Patient Choice, Medical Ethics and Free Movement of Patients: The "Emancipation" of the Cross-Border Healthcare Directive

Van Leeuwen, Barend

Abstract

As the free movement rights of patients are based on their entitlements under their national healthcare system, the exercise of these rights is not supposed to increase patient choice. Nevertheless, in the field of medical ethics, patients are likely to want to exercise patient choice. This article will show how, in its recent case law, the CJEU has interpreted the Cross-Border Healthcare Directive in such a way as to improve the exercise of patient choice in the internal market. In doing so, the Court has explicitly distinguished the aim of the Directive from the Social Security Regulation. As a result, more than a decade after its adoption, a process of “emancipation” of the Cross-Border Healthcare Directive may be observed. At the same time, the CJEU should develop and refine its approach towards identifying the limits on patient choice in the internal market. The current approach is based on a financial perspective, which is not suitable when Member States restrict free movement for reasons related to public policy or public morality. The process of emancipation of the Cross-Border Healthcare Directive does not just tell an important story about the relationship between primary and secondary EU law – it also shows the increasingly important role of the Charter of Fundamental Rights in free movement cases. The adoption of a non-discrimination “frame” based on the Charter shows how the CJEU is developing a more harmonious relationship between free movement rights and fundamental rights in the internal market.

Citation

Van Leeuwen, B. (2023). Patient Choice, Medical Ethics and Free Movement of Patients: The "Emancipation" of the Cross-Border Healthcare Directive. European law review, 48(6), 662-680

• Journal Article Type: Article
• Acceptance Date: Oct 16, 2023
• Publication Date: 2023
• Deposit Date: Oct 16, 2023
• Publicly Available Date: Dec 31, 2023
• Journal: European Law Review
• Print ISSN: 0307-5400
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Volume: 48
• Issue: 6
• Pages: 662-680
• Public URL: https://durham-repository.worktribe.com/output/1803550
• Publisher URL: https://www.sweetandmaxwell.co.uk/Product/Academic-Law/European-Law-Review/Journal/30791372