Know your rights: what happens when things go wrong

Sending NHS patients to other EU countries for treatment raises a number of legal and practical issues, writes Trevor Blythe.

Superficially, the commissioning arrangements are no different to those involving NHS contracts or contracts between the NHS and independent healthcare providers, except that the contracting party will be a provider in another EU country with its own legal systems, processes and laws.

This gives rise to a range of legal questions - not least, which country's law will apply to the contract, its interpretation and matters arising out of it - including what happens if the contract is broken.None of this is new:

contracts between bodies in different states are an everyday staple of international commerce, and much can be dealt with in the contract itself.But the current arrangements raise critical issues about patients' rights.

Patients would not normally be party to the commissioning contract itself, merely beneficiaries of it.While UK law permits people to enforce the terms of contracts for their benefit, even though they are not a party to the contract themselves, this right is often expressly excluded by the contracting parties. In most cases, British patients injured as a result of receiving NHS treatment sue the party that has actually caused the harm (for example, the trust or GP) under the law of negligence.

If an NHS patient is sent abroad for treatment, they will enjoy the same rights as any other person who receives treatment in that country.But while most EU countries will probably have a law similar to our law of negligence, it may not be identical.Will a patient who receives 'negligent treatment'have to institute proceedings against a foreign provider in the provider's own country to get redress? If so, they will clearly not be in the same position as an NHS patient whose claim arises from treatment administered in the UK .

Or, the aggrieved patient may view it as entirely a problem for the NHS and consider they should be in exactly the same position as other NHS patients.This would require them finding some cause of action (that is, a legal claim) against an NHS body - which would probably be extremely difficult to do - or the NHS to set up its own procedure for dealing with such claims. In either case, it raises practical issues over access to patient records, taking witness statements, attendance of witnesses and even language differences.None of these is insuperable and it will be interesting to see how the Department of Health elects to deal with them, as indeed it must if patients are to retain confidence in the NHS and enjoy effective redress in case of medical injury.

Trevor Blythe is a partner with the health law group, Beachcroft Wansboroughs.