EU policy on package travel:  in the context of medical tourism

Brief history of travelling abroad

Ever since the creation and development of the internet and low cost carriers, consumers are no longer buying pre – arranged packages but are developing their own personalized packages online. As a result, the current 1990 directive on package travel ceases to offer maximum protection to those going on holiday as its provisions do not encompass these new developments. For instance, in the UK, there are estimates that only 50% of passengers are now protected on leisure flights as compared with 98% in 1997.

In addition, the Medical Tourism Survey 2007 conducted on behalf of the organisation Treatment Abroad confirmed that in 2006, 50,500 UK patients travelled in total for medical treatment abroad. In the UK newspaper, the Independent, it was mentioned that medical tourism has become popular in the recent years, due to the prospects of cheap flights, getting well whilst basking in the sun and even more because of the increasing waiting list of the NHS for operations and the expensive private healthcare system.   

Current cover offered by the 1990 Directive 90/314 on package travel, package holidays and package tours 

The Directive is responsible for offering cover for package holidays that have previously been arranged by the customer who has booked a package for transport, accommodation or other significant touristic services not related to transport or accommodation. A consumer is only protected when at least two of the above elements are contained in a package at an inclusive price or if the package is for more than 24 hours or includes overnight accommodation.

This directive imposes minimum requirements for organizers and retailers but the Member States themselves are allowed to create stricter measures. At present, an organizer/retailer should provide a consumer with information before, during and after the contract has been made. In addition, if the service provided is not satisfactory, in most situations, the organizer/retailer has to rectify this. It is possible for consumers to cancel a contract without any charge and obtain a refund if “essential elements” in the contract such as price or carrier are changed. Lastly, there is a requirement for the travel agent or tour operator to provide security for the customer. This would enable the customer to be protected against loss should any of the service providers become insolvent. However, there is no provision that deals with medical tourism or treatment received abroad. It seems that the above directive only protects consumers who go for leisure and nor medical holidays.  

Current cover that could be offered by the 2008 proposed Directive on application of patients' rights in cross-border healthcare

 Although this proposal was adopted by the EU in 2008, the directive still has to be implemented by the Member States in order to be fully effective in law. As part of the Renewed Social Agenda, this directive offers clear rules on the rights of EU patients to seek healthcare in another Member State, but this directive can only be implemented by EU Member States and does not apply to the international healthcare sector. So if an EU patient was required to go to India or Thailand for medical treatment, then this directive would not offer any protection. The directive's reimbursement rules include any non-hospital care to which citizens are entitled in their own Member State; citizen they may also seek non-hospital care in any other Member State without prior authorisation, and be reimbursed up to the level of reimbursement provided by their own system.

Additionally, citizens are also entitled to seek hospital care as they would in their Member State, and be reimbursed up to the level of reimbursement provided by their own system. If an unpredictable surge of cross-border healthcare risks becoming a serious problem, the proposal provides for a specific safeguard clause. If something goes wrong, patients will be guaranteed redress and compensation and will be provided with assistance by national contact points for cross-border healthcare.

Proposal by the Commission Consultation to find out the main regulatory problems in the area of package travel and Results of Consultation

Through this 2007 consultation the Commission hoped to extend the basic cover offered by the 1990 directive. The main problem that currently exists include different national laws on package travel within each Member State legal system especially in relation to the definition of organizers/retailers and no clear distinction between service providers.

Results of this consultation included respondents wanting a clearer indication of the scope of the directive, clearer responsibilities for organizers and retailers, information on the package that is provided in writing as well as the web and clarification of “essential elements” with regards to price and carrier. Furthermore, Member States wanted better protection for the consumer against insolvency and prompt responses to consumer complaints.

“Dynamic Packages” and another consultation proposing to revise the 1990 Directive    

In January 2009, the Commission released a "Study on Consumer Detriment in the area of Dynamic Packages". The study looked into measuring consumer detriment in “dynamic packages” which is the principle of giving customers more freedom to create their own personalized packages. Thus, using these results, the Commission launched another consultation in November 2009 which looked at remedying the current problems in the areas of information, liability for substandard services, assistance to customers, insolvency, contract changes and Travel Protection Label. With regards to these sections, the Commission would like to improve the basic insolvency protection offered  as well as developing a travel protection label that informs on which travel products or the equivalent are protected under legislation. Results from this consultation have been received on February 7 2010 and have been published on the European Commission website. A summary of these results will soon be published.

