Abstract
EU Institutions have misconceived the relationship between the economics of free market individualism and the politics of social welfare in the EU. The consequence of this misconception is especially serious with respect to cross-border access to health care because of the risk of damaging public health ethics. Public health concerns collective policies to promote community health and often involves the distribution of rights and duties in society.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
- 3.
- 4.
- 5.
Walzer (1983), pp. 82–83.
- 6.
Esping-Andersen (1990).
- 7.
According to his ‘liberal’, ‘conservative’, and ‘social democratic’ models, with the Scandanavian countries being the most progressive.
- 8.
See the illuminating study of Baldwin (1993), p. 52.
- 9.
- 10.
Scharpf (2009), p. 25, discussing the attempt by Austria to increase the numbers of its own nationals qualifying as medical students and the onerous burden of proof demanded to demonstrate that the restriction on German students was necessary.
- 11.
ECJ, Case C-157/99 Smits and Peerbooms [2001] ECR 1-5473, para 72, emphasis added. The ECJ rejected this advice. It did not explain why.
- 12.
ECJ, Case C-444/05 Stamatelaki [2007] ECR 1-03185, para 40.
- 13.
OJ 2003 C 234/11.
- 14.
At para 1.1.1., emphasis added.
- 15.
At para 2.3.
- 16.
- 17.
See generally, Gaylin and Jennings (2003): ‘Although autonomy is not an ideal of selfishness or disorderly self-indulgence, it is always self-centred, self-expressive, and individualistic … Autonomy’s mood is always possessive. It speaks in the first person singular, rather than the first person plural.’ (at p. 72).
- 18.
See Health at a Glance (OECD Statistics, 2007).
- 19.
However, the potential disadvantage of Choose and Book is that it may favour some (better) hospitals at the expense of others (which are worse). As in any ‘market’, for those who are able to travel to the better provider, this is good. But this will divert income from the less good hospital and deplete its resources still further. For those who wish to be treated in the local hospital, this is not good. Rather than leaving the pressure for improvement to market forces, an alternative response would be to introduce a ‘turn-around team’ to improve the standards of the failing hospital.
- 20.
Tackling health inequalities: 10 years on (Department of Health, 2009). Promoting the same agenda, see Closing the gap in a generation (Commission on Social Determinants of Health, WHO, 2008).
- 21.
European Commission, 2008.
- 22.
Mayor (2009), p. 339:b5158.
- 23.
Court of Auditors, The EU’s Public Health Programme (2003-07): an effective way to improve health (Special Report no. 2/2009), para 22.
- 24.
The risk is the more severe in times of economic recession and public spending cuts. Discussing the extent to which public health strategy will have to respond to the changed financial environment, see Appleby et al. (2009).
- 25.
NHS Constitution, principle 2a (www.dh.gov.uk/en/Healthcare/NHSConstitution/index.htm).
- 26.
Direction to PCTs and NHS trusts concerning decisions about drugs and other treatments 2009.
- 27.
For the many cases in which the courts have encouraged fair and reasonable procedures in the UK, see Newdick (2005). For similar resistance to the ‘substantive’ approach to health care rights, see Daniels (2008), ‘… what entitlements follow from a right to have a broad set of health needs met? The answer is system relative and depends on resource allocation decisions that are made using a fair, deliberative process’ (145) ‘… the content of a right to health and health care … cannot be specified except through a fair process that takes specific features of a society into account’ (147).
- 28.
See for example, Together for Health—Strategic Approach for the EU, 2008-2013 (COM(2007) 630 final) and generally, Michalski (2006).
- 29.
See for example, ECJ, Case C-157/99 Geraets-Smits v. Stichting Ziekenfonds Vgz, Peerbooms v. Stichting Cz Groep Zorgverzekeringen [2001] ECR 1-5473. I have considered elsewhere the inadequacy of the threshold assumption that there is some objective notion that medical opinion is often supported ‘international medical science’, or that ‘undue delay’ is a useful criterion with which to distinguish different categories of deserving patient. See Newdick (2006a,b,c) p. 1645.
