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NHS funding for treatment in Europe: Your rights as an NHS patient

You have the right to apply for heathcare in any EEA state you choose, funded by the NHS,  but you must comply with certain requirements to qualify for NHS funding of your   treatment. These requirements include:

  • You must be a UK resident
  • You must be eligible for state funded healthcare services in the UK
  • The treatment must be medically necessary
  • The treatment must be funded in the UK under normal circumstances. (You cannot go abroad for a treatment that would not normally be available under the NHS).
  • The treatment must be available to an acceptable and safe standard in the country of your choice
  • The treatment, clinic and trip must not pose an undue risk to your health

Your local health commissioner, as part of your local Primary Care Trust (or health board in Wales, Scotland or Northern Ireland), has the right, on behalf of the NHS, to refuse to authorise treatment if these conditions are not met, although the grounds for refusal are limited and you have the right to appeal any decision that is made by your local commissioner.

The case of Yvonne Watts
Mrs Yvonne Watts paid £3,900 for a private hip operation in France in March 2003 after she was put on a year-long waiting list by the NHS and refused authorisation for NHS funded treatment abroad. Her subsequent court battle, played out in the UK courts and in the European Court of Justice, acted as a catalyst that led to clarification for NHS patients seeking authorisation to have medical treatment abroad.

Background to the case
Mrs Watts, who was told by an NHS consultant that she needed a double hip replacement operation in September 2002, was informed that the waiting time for this treatment was a maximum of 12 months within the NHS in the UK. Mrs Watts applied to her primary care trust for authorisation to have the treatment done elsewhere in Europe but was refused. When her consultant agreed that her medical condition had deteriorated in January 2003, making surgery more urgent, she applied again for authorisation but was again refused.

After going ahead with a private hip replacement in March 2003, Mrs Watts then took her case to the High Court in the UK, who ruled that it was permissible in principle for someone who experienced ‘undue delay’ when waiting for surgery within the NHS to be able to seek medical treatment abroad, with funding provided by the patient’s NHS primary care trust.

The case brought to the European Court of Justice did not consider the issue of ‘undue delay’ as a new issue; it is more accurate to say that it re-iterated previous cases of undue delay in its ruling. This stated that the UK Healthcare System (i.e. the NHS) did not have the correct administrative procedures in place to consider the case appropriately. Although it did not define ‘undue delay’, the ECJ clarified that the competent authority did not have a right to refuse approval for treatment elsewhere in the EEA if the treatment was not available in the home state within a medically justifiable period of time.

The key point that this ruling clarified was that any delay in treatment beyond the timing recommended by the patient’s doctor could be considered an ‘undue delay’. Artificial waiting list limits set by the government could not be used by primary care trusts to refuse authorisation for treatment abroad. The European Court of Justice did not rule that Mrs Watt’s costs should be reimbursed, however.

The implications of the Watts’ case

  • The ruling confirmed that the NHS in the UK should agree to reimburse the cost of treatment abroad for a patient who is unable to access treatment within the NHS within a reasonable time. The time limit is that judged by a medical specialist, not an arbitrary target set by a primary care trust or the UK government.
  • The ruling paved the way for the generation and adoption of the Directive on Cross Border Healthcare, which clarifies the rules that govern how patients from different EU Member States can travel to other Member States for essential medical treatment.

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