NHS patients to beat waiting lists in Europe?

Thousands of patients on waiting lists could receive surgery in hospitals on the Continent and be paid for by the NHS in cases where there was “undue delay”, following a ruling by the High Court last week.

The case concerned Yvonne Watts, 72, an arthritis sufferer from Bedford, who claimed that the NHS should pay the cost of a hip replacement she had in France after complaining about the maximum 15-month wait for the operation in the UK.

Mr Justice Munby ruled that, if treatment in this country under the NHS was unduly delayed, “then an NHS patient is entitled, as a matter of European law, to travel to another member state, there to be treated on terms requiring the NHS to reimburse the cost of that treatment”.

In fact, as Richard Stein, a partner at Leigh Day & Co who represented Watts, pointed out, his client’s own claim “failed on a technicality”. But he added: “The principle that patients who are medically assessed as needing urgent treatment should be given the choice of early treatment abroad was confirmed.”

Watts failed to win back the £3,800 cost of her own operation because the judge also ruled that she had not faced an undue delay, as her healthcare trust had bumped her up the waiting list after she complained and indicated that she would receive treatment within just over four months. In his judgment, Judge Munby considered what constituted ‘undue delay’ and held that in a case such as this, it was “very much less than a year”, but more than a period of four months.

“This judgment is a very good one for patients, who will now be able to choose to have urgent treatment earlier by going abroad rather than waiting, often in considerable pain, on an NHS list. It will also benefit other patients on the waiting list who do not go abroad,” said Stein. “It shows that waiting lists are an unfair restriction on a patient’s access to treatment. NHS waiting times in the UK will have to be drastically reduced”.

The case brings home an established set of EU precedents on the principle of freedom to provide services and its corollary right to receive services – principles that the European Court of Justice (ECJ) unequivocally applied to medical treatment last year.

The High Court’s readiness, in principle, to embrace the ECJ’s approach will bring relative comfort to NHS patients across the board. Whether patients will be allowed to be treated abroad (there are moves afoot to contract out some operations to clinics in the EU) or whether the resulting pressure on the NHS itself will ensure that it can provide treatment without undue delay, waiting times should come down.

See: R (Watts) v. Bedford Primary Care Trust & Ors

Related links:
C-368/98 Vanbraekel (12 July 2001)
C-157/99 Smits and Peerbooms (12 July 2001)
C-385/99 Muller-Faure (13 May 2003)