- 30.
As the English Court of Appeal said in R (Watts) v. Bedfordshire PCT [2004] 77 BMLR 26, ‘We consider that the court should proceed on the assumption that, if the NHS were required to pay the cost of some of its patients having treatment abroad at a time earlier than they would receive it in the United Kingdom, this would require additional resources. In theory, these could only be avoided if those who did not have treatment abroad received their treatment at a later time than they otherwise would or if the NHS ceased to provide some treatments that it currently does provide.’ (at para 105).
- 31.
See Jost (2003).
- 32.
QALYs measure quantity and quality by assessing (1) the duration during which the patient will enjoy benefit from a medicine and (2) the extent to which their condition will be alleviated. See Newdick (2005), pp. 26–37.
- 33.
Newdick (2006b), p. 205.
- 34.
At present, the cost of cross-border hospital care is limited. However, in Brazil, where substantive rights to health care have developed, in 2005 the State of Sao Paulo devoted some 30% of its budget to high cost drugs for treatment ordered by the courts through litigation, and the proportion is increasing. See Ferraz (2009). The supposition that substantive rights of access in Brazil would especially assist the poor and other less advantaged members of society to obtain health care is not supported by the evidence, see Afonso da Silva and Vargas Terrrazas (2008). Although the risk is also present with respect to procedural rights, see Epp (1998).
- 35.
- 36.
As the English Court of Appeal said in Watts v. Bedfordshire PCT [2004] 77 BMLR 26, para 31 the ECJ ‘put in place on the foundation of Article 49 [EC] a substantial edifice not immediately clear from its literal terms … There has been much judicial policy-making, and the policy goes well beyond the words of the Article.’ And compare the ECJ’s non-interventionist approach with respect to public education in ECJ, Case 263/86 Belgium v. Humbel and Edel [1988] ECR 5365 and ECJ, Case C-109/92 Wirth v. Landeshauptstadt Hannover [1993] ECR I-6447.
- 37.
ECJ, Case C-372/04 R(Watts) v. Bedford Primary Care Trust and Secretary of State [2006] ECR 1-4325, para 103-06.
- 38.
- 39.
With acknowledgement to West (2006), p. 221 at p. 253. Speaking of the failure of the US Constitution to promote positive freedoms: ‘This Dworkinian drenching of law with moralism can limit our moral sense and dull our capacity for criticism. Part of what the [US] Constitution might be faulted for is its understatement with respect to the affirmative moral duties of legislatures.’
- 40.
N v. United Kingdom (2008) (App no. 26565/05), para 3. Although the Preamble of the Charter of Fundamental Rights of the EU states that: ‘The Charter reaffirms … the rights … from the European Convention … and the case-law of the Court of Justice …’.
- 41.
See, for example, Osman v. United Kingdom (2000) EHRR 245 (ECHR) on the duty of the state to protect a person who was known to be at risk of attack from another person.
- 42.
See for example, Airey v.Ireland (1981) 2 EHRR 592 (ECHR).
- 43.
Alexy (2004).
- 44.
See Fredman (2004), Chapter 4 and for the risks and benefits of substantive judicial intervention in the Indian courts, Chapter 5. The intensity of scrutiny may vary. See Newdick (2005) and in the South African Constitutional Court, see Soobramoney v. Minister of Health, Kaw-Zulu-Natal 1998 (1) SA 765 (CC) and Minister of Health v. Treatment Action Campaign (No. 2) (2002) 5 SA 721.
- 45.
Jennings (2001), pp. 88, 94.
- 46.
Dworkin (2000), p. 317
- 47.
- 48.
Jennings (2009), p. 37.
- 49.
Hirschman (1970), p. 104.
- 50.
- 51.
van Doorslaer et al. (2004), pp. 629, 645–646.
- 52.
See generally, Held (2006), ‘instead of abandoning culture to the dictates of the market place, we should make it possible for culture to develop in ways best able to enlighten and enrich human life’ (at p. 18).
