27 October 2003
The High Court ruling in the case of Watts v Bedford Primary Care Trust carries important implications for the Government, the health service and patients. The case was brought by Yvonne Watts, who needed a hip replacement and sought prior authorisation from Bedford Primary Care Trust (PCT) for treatment in Belgium, where surgery was expected to take place within two weeks. The PCT refused, believing the treatment required was routine and that there would be no 'undue delay', based on NHS Plan target times for in-patient access of 12 months. Watts' case was re-evaluated in the UK in January 2003, and her deteriorating condition meant she was recategorised and could expect treatment in April or May. However, by this point, she had consulted a surgeon in France and arranged an operation for early March. She went ahead with this surgery and then sought to recover the cost, serving judicial review proceedings on both the PCT and the Secretary of State for Health.
Ruling on the case, Mr Justice Munby refused Watts' application for reimbursement. In doing so, however, he rejected the Department of Health's interpretation of certain key elements of European law, on which it had mounted its defence, and made some important rulings affecting current health service practices.
The case turned particularly on Article 49 of the European Community (EC) Treaty, which is binding under UK law. The Department of Health argued that Article 49 - which prohibits member states from establishing barriers restricting the freedom to provide services within the EC - does not apply to health services. The judge ruled that it does and any requirement for 'prior authorisation' might therefore be deemed an illegal barrier.
The judge did qualify this by saying that a 'prior authorisation' regime might be justifiable if there is sufficient reason for it - for example the need to guarantee a financially stable NHS and to plan services - and if the authorisation process observes the normal principles of public law - accessible, proportionate, objective, impartial and the criteria are known in advance. This qualification gives the Government and PCTs a continuing right to vet applications for NHS-funded treatment in other EU countries, but they need to demonstrate that they employ a transparent, objective process in doing so. The Department of Health has particular cause for concern. The judge criticised the prior authorisation process it sets out on accessibility grounds and the "unfortunately unhelpful and somewhat opaque terms" in which it provides guidance to PCTs. The department did highlight that it has already begun a review of its guidance, but the ruling may lead it to conduct this with renewed vigour.
In another part of his ruling, the judge confirmed that prior authorisation can be withheld if treatment is deemed unnecessary by appropriate professionals or if it can be provided "without undue delay" in the UK. The issue of "undue delay" is key. Bedford PCT had pointed to "normal" waiting time targets as justification for its refusal, but Judge Munby ruled that waiting time targets should be only one factor in the decision - the patient's condition and suffering were among the others that should be considered. So what constitutes 'undue delay' must be decided in relation to the facts of the individual case. In Watts' case, however, the facts suggested that once her condition had deteriorated and it had been recategorised, a delay of two to three months would not have been undue and her claim for repayment failed.
The ruling in Watts v Bedford PCT is consistent with European law and recent trends in it. It will undoubtedly lead the Department of Health and PCTs to evaluate the implications for current policies and practices. For patients, it means that the need to apply for prior authorisation still applies, but their cases will need to be examined and decisions made on the basis of all relevant circumstances. The court may not have reimbursed Watts, but its ruling could lead to a sea change in the way requests for authorisation are handled in future.