Rights of Dental Patients EU
Rights of Dental Patients EU
Rights of Dental Patients EU
STOMATOLOGY
VOLUME 30 Supplement 1 November 2012
IDEALS 9th International Congress on Dental Law and Ethics.
Leuven, Belgium, August,22-24, 2012
5
Rights of Dental Patients in the EU - A Legal
Assessment
Anne-Marie Van den Bossche
1
, Paula Ploscar
1
1
Faculty of law, University of Antwerp, Belgium
Corresponding author: Paula.Ploscar@ua.ac.be
The authors declare that they have no conflict of interest.
An oral presentation of this paper was delivered at the International Dental Ethics and Law Society (IDEALS) Congress
2012 in Leuven.
ABSTRACT
This contribution presents the legal framework for intra-European mobility of dental patients. After
presenting the EU competences in respect of healthcare and a brief look into the various routes of
patient mobility, the article sets out the rules for access to dental care, treatment abroad and
reimbursement through social security. In addition, we focus on the impact of European Union (EU)
law upon national systems in respect of professional insurance, complaints procedures and
information mechanisms. In conclusion, we reflect on the development in EU law of an independent
set of rights to cross-border dental care and its consequences for financing and reimbursement of
care, as well as for national practices in respect of professional liability and insurance.
KEYWORDS: Dental patients; dental tourism; EU law; social security.
J FOS. November 2012, Vol.30, Sup.No.1 Pag 4-11.
ISSN :2219-6749
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
6
1. INTRODUCTION TO DENTAL
TOURISM IN THE EU
Dental tourism - a novel phenomenon, little
investigated and under conceptualized - is
mostly held to refer to the deliberate
linkage of tourism abroad with non-urgent
dental care, often cosmetic dental surgery.
1
European integration has, however, also
led to other categories of patients who
might seek dental care abroad who do not
necessarily fall under the above definition
of dental tourists. Nationals of one EU
Member State residing and insured in
another one, might find it cheaper, safer or
more comforting to return to their home
state for (general) dental care. Another
situation governed by European Union
(EU) law is dental care that becomes
necessary when the insured person happens
to be in a Member State other than the one
of affiliation.
The practice of travelling abroad for
medical care is the by-product of the
increasing liberalization and
commodification
2
of healthcare coupled
with globalization, or regionalization.
Whereas travelling abroad for medical care
or wellbeing is by no means novel, patients
exhibit a form of reverse globalization:
people often travel from developed to less
developed countries due to costs and
waiting lists. Concerns about the quality
and safety of care arise in such contexts.
1,3,4
In the EU, the financing of medical care
abroad is the highest concern voiced to
date.
This article presents the legal framework
under which patients receive dental care in
a EU Member State other than the one
where they are insured. We will not limit
ourselves to dental tourists in the strict
sense of the word. We extend our legal
analysis to EU migrants returning home for
dental care, and those who, do not plan to,
but are in need of dental care while in
another Member State. The paper is
structured in four chapters. Chapter two
introduces the legal framework for
patients mobility in the EU. Chapter three
discusses the rules pertaining to patients
rights, including access to dental care, fees
and reimbursement under national social
security schemes. Chapter four exposes the
effects of EU law upon national
administrations in respect of professional
insurance and liability, and complaints
procedures. Chapter five concludes the
paper.
2. EUROPE: SHORT HISTORY OF
CROSS-BORDER MEDICAL CARE
The EU can only undertake supporting,
coordinating and complementary action in
order to protect and improve human health
(Article 6 Treaty on the Functioning of the
EU, hereinafter TFEU).
5
As far as public
health is concerned, the Union shall,
encourage cooperation between the
Member States [] and, if necessary, lend
support to their action. It shall in particular
encourage cooperation between the
Member States to improve the
complementary nature of their health
services in cross-border areas (Article
168(2) TFEU). The Member States remain
responsible for management of health
services and medical care and the
allocation of the resources assigned to
them (Article 168(7) TFEU).