- 53.
See n. 21 supra.
- 54.
Greer (2009), p. 3.
- 55.
Proposal for a Directive of the European Parliament and of the Council on the Application of Patients’ Rights in Cross-border Healthcare (COM (2008) 414), amendment 66; available at: http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=197193.
- 56.
See Busse et al. (2008), pp. S1–S8.
- 57.
Drummond et al. (2007), p. 36.
- 58.
Hollis (2006), supporting a formula for extra cost to pay for innovative treatments based on average costs of research and development.
- 59.
Rare Diseases: Europe’s Challenges (COM(2008) 679 final).
- 60.
See n. 53 supra.
- 61.
- 62.
Hughes et al. (2005), p. 829, questioning whether the ‘rule of rescue’ should be especially responsive to those with orphan conditions.
- 63.
See n. 53 supra, amendment 76. Like the ECJ, the draft Directive excludes non-hospital care from any cross-border restrictions.
- 64.
Sauter (2009), pp. 109, 125. The UK government also believes that the European Commission’s current proposal is wrong and would mean having to wait until healthcare systems were already in difficulty before prior authorisation for patients was required (UK’s Responses to the Consultation, para 18).
- 65.
Somek (2007), pp. 787, 797.
- 66.
- 67.
- 68.
Ferrara (2005), p. 45.
- 69.
Bellamy (2009), p. 12.
- 70.
Bellamy (2009), p. 27.
- 71.
- 72.
Daniels (2008), Chapter 4.
- 73.
Of which I am a member. See: www.berkshire.nhs.uk/priorities/_policies/SC-Ethical-framework_OnlinePDF.pdf.
- 74.
Daniels and Sabin (1997).
- 75.
Article 8(5).
- 76.
Stone Sweet (2000).
- 77.
For a warning against such an approach, see Bellamy (2008), p. 9: ‘If there are reasonable disagreements about justice and its implications, then it becomes implausible to regard constitutional courts as basing their decisions on the ‘correct’ view of what democratic justice demands in particular circumstances … They restrict access and unduly narrow the range of arguments and remedies that may be considered, and are neither accountable nor responsive to citizens …’ (at p. 12).
- 78.
National courts and the ECJ continue to dispute the point, see ECJ, Case 6/64 Falmino Costa v. ENEL [1964] ECR 585.
- 79.
Scharpf (2009), p. 21, discussing the Austrian universities case, ECJ, Case C-147/03 Commission v. Austria [2005] ECR I-5969 in which Austrian authorities were concerned to increase the numbers of Austrians qualifying as doctors. It was forbidden from differentiating between Austrian and German university applicants, even though many German students returned home after graduating in Austria.
- 80.
See Article 168(5) TFEU (ex Article 152(5) EC Treaty), ‘Community action … shall fully respect the responsibility of the Members States for the organisation and delivery of health services and medical care.’ The ECJ has never explained how this provision affects its jurisdiction in health care cases.
- 81.
BVerfG, 2 BvE 2/08, 30 June 2009, para 226, www.bverfg.de/entscheidungen/es20090630_2bve000208en.html. See generally, Thym (2009), p. 1795 and Doukas (2009), p. 866.
- 82.
Ibid., para 249. The GFCC identified five areas of competence which do not permit extensive transfer of sovereign power: criminal law, monopoly on the use of force abroad, fundamental fiscal decisions, the guarantee of a just social order and the status of religious communities (see para 252).
- 83.
On various forms of ‘constitutional dialogue’ see the helpful discussion by Hickman (2005), p. 306.
- 84.
For a distinctly EU solution to this problem, see Poiares Maduro (2006) (a former Advocate General of the ECJ): ‘The recognition of a set of social rights accorded to all European citizens … can no longer be exclusive of those which can more easily make use of the free movement provisions. Otherwise, many Europeans will feel like strangers with regard to European citizenship. But this would require European social rights … founded on a new form of political discourse on social values at the level of the European Union.’ (at p. 135). Again, this ignores both the national, historical and cultural foundations of social rights, and the implications for health care ‘inequalities’ noted in n. 51 supra.
