Entitlement to Socially-Covered Health Care vs. Priority Setting: ECJ'S Decomposition of the NHS?

Abstract

The European Court of Justice has, in just over a decade, developed considerable jurisprudence on persons accessing health care in EU Member States in which they are not socially protected. The approach is centred on the individual patient's entitlement to receive the best possible health care to alleviate his/her medical problem anywhere in the EU. However, this has created serious problems regarding the balance of basic principles governing the English NHS, and the free movement principle of EU law.

The aim of the paper is to analyse the English case-law on entitlement to socially-covered health care and see if suggestions for a more balanced EU regime on patient mobility can be made. The analysis of the English case-law demonstrates that decisions on entitlement to health care are focused on limited resources and making priority decisions at the local level. The investigation of the Court of Justice jurisprudence shows that the Court gives priority to individual patients' needs and entitlements, while disregarding limited resources and priority decisions. On the basis of these findings, the paper proposes a more balanced course of action by the Court of Justice, taking into account the logic of the English courts.