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These Regulations amend the Health and Social Care (Reform) Act (Northern Ireland) 2009 and the Health and Personal Social Services (Northern Ireland) Order 1972 to give effect to the judgement of the European Court of Justice in Case C-372/04 The Queen, on the application of Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health (ECR I-4325). It held that the obligation under Article 49 of the EC Treaty to reimburse the cost of hospital treatment provided in another member State also applies to a tax-funded health service, such as in Northern Ireland, which provides such treatment free of charge. (Article 49, now numbered Article 56 under the Treaty on the Functioning of the European Union, provides for the freedom to provide and receive services in another member State of the European Union.) These Regulations also cover non-hospital treatment.
The Regulations make provision which is similar in effect to that made in England and Wales (S.I. 2010/915) and Scotland (S.S.I. 2010/283). Whilst the Regulations may to some extent reflect the general object of Chapter III (reimbursement of costs of cross-border healthcare) of 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), further legislation will be required to give effect to that Directive in UK domestic law, with transposition due to take place by late 2013.
The EEA (European Economic Area) consists of the member States of the European Union, together with Norway, Iceland and Liechtenstein.
Regulation 3 inserts a new section 3A into the Health and Social Care (Reform) Act (Northern Ireland) 2009 (“the 2009 Act”). Section 3A expressly enables the Department of Health, Social Services and Public Safety (“the Department”) to provide health care referred to in section 3A outside Northern Ireland. It is conceivable that a particular case may justify or require the securing of aspects of the health care referred to in the new power from outside Northern Ireland. The amendment to section 8(6) of the 2009 Act provides that for the purposes of carrying out its functions the Regional Board may, on behalf of the Department, exercise the Department’s power under new section 3A, as well as the general power under section 3.
Paragraph (1) of regulation 4 makes amendments to Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972 (“the Order of 1972”) which are necessary in relation to the amendments of that Order contained in both paragraph (2) of regulation 4 and regulation 5.
Paragraph (2) of regulation 4 inserts new Articles 14B and 14C into the Order of 1972.
The new Article 14B places a duty on the Department to reimburse qualifying EEA expenditure (defined in paragraph (3)) incurred on or after 10th May 2012, subject to the conditions for reimbursement of qualifying EEA expenditure (including certain requirements for prior authorisation of the expenditure), the exceptions that apply, any limits and restrictions that may be imposed and the health care charges that may be deducted.
Article 14C contains detailed provision about any prior authorisation that is required for the purposes of Article 14B(3)(b) or (c) (in relation to the health care services referred to there). The circumstances in which prior authorisation must be given by the Department are set out.
Regulation 5 amends the regulation making power in Article 45(1)(a) of the Order of 1972 in respect of travelling expenses to cover services the cost of which falls to be reimbursed under Article 14B or services authorised to be received (in another EEA state or Switzerland) under Article 20 or Article 27(3) of Regulation (EC) No. 883/2004.
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