Notwithstanding this, at first sight, limited
room for EU action, Article 168(1) TFEU
forcefully calls for a high level of human
health protection in the definition and
implementation of all Union policies and
activities (emphasis added).
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
7
EU law has regulated cross-border medical
care since 1958 through the mechanism of
social security coordination. This system,
currently contained in Regulation
883/2004, covers almost all EU citizens: all
nationals of the 27 Member States, who are
or have been subject, whether compulsory
or on an optional basis, to a general or
special social security scheme even if only
in respect of one single risk.
6
Member
States remain free to define the basket of
healthcare to which citizens are entitled
and the mechanisms used to finance and
deliver that healthcare. In principle,
medical care remains territory-bounded, i.e.
should be provided in the state of
insurance. The Regulation envisages two
situations of cross-border care and
reimbursement: when medical care
becomes necessary during a stay in another
Member State, and when the patient travels
to another Member State in order to receive
treatment there. The latter situation
required prior authorisation from the
institutions of the state of insurance.
Since the end of the 90s, a line of cases on
the basis of the fundamental freedom of
movement of services (Article 56 TFEU)
has provided a route of patient mobility
parallel to that set up by Regulation
883/2004. The consequence of qualifying
medical care as a service for the purpose of
the Treaty was that patients have the right
to use services from other Member States
without being hindered by restrictive
measures imposed by their country or by
discriminatory behaviour on the part of
public authorities or private operators.
7
The European Court of J ustice (ECJ ) has
established that healthcare is a service,
irrespective of: the form of organization,
operation and financing of the health
system;
8
the fact that remuneration is not
necessarily paid by the one receiving the
service;
9
whether it is intra- or extra-
mural;
10
the fact that reimbursement of the
costs are sought after through social
security.
11
In the case of healthcare services
in general, restrictions often concern the
circumstances in which a Member State
may make (on the basis of Regulation
883/2004) reimbursement of the costs
subject to prior authorisation. The 'special
nature' of medical services does, however,
not remove medical services from the field
of application of the Treaty.
12
Hence,
restrictions on dental patients freedom of
services in a Member State other than the
one of insurance cannot be maintained,
unless they are justified and proportionate.
In 2011 the ECJ -case law on freedom of
movement for patients was codified in
Directive 2011/24 (Cross-Border Patients
Rights Directive), which adds new
elements in respect of information
mechanisms and transparency. Following
the case law, the Cross-Border Patients
Rights Directive applies irrespective of the
form of organization, delivery and
financing method of the national health
systems.
13
It is addressed to the Member
States who have to transpose it into
national law by October 2013. After that
date (deviant, c.q. [too] restrictive) national
regulation can still be challenged by the
EU Commission or by individual patients
seeking to enforce their European right to
cross-border healthcare.
3. CROSS-BORDER DENTAL CARE
3.1. Dental care becomes necessary
during stay abroad
The first situation we will deal with is
when a person, insured under the social
security scheme of one EU Member State
needs
14
dental care during a stay, e.g. as a
tourist, in another Member State.
15
As the
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
8
Patients Rights Directive is without
prejudice to Regulation 883/2004, we are
confronted with the situation that the
legislation of the state of stay is applicable
in respect of the treatment, while for the
purpose of reimbursement the applicable
legislation is that of the state of affiliation.
Temporary EU residents and visitors
receive the same treatment at the same
costs as a person insured under the
legislation of the state of stay. Therefore,
one can receive treatment to which one
may not be entitled to according to the
legislation of the state of affiliation. Upon
return the patient may ask for
reimbursement of the costs. If the treatment
received abroad does not fall under the
benefits to which the patient was entitled to
in his/her state of affiliation, the cost of
care will not be reimbursed.
16
Otherwise,
the costs will be reimbursed according to
the rules set out in sub-section 3.3.
