Patient's rights in cross border health care - The moving patient and matters of national ethical sensitivity
23 important questions on Patient's rights in cross border health care - The moving patient and matters of national ethical sensitivity
Why do patients move because of national ethical sensitivity?
What are the most significant differences in approach between the EU MS in regard to ethical sensitive treatments?
- strict in Malta & Ireland
- liberal in Belgium & Netherlands
End of life decisions
- liberal in BE, NL = decriminalized
Right to reproduce
Why should the EU have influence on the acces of ethical controversial treatment?
- death tourism
- reproductive tourism
- abortion tourism
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Is euthanasia allowed in Belgium? On which basis?
- 28 may 2002
What is, according to the Act, euthanasia?
- this person must be a physician
- this physician does not commit a criminal offense if legal norms and procedures have been followed
What are the substantive requirements for euthanasia?
- Patient must be an adult
- Request must be voluntary, well-considered, repeated and expressed w/o any external pressure
- Constant and unbearable physical of psychological suffering
- this must be the result of a serious and incurable disorder caused by an accident or illness
What are the procedural requirements for euthanasia?
- Consultation of independent physician
- Discuss with nursing team and relatives
- If the physician judges that the patient is not expected to die in the near future: 2nd opinion + 1 mont wait
- Notification of the FCEC (Federal Control and Evaluation Committee on Euthanasia)
What are the additional requirements for euthanasia for competent minors?
- Patient is expected to die in the near future
- unbearable physical suffering
- capacity of discernement
- approval of parents
- psychological support
Can euthanasia by directed in advance?
- for adults in state of irreversible unconsciousness
- in writing
- valid for 5 yr
Does euthanasia fall within the ambit of EU-law?
- art. 56: provision of medical activities can be classified as activities of the professions
- CJEU did not clarify what constitutes a medical activity
- Grogan case
Does euthanasia fall within the ambit of directive 2011/24 on cross-border healthcare?
- art. 3 directive: health care is about restoring, assessing and painting the health of a patient
- euthanasia doesn't fall within that definition of health care
- the directive does not extent to euthanasia
But..
- euthanaticum = medicinal product
- importance of national qualification?
Does euthanasia fall within the ambit of regulation 883/2004?
- if it is reimbursed, it falls within the ambit
- it is up to the MS to decide whether they'll reimburse
Home MS control for planned healthcare abroad
- they may require PA
- PA may not be refused art. 20.2
PA rule to refuse reimbursement of euthanasia is justified on the ground that it is prohibited in the home MS
Do MS have the autonomy to restrict the in and outflow of EU-citizens?
- suitability, necessity and proportionality of restriction
- in relation to the aim of
- treaty: public policy, security, health
- CJEU: overriding reasons in general interest
There is a margin of national discretion:
- permits to solve conflicts between free movement and public interest
- restrictions are only proportionate when there is "a genuine and suffienctly serious threat affecting one of fundamental interests of society"
Which 4 barriers could MS introduce for their citizens in their access to euthanasia abroad?
- Criminal sanctions returning relative/physician
- Prohibition to travel = restraining order
- Refusal of reimbursement
- Limit to obtaining information
Are criminal sanctions an acceptable barrier?
- refusal to export sperm of dead husband
- UK Court of appeal: it's not a justified restriction
- the ambit of EU rules is broad and extends to access abroad
- here not about the legality of the removal, only about the export!
Is the prohibition to travel an acceptable barrier?
X-case (Attorney General v X 1992)
- 17 year old girl had been a victim of rape and became pregnant
- Criminal procedure against rapist
- family planned to travel to UK for abortion
- The Attorney General prevented to have access to abortion/service and sought an injunction to travel
- High court granted the injunction
Supreme Court
- woman had a right to an abortion under Irish law is there was a real and substantial risk to her life = risk of suicide
The X case resulted in 2 amendments to Irish constitution, which ones?
- Prohibition on abortion does not limit the freedom of pregnant women to travel outside of the state
- Prohibition on abortion does not limit the right to distribute information about services abroad
Is the refusal of reimbursement an acceptable barrier?
- a competent MS will not be forced to reimburse services considered to be a criminal offense at home
- they have control of the basket of health care
Is the limiting to obtaining information an acceptable barrier?
- there was no link to the free movement rules so it's not a restriction
Which 2 barriers can MS introduce to restrict foreigners in their acces to euthanasia?
- Introduction of requirement of nationality/residence for patients
- Introduction of requirement of nationality/residence for physicians
Is the requirement of nationality/residence for patients an acceptable barrier?
- all patients should be treated equitably on the basis of healthcare needs, rather than on the basais of their MS
- except if justified by overriding reasons of general interest
Is the requirement of nationality/residence for physicians an acceptable barrier for the inflow of patients?
- directive 2005/36 on the recognition of professional qualifications: automatic recognition of physicians
- EU law does not allow a MS to restricts physicians from other MS to come with their patients
What does protocol nr. 35 of the treaty say?
- right to life of the unborn
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