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 (NHS) of Great Britain.
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, and 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 of the setback.
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 rendered 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, the Court 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 that:
“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, 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, while also holding that:
“[T]he special nature of certain services does not remove them from the ambit of the fundamental principle of free movement.”