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The Norwegian Board of Health is an independent supervision authority, with responsibility for general supervision of health and social services in the country.

The Norwegian Board of Health recognizes the importance and advantages of cross border health services. An increase of free movement in this area can create potential for higher quality of services, a more cost effective health system in most member states and a strengthening of patients’ freedom of choice.

In its role as independent supervisor the Norwegian Board of Health so far has mainly experienced the effects of cross border health services through cases involving individual healthcare professionals from other EEA countries practising in Norway. Such cases are relatively uncomplicated from a legal point of view, as healthcare professionals practising in Norway will fall within the scope of Norwegian law. So far, there are not many foreign healthcare providers present in Norway. From a legal point of view, also they will fall within the scope of Norwegian law and supervision. There are at present also relatively few patients from other EEA countries coming to Norway for health treatment. On the other hand there is a larger flow of Norwegian patients seeking medical treatment in other EEA countries and Norwegian authorities at times have entered into agreements for treatment of Norwegian patients when capacity in Norway was insufficient.

The Communication from the Commission on health services raises many important practical, professional, economical and ethical questions in connection to free movement in this area. As the main organ for supervision of healthcare in Norway, we only address those which are important to our area of responsibility.

Ad question 2: What specific legal clarification and what practical information is required by whom? 

Information on individual healthcare professionals

An increase in the number of patients seeking health treatment abroad, will require a closer and better cooperation between supervising organs/authorization organs etc. Patients must be able to obtain information on the professional status of healthcare professionals. Initiative for improved coordination and exchange of information on individual healthcare personnel has so far mainly been aimed at the authorizing and supervising authorities in the member countries in relation to each other.  This process has so far gone relatively slowly, mainly because of national diversity of rules on the protection of privacy. This makes it difficult to come to an agreement on how information should be exchanged, how much information can be exchanged and how and to whom this information should be available. As long as this issue is not solved, it will imply that patients have fewer possibilities to check on quality when seeking treatment abroad.

Information on healthcare institutions

It should also be made easier for patients to get access to relevant  reports on the supervision and quality measurements of health services in the different member states. In the current situation there is a difference in policy in this area in the member states. In some countries such reports are published and made available to the public on the Internet. In other countries availability to the public is much more restricted.   

Ad question 4: Who should be responsible for ensuring safety in the case of cross-border healthcare? If patients suffer harm, how should redress for patients be ensured?  

Problems in relation to complaints

As soon as more patients will seek treatment abroad, complaints about this treatment will also become more common. This will give new challenges to supervising authorities, having to deal with the fact that the “source” of the complaint (the patient) already may be abroad. The EEA countries have different systems of supervision. In some countries, like Norway, the requirements necessary to make a complaint are relatively few. On the basis of this information the supervision authority will be able to decide to investigate, consider and conclude the case further, totally without the involvement of the patient by using several different legal instruments in order to obtain further information. In other countries patients have a central role in the process of complaint and in some countries complaints are handled in about the same way as ordinary legal cases. This means that the patient almost has to conduct his own case, with or without the assistance of a supervising authority. In some cases it may financially and practically be too high a barrier for a patient to conduct his case.  

Compensation systems

Many countries have developed publically financed compensation systems for patients suffering damage as a result of medical treatment. Some systems may compensate in case of malpractice from professionals within the public health system, whilst others compensate for any damage, and include also private healthcare providers. In some countries some form of culpa may be essential in order to have a claim for compensation, whilst this requirement is irrelevant in other systems. Such a wide variety of systems is confusing and may create unwanted barriers for cross border patients. One solution can be to harmonize the legislation both on liability and compensation in this area. As this is not always a feasible solution in a short term perspective, action should be taken in order to give patients access to information on the legal differences in member states and the consequences this can have on patients’ right to compensation.  

Ad question 6: Are there further issues to be addressed in the specific context of health services regarding movement of health professionals or establishment of healthcare providers not already addressed by Community legislation?

Dividing the legal responsibilities of cross-border patients’ special needs

Cross border patients will have special needs. Many of them will be far away from home, which implies special arrangements in case of complications, special social needs in case of longer hospitalization, need for cross border cooperation between health institutions, exchange of medical information and sometimes need for linguistic assistance. It is important that there is a legal clearness as to who bears the legal responsibility for the fulfilment of those needs. Cooperation and responsibility for such matters in pure national cases are usually sufficiently defined in national rules. Cross border cases as such will constitute a much bigger challenge where the risk of non-acceptance of responsibility is imminent.

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Anneke Borgli