There is no legislation in Ireland on the circumstances in which you may be entitled to be referred abroad. The Department of Health and Children has issued guidelines on the use of these provisions – these are guidelines, not binding legislation and they must be interpreted in the light of decisions made by the European Court of Justice.
The guidelines state that your application must be assessed before you go abroad, although some leeway may be allowed in extremely urgent cases. A hospital consultant must provide medical evidence of the details of your condition and of the type of treatment envisaged. The consultant must certify that:
The treatment concerned is not available in this country
There is urgent medical necessity for the treatment
There is a reasonable medical prognosis
The treatment is regarded as a proven form of medical treatment and
The treatment abroad is in a recognised hospital or other institution and is under the control of a registered medical practitioner
These guidelines do not deal with the question of delay in treatment. The European Court of Justice has ruled on this issue. The effect of its ruling is that in order for the HSE to refuse you an authorisation to get hospital treatment in another EU state on the ground of waiting time, it must establish that the waiting time, arising from objectives relating to the planning and management of the supply of hospital care, does not exceed the period which is acceptable in the light of an objective medical assessment of your clinical needs. These clinical needs take into account your medical condition, the history and probable course of your illness, the degree of pain you are in and/or the nature of your disability at the time when the authorisation is sought.
The setting of waiting times should be done flexibly and dynamically, so that the period initially notified to you may be reconsidered in the light of any deterioration in your state of health occurring after the first request for authorisation.
The Court of Justice has also ruled that, if you are unjustifiably refused authorisation for treatment in another EU member state, and you go ahead and get the treatment, you must be reimbursed directly for the amount which the HSE would have had to pay if the authorisation had been granted.
You should apply to the HSE for authorisation to have medical treatment abroad. If this is granted you are issued with a Form E112. The issue of Form E112 implies a commitment by the HSE to pay the cost of treatment.
Arrangements which are made outside the terms of the EU Regulations – for example, arrangements to send a patient to a non-EU country or private arrangements for treatment – are considered to be outside the terms of the Regulations and the HSE is not obliged to meet any of the costs involved. However, in exceptional circumstances, the HSE may pay a contribution towards the cost of the service. Each case is decided on its merits.
Proposed new directive on patients’ rights
The European Commission has published a proposal for a directive on patients’ rights in cross-border healthcare. This aims to clarify the current rights in this area and set out the limits which member states may place on the exercise of those rights. The directive does not propose any change in the rules which are described above but