No express mention of preventing medical tourism scams?

The occurrence of medical treatment scams are starting to become prevalent in the UK where patients have started to travel abroad for dental treatment, cosmetic surgery, other surgery such as hip replacement and fertility treatment. This might be because of the current cost of the private healthcare services in the UK but the growth of the internet could have also caused a growth in this phenomenon. Furthermore, in the Independent, it was claimed that dental implants for someone who has lost all their teeth through gum disease would cost up to £50,000 in Britain but just £16,500 in Hungary, including travel and accommodation.

However, Dr. Anthony Halperin, chairman of the national UK charity, the Patients' Association has warned that if surgery goes wrong whilst you are abroad in a non EU country then you have only a right to legal redress. This right is limited as you would only have a right to claim from the foreign surgeon or clinic within the national country, which is not always straightforward as there might be several barriers such as language, different legal system etc. In addition, Dr. Halperin believes that guarantees for treatment done at these overseas institutions are only upheld if the patient has regular check ups at the foreign clinic. Not only will no insurance firm insure you for these risks as the risk probability is high but most people do not travel back for routine appointments meaning that they would lose their guarantee and hence their right to claim.

It is also not safe to travel overseas too often right after having an operation and a total of 92 per cent of surgeons surveyed by the British Association Of Aesthetic Plastic Surgeons (BAAPS) said they're most concerned about the lack of aftercare provided.  Mr. Keith Pollard, chairman of medical – tourism firm, Treatment Abroad, does suggest that claims are only easier if one books through a UK intermediary although in many cases it is sometimes cheaper for people to book their medical holiday directly with the overseas institutions. Therefore, in view of these issues, it is fair to say that the current package travel directive needs to be extended so as to now include medical together with the leisure tourism industry. Although the above circumstances are only relevant to the UK, the medical tourism is fast expanding and these problems could be worldwide.

A good example of trying of dealing with this emerging medical tourism issue is Treatment Abroad's code of conduct which envisions a form of best practice that all medical treatment facilities should aim to follow. Those who follow these guidelines are then recognized as following best practice by Treatment Abroad. This is a good start which can also provide the inspiration for a best practice initiative at EU level and a measure for protecting victims of medical tourism scams, especially when claiming under another national jurisdiction.

Next Steps

On the 22^nd of April 2010, the Commission organized a stakeholders meeting in Brussels  in order to consider the revision of the package travel directive. In the beginning of 2011, the Commission will analyze the different views of society, businesses and relevant authorities and will then release a proposal to revise current legislation.

EU Directive on Cross border Health care to boost Medical Tourism

The new draft Directive on patient's rights in cross border healthcare, as agreed in Luxembourg in June 2010 following a compromise proposal by the Spanish presidency, is set to increase the already growing number of people travelling across the EU to receive medical care. The Directive creates a formal framework and removes obstacles, as well as ensuring safe and high quality treatment  for EU citizens hoping to avail of the best deal, which is often abroad.

The Directive provides a mechanism by which the patient could be able to receive treatment in another member state and then claim reimbursement from their state of affiliation. This reimbursement will go as far as the level applicable for the same or similar treatment in the home state. The Directive however provides a means by which reimbursement may be limited in the case of overriding reasons of general interest.

The directive will create more cooperation between European healthcare systems, including the establishment of “European Health Networks”, which would combine expertise, training and resources, to improve the quality of healthcare in Europe. Provisions are also included relating to the assessment of new medical technology as well as the establishment of standards for e-health, specifically the transfer of patient information and medical records.

Improvements are brought to the recognition of prescriptions from other member states also.  In general, any medicine that is authorized to be marketed on a member state's territory will allow for prescriptions to be dispensed, even if prescribed in another EU member state.

The Directive is set to create a truly open market for healthcare in Europe. Regulating medical tourism will improve the quality and development of healthcare in Europe. Pooling resources and cooperating amongst each other, every health system in Europe is set to improve. Patient choice is brought to a whole new level and specialised treatments will be more readily available.