NHS – waiting lists – treatment abroad – undue delay
This was a claim for judicial review of the decision of the primary care trust (PCT) not to authorise W’s reimbursement for the costs of a hip operation carried out in France. W was 72 years old and had osteoarthritis in both hips. She was seen by a consultant in the UK in October 2002 who indicated that she required bilateral total hip replacements but that the waiting list at her local hospital was approximately one year. W asked the PCT to authorise the bilateral hip surgery in another EC Member State using the form E112 procedure under Art 22 Council Regulation 1408/71 which conferred a right to be treated in another Member State at public expense where such treatment was not available within the time normally necessary for obtaining the treatment in the Member State of residence. The PCT turned down the request to fund overseas treatment on grounds that W’s case was routine and that the PCT would be able to offer the surgery within the government’s 12 month in-patient waiting time target, so that treatment would be obtained in the UK without undue delay. In February 2003 W was reassessed as a ‘soon’ case, meaning a wait for surgery of between three and four months. In March 2003 W went to France and had her right hip replaced at a cost of about £3,900. W claimed to be entitled to reimbursement of that cost. It was accepted that she had no remedy in domestic law. She sought to rely on articles 3 and 8 European Convention on Human Rights and on Art 49 and Art 22 of Regulation 1408/71.
The judge held that any reliance on articles 3 and 8 was precluded by North West Lancashire Health Authority v A, which decided that art 8 imposed no positive obligation to provide treatment and that art 3 was concerned with positive conduct with a high degree of seriousness and did not apply to mere policy decisions on the allocation of resources.
Art 49 EC and Art 22 of the regulation were separate provisions and served fundamentally different purposes. They did not stand or fall together. Article 49 was directed to the prohibition of restrictions on the freedom of those who provided services whilst Art 22 was a social security provision whose fundamental purpose was to safeguard the interests of the insured person who travelled abroad to obtain treatment, but which limited the right to do so at public expense to the specific circumstances referred to in Art 22.2 as amended.
It was clear from case law that the provision of health care under the NHS did fall within the scope of Art 49. A national system which, as in the case of the UK, made reimbursement subject to prior authorisation and other restrictions thereby created a barrier to and restricted freedom to provide services in a manner which required to be justified under Art 49. Such restrictions could not be justified in this case unless the relevant treatment could be provided by the NHS without undue delay. Consideration of NHS waiting times and waiting lists was not irrelevant when assessing whether a patient was faced with undue delay but was not determinative. The PCT was wrong to conclude on the basis of normal waiting list times that W would not suffer undue delay if she waited one year for her operation. However, the Trust’s commitment to providing W with surgery within 3-4 months following W’s reassessment represented a relatively short waiting period and could not be described as “undue”. The case based on Art 49 therefore failed on the facts of this particular case, even though W succeeded in demonstrating that the PCT and the Secretary of State were wrong in holding that Art 49 was not applicable in such a case and in their over-restricted view as to the ambit of any rights conferred on NHS patients by Art 49.
As to Art 22, the judge found that the test the patient had to surmount under Art 22 of the regulation was significantly higher than that under Art 49 EC. Member States were bound to grant authorisation under Art 22 only where the treatment could not be provided within such time as to ensure its effectiveness. The PCT had properly applied that test and was entitled to conclude that the treatment could be supplied in time to be effective.
The judge further found that the materials published by the Department of Health as to the procedure an applicant for authorisation under Art 22 should adopt fell short of the requirement for a procedural system which was easily accessible.