Monday, July 22, 2013

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. 

7 comments:

Rik said...

Fully agree that the government should come asap with a strategy.

Furthermore what is essential at this point is that it is made clear to (potential and present) investors that even an UK exit will not mean an end to the freetradezone.
Now we got the Japanese stuff. It has to be made clear that conditions for business will not deteriorate, whatever happens. The persception with many outsiders is that an exit will mean effectively an end to the freetradezone.
At the end of the day business is largely interested in the freetradezone. And partially in the influence the UK has in there. All the political stuff is basically irrelevant for business.

From there it is hard to see that LibDems and Labour will say the opposite for more than one reason. They are more pro-EU membership and it is hard to imagine they want to tank the economy.
While on the other hand this can be clearly be explained to the majority of voters. You simply donot dump your by far biggest tradepartner.

Seen from the EU side. They also have to realize that at the moment it might be that an exit is mainly looked at from the UK perspective. But that will change. For a zone in economic difficulties the EZ/EU losing its by far biggest tradepartner (its then former member the UK) would be as disasatrous.
At the end of the day both can simply not afford it.

Jesper said...

Combine two items:

1. Cross-sectoral EU legislation
with
2. Once EU gain competences through some unintended cross-sectoral legislation (legislation interpreted by the ECJ) it is no longer a national competence, it remains with the EU

& what is the result?

All national competences will become EU-competences, it is just a matter of time.
The 'ever closer union', whatever that is supposed to mean, is currently all about centralising power more and more in the very close company of eurocrats.

Rodney Atkinson said...


Norr is McWhirter and I pointed out the extreme risks to the NHS operating in a "free movement" EU nearly 20 years ago when we took our court cases against the Maastricht Treaty.

Only profesional politicians are so incompetents as to take 20 years to recognise a problem!

Rollo said...

Never, in the field of human evolution, have so many competences been handed to so many incompetents.

Denis Cooper said...

Not exactly new or unexpected; this official government document is from 2003:

http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4085947.pdf

“Keeping the NHS Local – A New Direction of Travel”.

Page 16:

"The requirements of the EWTD for continuous rest periods, and the ruling of the European Court of Justice that time spent resident on call counts as working time, (the SiMAP judgement), mean that it will impact most strongly on services which require 24 hour cover."

"This makes the EWTD a powerful force driving the NHS to look at how services are provided."

Denis Cooper said...

Oh, and remember Blair's little joke back in 2006?

http://news.bbc.co.uk/1/hi/uk/4574750.stm

"He adds that he works such long hours that he is probably breaking "some directive or other"."

clinihyp said...

How very different the true facts are from the spin by William Hague in his article EU is good for Britain! Daily Telegraph 22 July 2007!