References
Afonso da Silva V, Vargas Terrazas F (2008) Claiming the right to health in Brazilian courts: the exclusion of the already excluded. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133620
Alexy R (2004) A theory of constitutional rights. OUP, Oxford Chapters 2 and 9
Appleby J et al (2009) How cold will it be?—Prospects for funding: 2011–17. The Kings Fund, London
Baldwin P (1993) The politics of social solidarity–class bases of the European welfare state 1875–1975. CUP, Cambridge
Bayer R et al (2007) Public health ethics–policy and practice. OUP, Oxford
Bellamy R (2008) The democratic constitution: why Europeans should avoid American style constitutional judicial review. European Political Science 7
Bellamy R (2009) The liberty of the post-moderns?—Market and civic freedom with the EU. LSE Europe in Question Discussion Paper Series No. 01
Busse R et al (2008) Variability in the healthcare treatment costs among nine EU countries—results from the Healthcare Basket Project. Health Econ 17
Coggon J (2007) Harmful rights-doing?—The perceived problem of liberal paradigms and public health. J Med Ethics 34
Dagger R (1998) Civic virtues–rights, citizenship and Republican liberalism. OUP, Oxford
Daniels N (2008) Just health—meeting health needs fairly. Cambridge UP, Cambridge
Daniels N, Sabin J (1997) Setting limits fairly. OUP, Oxford
Dawson A, Verweij M (2007a) The meaning of ‘public’ in public health. In: Dawson A, Verweij M (eds) Ethics, prevention and public health. OUP, Oxford
Dawson A, Verweij M (2007b) Public health: ethical issues. Nuffield Council on Bioethics, London
Doukas D (2009) The verdict of the German Federal Constitutional Court on the Lisbon Treaty. ELRev 34:866
Drummond M et al (2007) Assessing the economic challenges posed by orphan drugs. Int J Technol Assess Health Care 23
Dworkin R (2000) Sovereign virtue–the theory and practice of autonomy. Harvard UP, Cambridge
Epp C (1998) The Rights Revolution: lawyers, activists and Supreme Courts in comparative perspective. Chicago University, Chicago
Esping-Andersen G (1990) The three worlds of welfare capitalism. Polity Press, Cambridge
Ferrara M (2005) The boundaries of social welfare. OUP, Oxford
Ferraz O (2009) Between usurpation and abdication? The right to health in the courts of Brazil and South Africa. 20 Aug. Available at SSRN. http://ssrn.com/abstract=1458299), text accompanying notes 46–48
Fredman S (2004) Human rights transformed. OUP, Oxford Chapter 4
Gaylin W, Jennings B (2003) The perversion of autonomy, 2nd edn. Georgetown University Press, Georgetown
Gostin L (2004) Health of the people—the highest law? J Law Med Ethics 32
Greer S (2009) The politics of European Union health policies. McGraw Hill, Open University Press, Maidenhead
Held V (2006) The ethics of care–personal, political, and global. OUP, Oxford
Herring J (2007) Death by indifference. Mencap, London, www.oldt.nhs.uk/documents/Deathbyindifference_OnlinePDF.pdf
Herring J (2009) Older people in law and society. OUP, Oxford
Hervey T (2000) Social solidarity: a buttress against internal market law? In: Shaw J (ed) Social law and policy in an evolving European Union. Hart Publishing, Oxford
Hickman T (2005) Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998. Public Law 306
Hirschman A (1970) Exit, voice and loyalty. Harvard, Cambridge
Hollis A (2006) Drugs for rare diseases: paying for innovation. In: Beach R, Chayjowski R, Short S, St Claire F, Sweetnam A (eds) Health services restructuring in Canada: new evidence and new directions. John Deutsch Institute, Kingston
Hope T (2001) Rationing and life-saving treatments: should identifiable patients have higher priority? J Medical Ethics 27