3.2. EU migrants and dental tourists
In the second scenario, a person insured
under the social security legislation of one
Member State travels to another one to
receive dental care. We imagine EU
migrants travelling to their home state or
persons who are genuine dental tourists as
defined in the introduction.
3.2.1. Prior authorization required
The first question we need to address from
a legal point of view is whether the
treatment sought can be subjected to the
requirement of prior authorization. In light
of the limited situations where prior
authorization is permitted, we argue that
dental patients are most likely not subject
to such a requirement. However, the
assessment might be different for hospital
dental treatment. A system of prior
authorization is allowed only if a) the
healthcare is subjected to planning
requirements and involving overnight
hospital accommodation or cost-intensive
equipment; b) the treatment involves health
risks for the patient and the population; or
c) the healthcare provider gives reason for
serious concern in respect of the quality
and safety of the care. Authorisation for
cross-border care can, on similar grounds,
be refused. In addition, if dental care is
subject to prior authorization, this may be
rejected on grounds of the possibility of
receiving the care in the state of affiliation
within a medically justified period of
time.
17
Assuming the dental care sought does
require prior authorization, and that the
conditions for prior authorization are
satisfied, this is awarded on the basis of
Regulation 883/2004, unless the patient
requests otherwise.
18
When authorization is
granted on the basis of Regulation
883/2004,
19
the State of stay is to provide
the dental care as if the patient was insured
under its own legislation. By means of
institutional arrangements between the
Member States, there is full reimbursement
for the cost of treatment.
20
The far-reaching implications of the prior
authorization are fully revealed by the
Keller
21
case in which a German national
resident in Spain and insured therein
received authorization to be treated of a
malignant tumour in Germany. Following
the medical examinations in Germany, the
doctors responsible for the case decided
that it was vital that Ms. Keller undergoes
an immediate surgical operation, which
could only be performed in a private clinic
in Switzerland. She was transferred to
Switzerland where she was operated and
then underwent radiotherapy. The
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
9
institution of the state of stay must treat the
authorized person as if she would be
insured under its legislation, therefore,
without requiring the approval of the
institution of the state of affiliation, the
institution of the state of stay is obliged to
provide the treatment corresponding to the
medical condition. Once the doctors in the
state of stay have decided for the patient to
be transferred to a third country, the costs
of the treatment incurred there must be
borne by the institution of the state of stay,
under the legislation it administers and
under the same conditions as for persons
insured under that legislation. However, if
the treatment provided in the third state is
among the benefits of the state of
affiliation, then the institution of the state
of affiliation will assume the costs by
reimbursing the institution of the state of
stay.
3.2.2. No prior authorization required
In most cases patients seeking dental care
abroad will not require prior authorization.
Under these circumstances, treatment shall
be provided in accordance with the
legislation of the state of treatment, its
standards and guidelines on quality and
safety, while, however, having to comply
with Union legislation in respect of safety
standards.
22
The state of treatment is under
the obligation to treat all patients equitably
on the basis of their healthcare needs rather
than on the basis of their Member State of
affiliation.
23
Patients from other Member
States can, therefore, not be discriminated
on grounds of nationality, including in
respect of scales of fees. If care providers
under national law set their own prices,
these prices must thus apply irrespective of
the nationality of the care receivers.
24
3.3. Reimbursement of costs of dental care
abroad
When prior authorization is not/cannot be
granted under Regulation 883/2004, the
reimbursement of dental costs follows the
rules below. If the dental care received
abroad does not fall under the benefits to
which the insured person is entitled to in
the state of affiliation, the costs are born on
a private basis. EU law will then not
provide a legal basis for claims of
reimbursement.
The general principle is that dental care
received in another Member State must be
reimbursed only if the patient would have
been entitled to it in the state of affiliation.
