QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (on the application of YVONNE WATTS)
|- and -
|(1) BEDFORD PRIMARY CARE TRUST
(2) SECRETARY OF STATE FOR HEALTH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Steven Kovats (instructed by Park Woodfine) for the Trust
Mr David Lloyd Jones QC (instructed by the Office of the Solicitor) for the Secretary of State
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Munby :
Permission to apply for judicial review
Other substantive relief
i) The claimant has won on all the legal arguments in relation to Article 49.
ii) The Secretary of State has won on all the legal arguments in relation to the Convention and Article 22: he has also won on the facts in relation to both Article 49 and Article 22.
i) Comparatively little time was taken up either with the human rights issues or with the questions relating to reimbursement.
ii) A certain amount of time was taken up with the facts, in particular in analysing the crucial correspondence.
iii) A significant amount of time was taken up with the legal arguments in relation to Article 22.
iv) Much – indeed much the greater part – of the time was taken up with the legal arguments in relation to Article 49.
Permission to appeal
"IT IS ORDERED THAT
1. The Claimant has permission to apply for judicial review on the European Community law issues only.
2. Declarations be granted in the following terms:-
(1) The decision communicated by the PCT by letter dated 21st November 2002 and endorsed by the Secretary of State was erroneous in law in that it failed to address the relevant questions required to be considered under Article 49 EC.
(2) The decision communicated by the PCT by letter dated 4th February 2003 and endorsed by the Secretary of State was erroneous in law in that it failed to address the relevant questions required to be considered under Article 49 EC.
(3) The provision of hospital treatment by the NHS constitutes the provision of services within Article 49 EC.
(4) Hospital treatment which is in fact provided to and paid for by an NHS patient in another Member State does not fall outside the scope of Article 49 EC merely because the patient comes from the United Kingdom and seeks reimbursement from the NHS authorities.
(5) A national system which, as in the case of the United Kingdom, makes reimbursement of the cost of obtaining hospital treatment in another Member State subject to prior authorisation and other restrictions thereby creates a barrier to and restricts freedom to provide services, in a manner which requires to be justified if there is not to be a breach of Article 49 EC.
(6) By virtue of Article 49 EC, prior authorisation for treatment of an NHS patient in another Member State at the expense of the NHS can be refused on the ground of lack of medical necessity only if the same or equally effective treatment can be obtained without undue delay at an NHS establishment.
(7) A refusal of prior authorisation for treatment in another Member State can be justified if and insofar as it can be shown that such a refusal is necessary to provide an adequate, balanced and permanent supply of high quality medical and hospital services accessible to all through the NHS or in order to avoid the risk of seriously undermining the financial balance of the NHS. It can be justified if the refusal is based on a fear of logistical or financial wastage resulting from hospital overcapacity caused by the outflow from the NHS of large numbers of NHS patients who decide to be treated abroad, but not if the restrictions on the ability to provide services go beyond what is necessary to avoid such wastage.
(8) The fact that the NHS's financial costs may be increased is a consideration of a purely economic nature which cannot justify a restriction on the fundamental freedom to provide services.
(9) When assessing whether or not a patient is faced with "undue delay":
(a) the national authorities are required to have regard to "all the circumstances of each specific case" including the patient's medical condition and, where appropriate, the degree of pain and the nature and extent of the patient's disability; and
(b) although the national waiting time applicable in any particular case is a relevant matter to be considered, it cannot be considered determinative and in many – probably most – cases it is unlikely to be even a significant matter.
(10) In the circumstances of the present case, the period of delay of NHS treatment which is tolerable before it reaches the level of what is 'undue delay', so as to result in a breach of Article 49 EC, is:
(a) a period very much less than the year with which the Claimant was faced by the decision communicated by the PCT (and endorsed by the Secretary of State) by letter dated November 21 2002; but
(b) a period significantly (though probably not substantially) greater than the period of 3–4 months with which the Claimant was faced by the decision communicated by the PCT by letter dated 4 February 2003.
(11) The materials currently published by the Secretary of State as to the procedures that an applicant should adopt to obtain reimbursement under the NHS for medical treatment abroad fall short of the requirement under Article 49 EC to have a "procedural system which is easily accessible".
(12) Under Article 22 of Regulation 1408/71 Member States are bound to grant authorisation only where the treatment cannot be provided within such time as to ensure its effectiveness. Waiting lists and waiting times are of central significance in the context of Article 22 which, although it requires one to take account of the patient's current state of health and the probable course of the disease, primarily directs attention to "the time normally necessary for obtaining the treatment in question in the Member State of residence."
(13) Reimbursement under Article 49 EC is calculated by reference to the legislation in force in the member state of the patient's residence. Since hospital treatment is free at the point of delivery in the United Kingdom, reimbursement by the United Kingdom authorities under Article 49 EC would be at the full cost of the treatment abroad.
3. Save as aforesaid, the application is dismissed.
4. The Secretary of State do pay 35% of the claimant's costs, such costs if not agreed to be the subject of a detailed assessment on the standard basis.
5. There be permission to the Claimant and the Secretary of State for Health to appeal to the Court of Appeal (such permission not to include the PCT which has not applied for permission).
6. Notices of appeal are to be filed with the Court of Appeal within 21 days after the date on which this order is made by the judge.
7. There be a detailed assessment of the Claimant's publicly funded costs."
MR JUSTICE MUNBY: I now hand down in open court the supplemental judgment in the case of R (on the application of Watts) v Bedford Primary Care Trust setting out my decision in relation to costs, and also setting out in paragraph 216 the form of order which I propose to make.