ additional staff - many of them locums. A recent Telegraph investigation found that many of these locums were being paid up to £2,000 per day to provide cover.

Aside from the (huge) direct financial cost, there is also the issue of trainee doctors not being able to gain the requisite level of experience, with potentially dangerous implications for patient care. The irony is that due to its own inflexibility, the Directive fails to even fulfil its basic premise of ensuring medical staff work sustainable hours - a number of investigations has found many doctors still work dangerously long hours.

Moreover, EU laws can further impact the NHS in the following, often unexpected areas:

• Language competence testing - a highly sensitive issue following the Dr. Ubani case,
• The Clinical Trials Directive which has contributed to a fall in the number of clinical trials taking place,
• EU data sharing legislation which could remove the exemptions for medical research charities,
• The Energy Efficiency Directive requires energy efficiency improvements from all public buildings which imposes a particularly heavy cost on the NHS,
• There is no data sharing obligation to inform the UK's regulator, the GMC if a doctor is struck off in another EU country,
• EU free movement which allows EU migrants the ability to access the NHS free of charge (although in theory the NHS is supposed to be reimbursed), 
• Wider issues around public procurement and competition law.

In conclusion there is clearly a clash between the EU treaties which state that health ought to be a national issue and the real impact of EU legislation on the NHS. In part, this could be due to the unique nature of the NHS compared with other European models but the political reality is that all main political parties are committed to broadly keeping the NHS. However, the report does note that other EU countries 'bypass' the WTD by treating service delivery and education via separate contracts, which suggests its not only the UK that has a problem with it, and that it could muster allies in an effort to force through reforms.

Highlighting such problems is exactly the point of the Balance of Competences review and its good that these issues are being brought to light. That said, for the impact to be lasting, this information must be turned into a political strategy and fed into the government's attempts to renegotiate the UK's position within the EU. Such a strategy is yet to be formulated, and the quicker this is done the clearer the impact of such reviews will be. 

The EU and the NHS: the long arm of Brussels

Yesterday we had two reminders of how far the EU's power reaches into the workings of member states. In this case, we're talking about the National Health Service.

MPs debated the impact of the Working Time Directive on the NHS - an issue we looked at here.

Charlotte Leslie MP, who organised the debate, sums up the problems in an article in the Times this morning:

"Doctors warn that the European Working Time Directive, which limits medics to working a 48-hour week, is having a devastating effect on patients’ treatment, doctors’ training and the expertise of future consultants. It was brought in to stop people working 100-hour weeks. But combined with the last Government’s complicated New Deal contract, the directive has put a straitjacket on doctors’ ability to train and to care for patients.

It imposes a 'clock-on-and-off' shift system that means junior doctors no longer get enough quality training with a consultant and patients become products on a conveyor belt. The lack of continuity means things go wrong.

Matters have been made worse by two European Court of Justice rulings. First, on-call time is counted in working hours even if the doctor is asleep in hospital accommodation. Second, if doctors have to go beyond their allotted shift time, they must take compensatory time off immediately. This all costs."  

During the debate, Ms Leslie said that the UK had to look at radical steps to deal with the issue and recognising the depth of reform needed added, "we must ask why we are in this situation, and we must look at the treaties." She cited our recent research on EU social policy, which includes the WTD, saying:

"Open Europe has suggested an interesting double-lock mechanism for negotiating our way out of what was the social chapter and creating a situation in which we are not bound by the rulings of the European Court of Justice. Those are big, radical steps and will take time, but it is something that we should look at.”

Unsurprisingly, the minister present at the debate ruled out the UK taking unilateral action to protect the NHS from the directive. 

Meanwhile, on the same day, we had the European Commission calling on the UK to drop an allegedly unlawful restriction stopping unemployed EU citizens who want to reside in Britain from claiming the NHS as their “sickness insurance”. Such insurance is a condition to reside in other member states under EU free movement rules. UK officials argue that the NHS cannot be seen as an insurance policy to EU citizens without health insurance and that the controls are essential to ensure the NHS is not overburdened with bills for treating non-UK citizens who are not working or economically active. The Commission has threatened the UK with legal action at the ECJ if the rules are not changed.

To put it simply, Article 7 of the EU’s Free Movement Directive states that for EU nationals to have a right of residence in the UK for more than three months and if they are not working they must:

"have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State;"

The Commission’s complaint is that the UK doesn’t consider access to the NHS to be sufficient to meet this requirement.

From the UK’s point of view, the concern is that EU nationals would have the right to treatment on the NHS but with no means for the NHS to be reimbursed for the care. If the EU national does not have his/her own health insurance or a European Health Insurance Card (EHIC), the NHS would be left with no one to invoice for the treatment.

As we've said before, EU free movement comes with benefits to Britain but it needs to be managed with extreme care and, in order for it not to lose all support from the public, the UK and other member states need some discretion in protecting their welfare and public health systems from abuse and/or being overburdened.

Given the UK public's attachment to the NHS, the EU's interference in this area could lead to powerful forces being unleashed.

First the Working Time rules, now this...

From PA:

NEW EU DIRECTIVE 'WILL FORCE RISE IN HOSPITAL RUNNING COSTS'

European plans to tighten controls on industrial pollution could impose massive extra running costs on about 70 NHS hospitals, it was claimed this afternoon.

The threat comes from the EU's Integrated Pollution Prevention and Control (IPPC) Directive, which is already under fire in the UK for risking higher farm prices by extending emissions restrictions to small farms.

Now it is claimed the plans extending the scope of an existing EU Directive will put a new price on running boilers.

The 12-year-old Directive currently targets heavy industries - power stations, ferrous metal production, extraction and mining, chemicals production and waste management.

But the plans are to widen the scope and establish a permit system to prevent and limit pollution from "large-scale industrial installations."

Conservative MEP Caroline Jackson said today that means hospital boilers will be caught in the scheme.

Even their reserve boilers will fall within the scope of the Directive, she claimed.

Ms Jackson said she now hoped her amendments to exclude hospitals from the rules will be approved in a first vote on the new plans in Strasbourg next week.

"Hospitals require a great deal of spare boiler capacity to cope with fluctuations in demand and this law does not take account of that," she said.

"Unless our amendment is passed, hospitals will be faced with the tough choice of paying the huge costs associated with this law, or shutting down boilers, which could have grave consequences for patient care. The commission should have spotted this problem when they drew up the new law: we are not the only country affected.

"The NHS has said that up to 70 hospitals across the UK could be affected, so it is crucial that we recognise their special circumstances."

Earlier this week Farming and Environment Minister Jane Kennedy held talks with MEPs urging them not to back parts of the proposals which would hit small farms and push up the price of chicken, turkey, tomatoes and cucumbers.

In agriculture, the Directive applies to pig and poultry producers who have 40,000 poultry, or 2,000 pigs or more than 750 sows.

But if the rules are extended, the National Farmers' Union says the changes would affect many seasonal and small family farms, triggering price rises for household staples such as chicken, turkey, tomatoes and cucumbers.

The impact on hospitals could be more serious: NHS hospitals keep substantial spare boiler capacity to cope with emergencies and in case of technical failures. The changes to the EU Directive would include assessing their boilers on the basis of their potential emissions, rather than their actual emissions, adding to the costs of obtaining the necessary permit.

The European Parliament vote next week is not the end of the issue: EU ministers will have a say, and MEPs are expected to vote again later in the year before a final agreement is hammered out by the end of 2010.