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Who pays for the trip for a hip?

A senior judge once said that ‘the courts will not rearrange the waiting lists in the hospitals of this country’. But under the pressure of European law, that may no longer be the case. In October, the High Court ruled that patients travelling to another EU state had, in principle, a right to have their costs reimbursed by the NHS.

Patient Yvonne Watts had been told to wait 12 months for a total hip replacement by her local primary care trust. Since this was within the Department of Health’s target waiting time of 15 months, the PCT refused to fund her trip to Lille, France, to have the operation done there at an earlier date.

But Justice Munby recognised that under article 49 of the Treaty of Rome, EU citizens have a right to travel to avail themselves of services provided in other member states. This corollary of the Europe-wide free market in services means, for example, that Irish women cannot be stopped from seeking abortions in the UK. It also enabled Irene Blood to be inseminated with her dead husband’s sperm in Belgium.

The European Court of Justice, whose decisions are binding on English courts, has ruled that the right to travel is not effective unless NHS purchasers support the likes of Mrs Watts. But the court has also taken into account the chaos in national planning and resource allocation likely to be caused by indiscriminate claims for reimbursement. So the patient must show they would have suffered ‘undue delay’ in accessing the same services at home.

In Mrs Watts’ case, the PCT claimed that once DoH targets were met there could be no ‘undue delay’. The judge rejected this as he said the courts were not bound by targets and waiting lists. Instead, they had to consider the seriousness of the patient’s condition and the pain they would endure, and 12 months was undue delay. However, the PCT had made a second, revised offer of treatment two months before the scheduled date of the Lille operation and as Mrs Watts could reasonably have accepted this, the court ruled she was not entitled to the full £3,800 cost of her trip.

The principle remains, however. The NHS now buys care ‘in bulk’ from the UK private sector and from continental providers. Recognition of an individual’s right to reimbursement can only accelerate this process. It contributes to the incipient fragmentation of UK healthcare delivery and the acceleration of a cross-border market — well in advance of the much-feared General Agreement on Trade in Services (GATS) regime.

It also marks a further shift in the role of the NHS from provider to payer, and from employer to regulator.