Should NHS reimburse for offshore medical treatment?

The Court of Appeal has referred the case of a woman seeking reimbursement for medical treatment she sought abroad to the European Court of Justice. Professor Anthony Michael Arnull, Director of the University of Birmingham’s Institute of European Law, discusses the issue with Greg Bousfield...

A Department of Health appeal against the principle of NHS reimbursement for medical treatment abroad in cases of undue delay could well fail before the ECJ.

The Department is appealing the High Court’s historical ruling in Watts v Secretary of State for Health (2004), involving 72-year Yvonne Watts who had an urgent hip operation performed in France, citing NHS delays. The Court of Appeal has referred the appeal to the ECJ.

“As I understand it, her case is quite strong because of the reasons set out by the High Court,” comments Professor Anthony Michael Arnull, Director of the University of Birmingham’s Institute of European Law. “The Department is anxious to secure an ECJ ruling that there aren’t any circumstances in which people could get reimbursement, but there is already a long list of ECJ cases that people can get reimbursement under certain circumstances.”

When Mrs Watts applied three years ago to the Bedford Primary Care Trust for authorisation to go to another EU country for a hip replacement because she was in severe pain and needed the operation urgently, the Trust told her that there was no undue wait for the operation in the UK since the Trust could meet its Department of Health guidelines of a 12-15 month wait for surgery, and thus would not reimburse her for an operation abroad. The Trust subsequently found her condition had deteriorated and offered an operation within three months but Mrs Watts feared NHS postponement, and so had the £3,800 procedure performed in France. Ruling on her claim for reimbursement, the High Court found it unreasonable for the Trust to solely use their compliance with a waiting list as the basis of saying that there was no undue delay - medical criteria for undue delay was also be relevant, as was evident in Mrs Watt’s case. Although confirming the principle of NHS payment for offshore treatment in cases of undue delay, the court did not order reimbursement because the Trust’s three month offer did not amount to undue delay.

The Department disputes the principle that patients facing undue delay can go to other EU member states for medical treatment and be reimbursed, because the NHS is different from other EU health systems. The Department also argues that patients do not have an absolute entitlement to medical treatment from the NHS. 

Some cross-border treatment - emergency treatment of tourists, for example – is already available under the EU Social Security Regulation but the ECJ may well shed more light on how the Single Market affects the situation. “The Regulation provides that in certain rather tightly drawn circumstances, people can claim reimbursement. However, the ECJ has held in a line of recent cases that there are circumstances which aren’t covered by the Regulation where they may still be entitled to reimbursement by virtue of the EC Treaty’s provisions on freedom to provide services, although in this set of facts, whether she can get her money back may be more doubtful.”

ECJ case law doesn’t sit well with the Department’s claim that the state-funded NHS is unique, he adds. “As far as I know there aren’t any systems in the member states which directly correspond to the NHS nor have there been cases like this directly involving the NHS. But what the court has said about other systems organised on a similar basis to the NHS, particularly the Dutch system, suggests that the NHS would be treated in the same way.”

Central to the Department’s (and other member states’) defence will be the argument that paying for offshore operations will undermine the NHS. This is not an easy hurdle, he says. “This is a recognised derogation, not so much to do with costs but to do with the ability of the national system to ensure a comprehensive coverage, and availability of the full range of medical services throughout its national territory so it can plan health care provision on an efficient basis. But it is not easy for a member state to show that its ability to provide a comprehensive service would be undermined if it were forced to reimburse for treatment in particular cases.”

(12/10/05)

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Case annotations in other services:-
Watts v Secretary of State for Health [2004] EWCA Civ 166, [2004] 2 CMLR 1273, 77 BMLR 26, [2004] All ER (D) 349 (Feb)