Hughes D et al (2005) Drugs for exceptionally rare disease: do they deserve special status funding? Q J Med 98. http://qjmed.oxfordjournals.org/cgi/content/full/98/11/829
Jennings B (2001) From the urban to the civic: the moral possibilities of the city. J Urban Health 78
Jennings B (2009) Public health and civic republicanism. In: Dawson A, Verweij M (eds) Ethics prevention and public health. OUP, Oxford
Jost T (2003) Disentitlement–the threats facing our public health care progams and a rights-based response. OUP, Oxford
Mayor S (2009) Cancer mortality is falling across Europe, but some countries have twice the death rate of others. BMJ 339
McCabe C et al (2005) Orphan drugs and the NHS: should we value rarity? BMJ 331
Michalski K (2006) What holds Europe together. CEU Press, Budapest
Montgomery J (2006) Law and the demoralisation of medicine. Legal Studies 26
Muller J-W (2007) Constitutional patriotism. Princeton University Press, Princeton Chapters 1, 2
Newdick C (2006a) Citizenship, free movement and health care: cementing individual rights by corroding social solidarity. CMLRev 43
Newdick C (2005) Who should we treat?—rights rationing and resources in the NHS. OUP, Oxford
Newdick C (2006b) Exceptional circumstances—access to low-priority treatment after the Herceptin case. Clinical Ethics 1
Newdick C (2006c) The positive side of health care rights. In: McLean SAM (ed) First do no harm–law, ethics and healthcare. Ashgate, Farnham
Newdick C (2008) The European Court of Justice, trans-national health care and social citizenship—accidental death of a concept. Wisconsin Int Law J 26
Poiares Maduro M (2006) European constitutionalism and three models of social Europe. In: Hesselink M (ed) The politics of a European Civil Code. Kluwer, The Hague
Sabel C, Simon W (2004) Destabilisation rights: how public law litigation succeeds. Harv LR 117:1015
Sandell M (1982) Liberalism and the limits of justice. CUP, Cambridge
Sandell M (2009) Justice–what’s the right thing to do?. Allen Lane, London
Sauter W (2009) The proposed patients’ rights directive. LIEI 36
Scharpf F (2009) Legitimacy in the multilevel European polity. MPIfG Working Paper, no. 1
Sen A (2009) The idea of justice. Allen Lane, London
Somek A (2007) Solidarity decomposed. ELRev 32
Somek A (2008a) Citizenship–as essay on the authority of the European Union. OUP, Oxford
Somek A (2008b) Individualism—an essay on the authority of the European Union. OUP, Oxford
Stone Sweet A (2000) Governing with judges—constitutional politics in Europe. OUP, Oxford
Thym D (2009) In the name of sovereign statehood: a critical introduction to the Lisbon judgement of the German Constitutional Court. CMLR 46
Tushnet M (2008) Weak courts, strong rights. Princeton University Press, Princeton. Chapter 8
Van Doorslaer E et al (2004) Explaining income-related inequalities in doctor utilization in Europe. Health Economics 13
Walzer M (1983) Spheres of justice—a defense of pluralism and equality. Basic Books, New York
West R (2006) Unenumerated duties. U Pennsylvania J Constitutional Law
Acknowledgments
With the usual disclaimer, I thank Mrs Danielle De Costa Leite Borges, doctoral student at the EU Institute, Florence, for helpful discussions during the preparation of this article.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2011 T.M.C.ASSER PRESS and the author
About this chapter
Cite this chapter
Newdick, C. (2011). Disrupting the Community—Saving Public Health Ethics from the EU Internal Market. In: van de Gronden, J., Szyszczak, E., Neergaard, U., Krajewski, M. (eds) Health Care and EU Law. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-728-9_9
Download citation
DOI: https://doi.org/10.1007/978-90-6704-728-9_9
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-90-6704-727-2
Online ISBN: 978-90-6704-728-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
