R (Watts) v Bedford Primary Care Trust and Another; R (on the application of Watts) v Secretary of State for Health

JurisdictionEngland & Wales
JudgeMr Justice Munby
Judgment Date21 October 2003
Neutral Citation[2003] EWHC 2228 (Admin),[2003] EWHC 2401 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/5690/2002
Date21 October 2003

[2003] EWHC 2228 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

The Honourable Mr Justice Munby

Case No: CO/5690/2002

Between:
R (on The Application Of Yvonne Watts)
Claimant
and
(1) Bedford Primary Care Trust
(2) Secretary Of State For Health
Defendants

Mr Richard Gordon QC and Mr Jeremy Hyam (instructed by Leigh Day & Co) for the claimant

Mr Steven Kovats and Ms Nicola Greaney (instructed by Park Woodfine) for the Trust

Mr David Lloyd Jones QC and Ms Sarah Lee (instructed by the Office of the Solicitor) for the Secretary of State

Mr Justice Munby

Introduction para

[1]

THE FACTS

[9]

THE LITIGATION

[31]

DOMESTIC LAW

[38]

HUMAN RIGHTS LAW

[44]

COMMUNITY LAW – THE LEGISLATION

[56]

Article 49

[57]

Article 22

[63]

The inter-relationship between Article 49 and Article 22

[72]

COMMUNITY LAW – ARTICLE 49

[78]

Applicability

[86]

Interference

[111]

Justification

[118]

Procedural requirements

[151]

The claimant's case – the first decision

[155]

The claimant's case – the second decision

[168]

COMMUNITY LAW – ARTICLE 22

[176]

The claimant's case – the first decision

[182]

The claimant's case – the second decision

[186]

COMMUNITY LAW – REIMBURSEMENT

[188]

Article 22

[191]

Article 49

[193]

CONCLUSION

[195]

1

This case is about National Health Service waiting lists. It represents an attempt by the claimant to escape from what she saw as the almost unbearable consequences of what she says was unacceptable delay by the National Health Service (“the NHS”) in providing her with hip replacement surgery. She seeks to compel the authorities to reimburse her for the cost of appropriate treatment that in the event she obtained in France. If the claimant is correct the implications for the NHS and its patients may be profound.

2

Essentially the claimant's case is founded on the assertion that she has enforceable rights under European Community law to be treated in another Member State if the NHS is unable to provide appropriate treatment within the timescale indicated by the patient's medical condition and medical needs. Specifically she relies upon Article 49 (previously Article 59) of the European Community Treaty and, separately, upon Article 22 of Council Regulation No 1408/71.

3

I shall have in due course to consider both provisions in more detail. For the moment it suffices to indicate that the effect of Article 22 is to confer a right to be treated in another Member State at public expense:

“where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.”

4

The Secretary of State for Health has always accepted that, in certain circumstances, Article 22 is engaged. The mechanism by which a NHS patient invokes her rights under Article 22 is by means of an application for a Certificate in Form E112. However the Secretary of State has always consistently maintained that Article 49 has no application in such a case.

5

The Department of Health's understanding of the position under Community Law (particularly in the light of the European Court of Justice's decision in Geraets-Smits v Stichtung Ziekenfonds VGZ, Peerbooms v Stichtung CZ Groep Zorgverzekeringen ( Case C-157/99) [2002] QB 409) is set out in an internal ‘Background Note – “Undue Delay”’ which I should set out in full:

“The Decision of the European Court of Justice (ECJ) in the case of Geraets-Smits/Peerbooms did in fact endorse the need for prior approval under the E112 arrangements in terms of control and management of healthcare and budgets across the EU.

In considering the national legislation of the Netherlands which was at issue in this case, the ECJ said that Netherlands healthcare system, which required prior authorisation by the patient's sickness insurance fund for treatment in other EEA countries, was contrary to the freedom to provide services provisions of the Treaty Establishing the European Community. However, the ECJ said that, provided certain conditions were met, such a rule was justified in the interests of maintaining the financial stability of the Dutch national health system.