The EU-prescribed level of reimbursement
is limited to the one that would have been
assumed had the treatment been received in
the state of affiliation. Member States may,
however, unilaterally decide to provide for
the more favourable reimbursement of the
full costs even if that would exceed the
costs in the state of affiliation. Also, they
are free to reimburse other costs, such as
travel or accommodation, in accordance
with national legislation, which should in
any case not discriminate between national
and non-national EU healthcare providers.
4. INFORMATION, COMPLAINTS
PROCEDURES, LIABILITY AND
PROFESSIONAL INSURANCE
The state of treatment bears responsibilities
in respect of information, ensuring the
existence of complaints procedures,
systems of professional liability insurance,
protection of personal data, and the
provision of medical records.
25
The duty of
information includes information about:
national standards and guidelines of quality
and safety; relevant information that
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
10
enables patients to make informed choices,
such as treatment options, availability,
quality and safety of healthcare; invoices
and information on prices; and
authorisation or registration status,
insurance cover or other means of personal
or collective protection with regard to
professional liability.
Member States must set up national contact
points for cross-border health care, to
consult with patients organizations,
healthcare providers and insurance alike. In
addition to the information mentioned
above, contact points should be able to
provide information regarding healthcare
providers, including information regarding
providers restrictions on their practice, as
well as information on patients rights,
complaints procedures and mechanisms for
seeking remedies, according to the
legislation of that Member State. In
addition they must make available
information regarding the legal and
administrative options available to settle
disputes, including in the event of harm
arising from cross-border healthcare.
Moreover, all this information should be
easily accessible, including to people with
disabilities, and available in electronic
form.
26
The use of language in
communications with the patient is not
affected, but Member States may use
languages other than their official one(s).
The state of affiliation is under the
obligation to provide patients with
information regarding cross-border
healthcare, to offer medical follow-up, if
necessary, and finally to ensure that
patients have access to their medical
records.
27
Whereas some Member States might
already have in place such mechanisms, it
is expected that the obligations imposed by
the Directive will lead to significant
transformations of the national health
systems.
28
The benefits of these changes
will inevitably spill over to national
patients, and to those who purchase dental
care through private insurance.
5. CONCLUSIONS
Within the European Union, dental
patients can always travel to other Member
States to have care provided to them.
Whether that care will be reimbursed is
dependent on the type and/or urgency of
dental care looked for/provided elsewhere
in the EU. Presently most non-urgent
dental care is not commonly covered by
national statutory insurance, therefore EU
citizens will often not be able to avail
themselves successfully of the
reimbursement rights conferred by EU
law. In that respect they will only differ
from EU citizens looking for dental care
outside the Union in as far as they must
receive equal treatment with those insured
in the state of treatment.
By the end of 2013 EU Member States
should have introduced all changes in
respect of national contact points,
complaints procedures, systems of
professional liability insurance, protection
of data and continuity of care. Otherwise
we can expect a new series of cases in
front of the Court of J ustice of the EU
seeking to redress the problems of national
implementation and give full effect to the
right to cross-border healthcare.
ACKNOWLEDGEMENTS
This research has been partly conducted in
the framework of a project supported by
the Research Foundation Flanders. Paula
Rights of Dental Patients in the EU - A Legal Assessment. Van den Bossche et al.
11
Ploscar would like to acknowledge the
kind academic supervision provided by
Prof. Dr. Herwig Verschueren.
REFERENCES
1. Connell J. Contemporary medical tourism: Conceptualization, culture and commodification. Tourism Management 2012;
1-13.
2. Commodification is defined in the Collins English Dictionary as the treatment of something as a commodity . Definition
available from: http://www.collinsdictionary.com/dictionary/english/commodification?showCookiePolicy=true [cited 10
October 2012].
3. Turner L. Cross-border dental care: dental tourism and patient mobility. British Dental Journal 2008; 204: 553-554.
Available from: http://www.nature.com/bdj/journal/v204/n10/abs/sj.bdj.2008.403.html [cited 28 August 2012 ].
