Tamara K. Hervey, Jean V. McHale. Health Law and the European Union. Cambridge: Cambridge University Press, 2004. vii + 469 pp. $60.00 (paper), ISBN 978-0-521-60524-3.

Reviewed by Lynne Fallwell (Center for Worker Education, City College of New York)
Published on H-German (June, 2006)

Striking a Healthy Balance

As the European Union and its member states continue to define their relationship, new issues emerge testing the balance between national autonomy and union-wide consensus. In their study, Tamara K. Hervey and Jean V. McHale draw attention to one such issue, namely the interplay between EU citizens' right to cross national boundaries (within the EU consortium) in the pursuit of health care services and the corresponding implications of such open access for individual national health systems. In this extensively researched and richly footnoted text, Hervey and McHale highlight key legal directives and map the evolving nature of health law in Europe as it shifts between national and transnational concerns.

The book is organized into three parts and each is further divided into smaller chapters. Part 1 provides readers with assorted background information. Its first chapter opens with a detailed discussion of terminology--specifically, what constitutes "health"? What is the relationship between health and law making? And what parameters are used to define "health law"? Drawing on an evaluation of the existing literature, the authors separate "health law" from other terms such as "medical law" and "health care law." They then discuss the relationship between health law and related issues such as public health, the administration of health services (EU countries tend to organize according to either a national health service or social insurance system) and ethical considerations related to health and human rights. The chapter concludes with an articulation of the book's main research question: "How does EU law affect national health law and policy?" (p. 29). As the authors indicate, the intent of their study is not to present what the European Union should be doing in terms of health law, but rather to provide readers with a sense of the ways in which the union has, is, and may continue to engage in issues relevant to health law.

The second chapter provides readers with an overview of the European Union--what it is, what it does and how it has operated. Here, the authors outline various governing styles, including deregulation, "old" versus "new" harmonization, "regulatory" versus soft coordination and financial incentives. Coupled with a summary of the court system and its role in creating and enforcing regulations, this chapter provides an understanding of the complex nature of decision-making involved in drafting legislation at the union level.

The third chapter brings together issues of individual rights and state responsibilities under a discussion of community competence. Various policy fields, such as internal market law, agricultural law and environmental law are reexamined through the lens of their relevance to heath law. Specific articles in the EU charter pertaining to the provision of health care matters are also discussed. Readers gain insight into the struggle between guaranteeing freedom of movement across borders and protecting individual state interests. The chapter concludes with a review of community competence as it applies to issues of health and tobacco advertising. Germany's challenge to the Tobacco Advertising Directive--which seeks to ban all forms of tobacco advertising and sponsorship across the European Union--features prominently.

Part 2 focuses on six points: the migrant patient and cross-border access to health services; ensuring information confidentiality in such a transitory environment; the regulating of health practitioners; the monitoring of clinical research; the disbursement of pharmaceuticals; and transnational public heath issues. This last section covers topics such as communicable diseases (predominantly HIV/AIDS), health education (anti-tobacco advocacy and the "Europe Against Cancer" initiative) and food safety (prompted by concerns over the appearance of BSE/nvCJD, or "mad cow" disease).

In summarizing why some patients chose to seek health care outside their member state, the authors identify four principle motivating factors: reasons of cost; perceived higher standards of care; access to experimental therapies; or a desire for expedited care. A separate section on "reproductive tourism" also points to matters of ethical consideration. Framed in terms of the debate around one's "right to reproduce," this section examines the legal junctures between an EU citizen's right to freedom of movement and a member state's right to limit access to those procedures it considers ethically controversial. This conflict pertains not only to issues such as abortion, but also to questions about who maintains control over the frozen sperm of a deceased husband.

In discussing the regulation of health practitioners, the authors point out that practices are far from standardized. This diversity becomes a problem when a professional trained in one country seeks to set up practice in another. Part of the difficulty arises from when a specialty is recognized by one nation but not another. In illustrating this point, brief reference is made to the example of a German Heilpraktiker unable to work in Austria because there the training is not recognized as a "regulated profession" (p. 228). Elsewhere in the chapter, references to Germany appear in conjunction with EU rulings on the importing of pharmaceuticals by private citizens.

As its title indicates, part 3 offers both "conclusions and future prospects." Referring to case studies mentioned earlier in the text, the authors identify four central themes within EU health law: "risk," "rights," solidarity" and "consumerism" (p. 390). Hervey and McHale describe how, in enacting policy decisions, the European Union has opted for a cautious approach to risk-taking. Furthermore, in making rulings, great attention has been and will continue to be paid to the language and guarantee of rights. "Solidarity" refers to efforts at creating cohesion as one community adapts to accommodate another. In this negotiation there is a balance between demand and responsibility and the necessity for creating an environment that serves the needs of the citizens as individual patient-consumers, the separate nations as autonomous entities and the greater collective of the European Union as a whole. Finally, "consumerism" describes how many of the Union-wide directives are predicated on the view of the patient-as-consumer. At the same time, it is necessary to acknowledge that the health care "market" is different than other markets. The book ends by drawing attention to health law topics of future consideration for the European Union including addressing global matters with ethical overtones such as cloning, sex selection and gene therapy (p. 404). As the authors indicate, much of the future discussion will hinge on the direction the European Union takes with its Draft Constitutional Treaty.

This book is aimed primarily at legal scholars in both the fields of health law and EU law. It seeks to provide a common ground between these groups and certainly offers ample information to stimulate discussion. Clear articulation of the study's parameters and reiteration of key points in each chapter conclusion indicate the text's suitability for use in the legal classroom. With over fifty pages of tables, including listings of conventions and treaties, legislation, national provisions and individual cases, it is also a good reference text for legal practitioners interested in a range of health law issues. Unfortunately, none of the tables includes a key or other form of explanatory introduction. As a result, those less familiar with the format may find the tables difficult to navigate.

The book's strength rests in its overview of cross-border health issues from a legal perspective and the related construction of Union-wide polices. It is not intended as a source of in-depth discussion on specific national issues, although individual national policies are raised within the context of a broader European Union framework. Scholars wanting to look up the relationship between the Union and individual countries are less well served, as the index does not contain entries for individual countries.

While directed principally at legal scholars, this book does have applications for a wider audience. It certainly provides readers pursuing questions of transnationalism with a foray into that subject from legal and health perspectives. Others may find separate sections useful. For those interested in the training practices of health care professionals, the book's portrayal of the relationship between EU law and education/employment shows how issues of professionalization are not simply confined to purview of individual practitioner associations. Similarly, the presentation of the European Union's legal considerations regarding issues of moral and ethical significance offer material for those interested in questions of reproductive technologies and abortion issues. Likewise, the legal emphasis on defining and protecting fundamental human rights speaks to those approaching that topic from other perspectives. Finally, the book provides readers with a better sense of why, regardless of issue, the legislative process within the European Union moves so slowly as it seeks to balance the interests of multiple parties.

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Citation: Lynne Fallwell. Review of Hervey, Tamara K.; McHale, Jean V., Health Law and the European Union. H-German, H-Net Reviews. June, 2006.
URL: http://www.h-net.org/reviews/showrev.php?id=11881

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