Between January 2018 and March 2020 Dr Eleanor Brooks (Edinburgh) and I were awarded a British Academy Small Research Grant to explore what new directions may exist in the field of EU health law and policy. The end of the project coincided with my research leave (December 2019 – April 2020), during which I was fortunate enough to be a visiting researcher at Kent Brussels School of International Studies, the University of Amsterdam and Maastricht University. This time – and the end of the project – was inevitably marked by the COVID-19 pandemic and lockdown, which raises questions about future research directions.

What is EU health law and policy?

I have previously suggested that EU health law and policy is not represented by a simple equation whereby EU law + health law = EU health law. Although the scope – and terminology – of health law can give rise to much discussion, common themes to emerge include topics relating to the start and end of life (such as surrogacy and assisted dying), as well as rationing and allocation of healthcare resources, which can raise both ethical and legal framings and questions. The latter considerations regarding national health policies and allocation arguably find most reflection in EU health law and policy, and law students may first become aware of EU health law and policy in connection with EU citizens accessing healthcare in different Member States, or healthcare providers operating in various countries. Considerations of human rights perspectives – for example in cases concerning assisted dying – may include judgments from the European Court of Human Rights, hinting at the existence of a wider European health law, distinct from EU health law and policy.

An important distinction in the field of EU health law and policy is between “(public) health” and “healthcare”, which is illustrated by Article 168 Treaty on the Functioning of the European Union (TFEU), as well as a range of other legislation and policy documentation. EU-level initiatives regarding public health can relate to aspects as diverse as cancer treatment, blood transfusions and antimicrobial resistance, overseen primarily by the European Commission’s Directorate-General for Health and Food Safety (DGSANTE). In contrast, “healthcare” relates to healthcare system organisation, regarded primarily as a national competence under Article 168(7) TFEU.

However, other aspects of EU law and policy can influence national healthcare systems – not only the aforementioned movement of patients between Member States to access healthcare, but also the competition rules which can influence national reforms. Further EU-level influence over national healthcare systems is evident in connection with economic policy assessments following the 2008 downturn.

Overall, the field of EU health law and policy has been shaped primarily by lawyers and political scientists, suggesting a “patchwork” aspect. However, there is considerable scope to develop involvement by other disciplines, notably sociologists.

The project – from a World Café at Lancaster to a special issue of Health Economics, Policy and Law

Our project was shaped by the apparent fragmentation of scholarship in this area, coupled with a change in focus at Commission level following the economic downturn. We decided to investigate not only the “state of the art”, but also possible directions. With that in mind, our project comprised two workshops and a special issue proposal.

The first workshop was held in Lancaster in April 2018 and involved a World Café format, where participants had identified and submitted “research challenges” in advance. These challenges then formed the basis for small group discussions, leading to larger group feedback. Participants at this workshop included academics at all career levels and policy practitioners from the UK, the Netherlands and Belgium.

The findings of this workshop formed the basis for an Outcomes Document and from this, we were able to identify particular themes which framed a call for papers. The second workshop, at Edinburgh in November 2018, offered a discussion forum for a range of papers which went on to be developed for inclusion in a special issue.

We chose Health Economics, Policy and Law (HEPL) because of its interdisciplinary focus and wide-ranging readership. Our overall findings from the project are set out in our guest editorial, alongside a diverse range of papers on enforcing Health in All Policies, antimicrobial resistance, mental health, medical devices, competition concerns in the pharmaceutical sector, a new approach to applicability of EU competition law in the healthcare sector, a comparison of health governance in the EU and other federal systems, and reflections on directions for health policy and research. We are grateful to all the contributors, and for the editorial support from HEPL.

What’s next?

As with many working on health themes, I’m finding that some aspects of my research can be developed to contribute to discussions responding to COVID-19, but that others will continue to evolve independent of this. For example, I’ve been writing on how COVID-19 has impacted different aspects of national healthcare system organisation, such as the introduction of The Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Orders 2020. This was introduced to support the “deal” struck between NHS England and the Independent Healthcare Provider Network in March 2020. This deal led to an historic reallocation of independent sector (including private) hospital capacity to support the NHS, both in terms of a “crisis” response, but also to enable continuity of non-COVID-19-related services. I presented this at LSE and Bristol and am developing this in light of the evolving situation prior to submission.

Responses taken at EU level to COVID-19 often meet with the criticism that little is seen to be done because health policy is a matter for Member State competence, as seen above. Such concerns have fed into calls for a “European Health Union”, which have been growing over the past few months at national and EU levels, and given renewed prominence by reference in the State of the Union address by Commission President Ursula Von der Leyen in September 2020. My first contribution to these discussions has been an opinion piece in the European Journal of Risk Regulation, examining what the role for Member States is in a European Health Union. I also commented on the relaxation of the EU competition law framework in response to COVID-19 in an Opinion Paper for the European Social Observatory.

I have set up an online seminar series, Health in Europe, where academics at all career levels from a range of disciplines (mainly law, political science and sociology) meet regularly to discuss a wide range of topics – from pharmaceuticals to EU fiscal policy, via the Withdrawal Agreement, public procurement and the EU’s response to Ebola, as well as COVID-19. Email me (m.guy2@lancaster.ac.uk) if you’d like to join us!

I’ve also recently secured funding from the University Association for Contemporary European Studies (UACES) to set up a Research Network on EU Health Governance with Dr Eleanor Brooks and Dr Charlotte Godziewski. More information to follow, but in the meantime, follow us on Twitter @EUHealthGov!

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