4. OConnell B. Have teeth will travel: dental tourism informing the public. Journal of the Irish Dental Association 2007;
53: 180-182. Available from: http://www.ncbi.nlm.nih.gov/pubmed/18201021 [cited 28 August 2012 ].
5. Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C83/47.
6. Case 182/78 Pierik II [1979] ECR 1977, paras. 4 and 7. Joined Cases 82/86 and 193/96 Laborero and Sabatto [1987]
ECR 3401, para. 17. Case C-85/96 Martnez Sala [1988] ECR I-2691, para. 36. Regulation (EC) No 883/2004 of the
European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ [2004] L166/1.
Implemented by Regulation (EC) no 987/2009 of the European Parliament and of the Council of 16 September 2009 laying
down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems OJ [2009]
L284/1.Third country nationals are covered by Regulation (EU) No 1231/2010 of the European Parliament and of the
Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of
third countries who are not already covered by these Regulations solely on the ground of their nationality OJ [2010] L344/1.
7. Proposal for a Directive of the European Parliament and of the Council on services in the internal market COM(2004) 2
final/3, 2 June 2004, p. 4.
8. Case C-372/04 Watts [2006] ECR I-4325, para. 88 and 91.
9. Case 352/85 Bond van Adverteerders [1988] ECR 2085, para. 16. Joined Cases C-51/96 and C-191/97 Delige [2000]
ECR I-2549, para. 56. Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, para. 57.
10. Case C-444/05 Stamatelaki [2007] ECR I-3185, para. 19, with reference to Case C-372/04 Watts [2006] ECR I-4325,
para. 86 and the case-law cited there. Also at stake in Case C-159/90 Society for the Protection of Unborn Children [1991]
I-4685, para. 18 and Case C-158/96 Kohll [1998] ECR I-1931, para. 29.
11. Case C-444/05 Stamatelaki [2007] ECR I-3185, para. 21, with reference to Case C-385/99 Mller-Faur and van Riet
[2003] ECR I-4509, para. 103.
12. Case 279/80 Webb [1981] ECR 3305.
13. Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients
rights in cross-border healthcare OJ [2011] L88/45, Preamble (11).
14. The Court has ruled in case C-326/00 Ioannidis [2003] ECR I-1703 that the benefits covered by this provision cannot be
limited to treatment which becomes necessary because of a sudden illness during the stay abroad; treatment for chronic or
pre-existing pathology is equally covered.
15. Art. 19 of Regulation 883/2004.
16. Art. 7 (1) of Directive 2011/24.
17. Art. 8 of Directive 2011/24.
18. Art. 8 (3)of Directive 2011/24.
19. The authorising documentation for planned health treatment abroad is since 2010 the S2 form. Decision No. S2 of 12
June 2009 concerning the technical specifications of the European Health Insurance Card [2010] OJ C106/26.
20. Art. 35 of Regulation 883/2004.
21. Case C-145/03 Keller [2005] ECR I-2529.
22. Art. 4 (1) of Directive 2011/24.
23. Directive 2011/24, Preamble (21).
24. Art. 4 (4) of Directive 2011/24.
25. Art. 4 (2) of Directive 2011/24.
26. Art. 6 of Directive 2011/24.
27. Art. 5 of Directive 2011/24.
28. Sauter W. Harmonization in healthcare: the EU Patients Rights Directive. In: Cantillon B, Verschueren H, Ploscar P
(eds.). Social Inclusion and Social Protection in the EU: Interactions between law and policy. Antwerp. Intersentia; 2012.
p105-130.
*****
Copyright of Journal of Forensic Odonto-Stomatology is the property of Journal of Forensic Odonto-
Stomatology, International Organisation of Forensic Odonto-Stomatology and its content may not be copied or
emailed to multiple sites or posted to a listserv without the copyright holder's express written permission.
However, users may print, download, or email articles for individual use.