EU law gives patients rights and protections. For instance, UK citizens have legal rights to emergency health care across the bloc. EU law sets minimum standards for working time rules, which stop medical professionals from working without proper rest periods. The EU also regulates the safety of all pharmaceuticals marketed in the EU, by enforcing stringent pre-market authorisation rules and new health technologies must respect EU clinical trials laws. These protect patient safety through enforcing good clinical practice. Our clinicians and biomedical researchers have access to EU networks of collaborators, and EU datasets, tissue banks and the like. They can also access significant amounts of EU research funding.
And, in the public health domain, EU rules on wide-ranging matters – road infrastructure and transport safety, food and product safety, air and water quality, workplace health and safety and tobacco regulation – have had tangible effects on EU population health.
All of these things are good for health, and good for the financing of the NHS, in that they make patients safer, or improve population health, meaning less demand on the NHS.
And yet, we hear sweeping, worrying claims, about how Brexit is ‘necessary to protect the NHS from TTIP’, or the NHS is currently in danger of complete collapse, because of EU membership.
Nothing in EU law directly affects the funding given to the NHS, or its structure. Nothing in EU law requires ‘privatisation’ of the NHS. That is a political decision for national governments, under the legal division of competences.
But some EU rules affect the way in which the NHS may be run. We must comply with procurement rules, and EU competition law designed to ensure a fair playing field for ‘economic actors’. If the EU agrees TTIP, we will be bound by its terms, but that won’t necessarily be bad for the NHS: it’s up to our government.
EU rules are interpreted in ways which respect national decisions about how national health systems are organised and the values they express. In an analysis of scores of decisions of courts and competition authorities, across all the EU’s member states, our Cambridge University Press book European Union Health Law found that the closer a health institution is to the ‘heart’ of a national health system, the more readily national preferences are respected through the way that EU rules are interpreted. Hospitals, laboratories, blood and tissue centres all enjoy a protected position in EU law. Funding arrangements do so too.
For example, contrary to some scare-mongering claims, EU law actually protects the financial security of the NHS from unstructured patient movements around Europe, by allowing governments to defend NHS financial arrangements from unexpected costs of travelling patients trying to short-circuit waiting lists or access unproven treatments.
Our research shows that sweeping generalisations about EU health law are not defensible, once you look at the legal detail.
All legal systems have to balance the competing claims within a national health system. Where decisions are made at different levels (local, regional, national), the law determines where those decisions are made. The EU’s legal system, interacting with national legal systems, is no different. There is always room for improvement in law – and in EU law. But on balance and overall, the EU is a good thing for our health.
• Tamara Hervey will be speaking at the CIPFA event How does the EU affect our health and wellbeing? on Thursday 28 April 6pm–7.30pm. Register for the event here. This is one of a series of events being hosted by CIPFA with the think-tank CoVi ahead of June’s referendum looking at the impact of the EU on public services. For more information and to register for the events, please visit: http://covi.org.uk/events/
