Christopher Newdick on treatment abroad and the law

Should PCTs be alarmed by the European Court of Justice's ruling on covering the cost of treatment abroad? Christopher Newdick explains

Mrs Watts needed bilateral hip replacements. Bedfordshire primary care trust offered her treatment within a year. Mrs Watts was in her 70s and said the wait was too long. She arranged to receive treatment in France.

Shortly before she departed, on the advice of her consultant, her PCT offered treatment within four months. She refused, went to France and invoiced the PCT for£3,900. The PCT refused to pay as she did not get prior authorisation. The case was referred to the European Court of Justice.

The court said there is no duty to obtain prior authorisation for treatment abroad if patients face an unacceptable delay at home. What is 'unacceptable' is measured according to an 'objective medical assessment' of clinical needs, according to international (not national) standards.

This question will now be taken back to the Court of Appeal to decide whether the four-month wait was 'acceptable'. The question must be answered by reference to Mrs Watts' individual needs. It has nothing to do with normal waiting times in the NHS, nor whether other patients with more urgent needs are waiting longer.

The court said this stems from one of the fundamental principles of the EU: the 'freedom of movement of services'.There was no obligation for them to reach this conclusion. Previously, the court had said public services were excluded from the principle in the interests of stability and fairness. The new approach raises basic questions.

Which treatments will qualify for the right to travel? What is an objective medical assessment of waiting times for obesity surgery, or transsexual surgery? The court is wrong to think 'objectivity' governs the question.

Will this impose undue pressure on the NHS? The court says no; patients who do not face undue delay do not have a right to treatment abroad. But any persuasive doctor could argue the patient needs treatment now. Numbers of patients presenting invoices for care in the EU could escalate.

This will encourage complaint and could destabilise fair and proper use of waiting times. It will help the vociferous and articulate, but who will speak for patients who are elderly, mentally ill or disabled?

PCTs will not respond to them properly if they are devoting disproportionate attention to those who shout loudest.

English courts have the duty to apply these new rules. A liberal approach could seriously distort fair resource allocation. An alternative response is to interpret the European Court's test narrowly. Determining what is necessary according to an 'objective medical assessment' could prove a demanding test. Perhaps, in the absence of the overwhelming support of the international medical community, such a test would not be satisfied.

Arguably, widespread disagreement would prevent an 'objective assessment' of the treatment being available. In this case, the right to treatment elsewhere in the EU would not arise. Of course, this would not apply in every case. Mrs Watts' need for hip replacements was not in doubt. And, at her age, one sympathises that a year's delay was undue.

As waiting times fall, this narrow approach would limit the right to EU care to a small number of cases where well-recognised treatment is subject to serious delay.

And by confining the numbers eligible to travel, it would balance the 'opportunity costs' of treatment in the EU with the interests of solidarity and compassion.

Christopher Newdick is a barrister and a member of Reading University's law school. He is also an honorary consultant to Reading PCT. He is the author ofWho Should We Treat? Rights, Rationing and Resources in the NHS (OUP, 2005).