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Finally decided within the European Court Of Justice (COJ), this protracted and game-changing case determines well the principle of unreasonableness, whether individually or in this instance, as exercised through the actions (or inactions) of the National Health System of Great Britain (NHS).
When diagnosed as having severe osteoarthritis in both hips, an elderly lady was duly assigned a slot in a typically lengthy waiting list, on the provision that her operation would at least begin inside a twelve-month period, but that no other adjustments could be made under the existing policy framework.
Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself, before claiming back those costs under the umbrella of art.49 of the EC. When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless.
During the period between the successful operation and her application for authorisation, the patient’s condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately, this still left her unable the receive the care (and ultimately adequate pain relief) she needed, and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.
When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights, the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court, who themselves referred it to the COJ. There, after much scrutiny and comparison with similar EU cases, it was held that any refund issued in respect of treatment sought in another Member State, did not contravene s.152(5) of the EC which provides:
“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”
And furthermore, that any excuse offered with regard to waiting times and the limitations of such healthcare provision, failed to satisfy the individual rights offered under art.49 of the EC.
“[T]he national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability, which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history…”
“Considerations relating to the management of waiting lists can only justify a refusal to receive hospital treatment in another member state if those waiting lists are managed in such a way that they take the individual medical needs of patients sufficiently into account and do not prevent treatment being provided in another member state in case of urgency.”
“The fact that , because the hospital treatment in the national health service in question is free of charge, the legislation of the competent member state does not include a tariff for reimbursement, does not preclude the application of the provisions of articles 22(1)(c)(i) and 36 of Regulation No 1408/71.”
“[A] patient who was authorised to go to another member state to receive there hospital treatment or who received a refusal to authorise subsequently held to be unfounded is entitled to seek from the competent institution reimbursement of the ancillary costs associated with that cross-border movement for medical purposes provided that the legislation of the competent member state imposes a corresponding obligation on the national system to reimburse in respect of treatment provided in a local hospital covered by that system.”