One of the rules of the Netherlands system was that it had to be proved that the patient's medical condition required the service in question. The Court said that was justifiable provided that it was construed to mean that authorisation to receive treatment in another member state may be refused on grounds of necessity only if the same or equally effective treatment can be obtained without undue delay in the home state.

The ECJ did not define what it meant by “undue delay”, by implication leaving that as a matter for national law and practice. The Department of Health takes the view that where an application for treatment is made abroad under the E112 arrangements on the grounds of undue delay, account should be taken of the national targets for waiting times as published in the NHS Plan, and of the individual patient's clinical need. Ministers stated this publicly last year in answer to a Parliamentary Question.

Patients do not have an automatic right to be referred abroad for treatment on the grounds that treatment could be made available more quickly elsewhere. The E112 procedures published in the leaflet “Health Advice for Travellers” do provide that the recommendation of a UK NHS consultant, rather than a GP, should be obtained. If the wait to see a consultant is in excess of the NHS target maximum outpatient waiting time, or the waiting time for an operation is in excess of the maximum inpatient waiting time for surgery (currently 15 months), this would be prima facie evidence of undue delay.”

6

Publicly the Department's position is explained in two documents. The first is ‘Health advice for Travellers’ last updated on 25 March 2002. The relevant part, in a passage headed ‘Non-emergency treatment in an EEA country: Form E112’, reads as follows:

“Form E111 will not cover you for free or reduced-cost treatment if you are going to another EEA country specifically for medical care, or if you require ongoing treatment for a pre-existing condition. For this, you will need Form E112 which is not issued automatically but requires authorisation from the Department of Health. Unless you have an E112, you will have to pay for the treatment you receive and you will not be able to obtain a refund of the costs.

For pre-existing conditions that will require treatment during your time abroad – eg, blood tests, medication or injections, etc. – apply by letter enclosing details, including dates of treatment, supporting medical evidence from your GP and a copy of your E111 to the following address(es): …

Please note, however, that form E112 is only available where a clear need for on-going treatment is established. The form is not available on a ‘just in case’ basis.

If you need maternity care in another EEA country, write to the above address(es) explaining why you want care outside the UK and enclose a copy of your E111 and evidence from your GP or midwife of your expected date of confinement.

For people going to another EEA country specifically for medical treatment or an operation, the issue of Form E112 will usually only be considered if:

• your UK NHS Consultant recommends treatment in the other country;

• your Health Authority in England and Wales … agrees to meet the cost of the treatment;

• the treatment is available under the other country's health insurance scheme;

• you are entitled to Form E111.

To apply for an E112 in these circumstances, write a letter explaining your reasons for seeking treatment outside the UK. Send this letter to your health authority … together with a letter from your NHS consultant explaining why he or she is recommending treatment in another EEA country. The health authority … should then send your application and their agreement to fund the treatment to the appropriate address.”

7

The other public explanation is in a ‘Draft for consultation’ issued in July 2002 of a document entitled ‘Treating more patients and extending choice: Overseas treatment for NHS patients – Guidance for Primary Care and Acute Trusts’. The relevant part is to be found in paragraphs 1.14–1.18:

“1.14 Direct commissioning does not affect the long-established arrangements for referral of patients under European Community legislation – the so-called E112 system contained in Regulation (EEC) 1408/71. This Regulation contains provisions which permit the referral of patients specifically for treatment for a pre-existing medical condition. Benefits are provided on the same terms as are available to the insured people in the host state.

1.15 Prior authorisation is required where E112 referral is sought. Patients should first seek the opinion of their NHS Consultant and home PCT. Final approval of the Department of Health then needs to be obtained. It should be noted that the Regulations say that authorisation for E112 referrals cannot be refused if the treatment in question is a benefit provided under the state health care scheme of the home country and cannot be provided “within the time normally necessary for obtaining the treatment in question taking account of the patient's current state of health and the probable course of the disease”.

1.16 However, even if the conditions...

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