Trevor Blythe on reimbursing patients for overseas treatment

Published: 20/11/2003, Volume II3, No. 5882 Page 33

Last month, the High Court issued its judgement on Watts v Bedford primary care trust. This case concerned a patient's determination to seek treatment abroad when faced with delays in the UK. The case was brought by Yvonne Watts, a 72-year-old woman who needed a hip replacement. She sought prior authorisation from Bedford PCT for treatment in Belgium.

The PCT refused, basing the decision on its understanding of the medical opinion, EC law and the Department of Health's published guidance. The PCT understood Mrs Watts' case to be 'routine' and believed it could refuse authorisation because there was no 'undue delay'.

In January 2003 Mrs Watts consulted a surgeon in France who felt that the operation should be carried out by the middle of March 2003. A provisional booking was made for early March.Mrs Watts was seen and reappraised in the UK later that month and, as her condition had deteriorated, she was re-categorised as a 'soon' case. This meant she should therefore be treated in the UK within three to four months (in April or May 2003).

However, Mrs Watts was not prepared to wait and went ahead with the operation in France on 7 March, seeking to recover the costs afterwards. She served proceedings against both the PCT and the health secretary.

In his judgement Mr Justice Munby accepted some elements of Mrs Watts' case in principle, but did not reimburse her for the costs of the operation. Key aspects of his decision are that a policy of 'prior authorisation' for treatment overseas is justifiable under EU law if there is sufficient need for it (ie to ensure a planned, efficient and financially stable NHS), as long as:

the criteria involved are objective and non-discriminatory and are known in advance;

the process is easily accessible and administered objectively and impartially within a reasonable time; and nrefusals can be challenged in the courts or through some other independent process.

Although 'prior authorisation' may be justifiable, the judge was critical of both the DoH process and the clarity of its published material (although the DoH said it had already begun a review of these areas).

The judge confirmed that authorisation for treatment can be withheld if treatment is deemed unnecessary (by appropriate professionals) or it can be provided 'without undue delay' in the UK.

However, what constitutes 'undue delay'must be decided in relation to the facts of the individual case. In Mrs Watts' case, the facts suggested that, once her condition had deteriorated, a delay of two to three months would not have been 'undue' (although a delay of 12 months was) and her claim for repayment failed.

The ruling confirms the legality of 'prior authorisation' in certain circumstances, but is critical of the way in which it has been communicated and applied by the DoH. The DoH had already begun a review of its 'prior authorisation' process and guidance materials, but this ruling may force it to expedite the process.

The judgement also means that both the health secretary and PCTs must be able to demonstrate that they have made impartial, objective decisions on requests for treatment abroad.

As a result, they should now be considering the way they form and communicate the criteria they use, conducting an analysis of potential risks at every stage to ensure that they do not leave themselves open to legal challenge.

Finally, it is now clear that any refusal of 'prior authorisation' cannot be made solely on the grounds that any delay is consistent with national waitinglist targets. The judge acknowledged waiting times as a factor which PCTs ought to take into account, but they are not the absolute arbiter of what is (and is not) 'undue delay'. l Trevor Blythe is a partner at Beachcroft Wansbroughs and leads its health and social care division.

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