NHS may face health tourism bill after Euro ruling

NHS patients must be reimbursed for medical treatment abroad if they face an "undue delay" for surgery at home, European Court judges ruled today.

The verdict came in a case brought by 74-year-old grandmother Yvonne Watts, who defied the NHS to have a £4,000 hip operation in France despite being warned that Bedford Primary Care Trust would not authorise payment.

Today, the European Court of Justice confirmed that, under EU rules on free movement to provide services, one EU healthcare system must pay the bill if a patient is obliged to look elsewhere in Europe for treatment because of hold-ups.

But the judges did not award Mrs Watts her £4,000 back - they said it was up to the domestic courts to decide if, in her case, she had faced an "undue delay".

The case is the first of its kind involving the NHS to be challenged under EU law.

Mrs Watts went to court after returning from her hip operation in France to face the refusal of Bedford Primary Care Trust to cover her costs.

The Trust had insisted the three- to four-month wait for an NHS hip replacement did not amount to the "undue delay" which would warrant reimbursement of her foreign costs.

But today the European judges said the decision on what amounted to an "undue delay" should not be based on either National Health Service waiting lists or Government NHS targets.

The decision was to be based entirely on the individual patient's medical condition and circumstances.

Now it will be up to British courts to reconsider the situation of Mrs Watts and decide if she gets her £4,000 back.

Mrs Watts had originally been told she faced a waiting time of one year for a hip operation. She then saw a French consultant who advised her the need for treatment was becoming more urgent due to her declining health.

A few weeks later she saw a British consultant, who recommended that she be moved up the NHS waiting list to receive surgery within three or four months.

But Mrs Watts wanted even swifter treatment abroad and asked the Trust to authorise such treatment.

When authorisation was refused she went to France anyway, receiving the necessary surgery in Abbeville just one month later.

The Department of Health had argued in court that if all NHS patients were guaranteed reimbursement of their medical costs when they opted for treatment abroad, it would seriously undermine the NHS system of administering medical priorities through waiting lists.

The result, claimed the Government, would be the diverting of NHS resources to pay for less urgent treatment for those willing to travel abroad, and discrimination against others not willing or unable to go to another EU country for surgery.

Mrs Watts, who has avoided publicity since launching her legal campaign, would not be drawn on a comment about her landmark court victory this morning.

When told of the court ruling, she said from her home in the Queens Park area of Bedford that it was "wonderful" news after such a lengthy legal struggle.

She said: "It is wonderful, after such a long time."

Katherine Murphy, director of communications at the Patients Association, said the case raised important questions about why people felt they needed to travel abroad.

There needed to be less focus on targets and more consideration of a patient's clinical need and their quality of life, she added.

"We must ask ourselves why are people opting to go abroad? Why don't they want to stay with the NHS in this country?

"Things such as deficits really concern patients who are waiting for operations or any form of treatment.

"What this case highlights is that we should be looking at improving our NHS here and making it a service that patients are proud of and want to use.

"I don't think we should always be focused on meeting targets. Mrs Watts was obviously in a lot of pain and her quality of life was obviously affected.

"In this case, her GP should have researched and seen if there was anywhere else in the UK that would have performed this without her having to wait."

She said there were several worries about patients going abroad for treatment, including the cost and the possibility of feeling isolated from friends and family.

She continued: "There are also questions about the after-treatment. What if things go wrong? If somebody has an operation abroad but then needs things like physio, X-rays or other investigations, do they have that treatment here or do they stay abroad?"

Today's judgment said: "The obligation to reimburse the cost of hospital treatment provided in another member state also applies to a national health service which provides such treatment free of charge."

It went on: "In order to be entitled to refuse a patient authorisation to receive treatment abroad on the ground of waiting time for hospital treatment in the State of residence, the NHS must show that waiting time does not exceed a medically-acceptable period having regard to the patient's condition and clinical needs."

The judges said that under EU law, an "E112" scheme allowed a patient to apply for authorisation to travel elsewhere in the EU for treatment.

"That authorisation cannot be refused where the treatment in question is normally available in the member state of residence but cannot be provided there in the individual case without undue delay. The health insurance fund is then required to reimburse the cost of treating the patient."

In Mrs Watts' case, the original diagnosis was that her case was "routine" - meaning a one-year wait for surgery.

Bedford Primary Health Care Trust refused to issue Mrs Watts with an E112 form because they said her treatment could be provided "within the Government's NHS Plan targets", and, therefore "without undue delay".

That timetable was revised to 3-4 months as her health deteriorated, and the Trust repeated its refusal to authorise even swifter treatment available in France.

The judges said that to be entitled to refuse authorisation, the Trust had to establish that the NHS waiting time - based on "planning and management" objectives in the supply of hospital care - did not exceed a period acceptable in the light of the patient's medical condition and "the history and probable course of his illness, the degree of pain he is in and/or the nature of his disability at the time when the authorisation is sought".

The judges added: "In the present case, it is for the referring court to determine whether the waiting time invoked by the competent body of the NHS exceeded a medically acceptable period in the light of the patient's particular condition and clinical needs."