Abstract
European law stipulates that all patients in the European Union (EU) have the right to seek state-funded healthcare in other EU nations as if they were being treated in their home country. This means they should not incur additional costs for their home country’s healthcare system. In cases of clinical negligence, patients are unlikely to bring a successful claim against the National Health Service (NHS). They face additional challenges if they bring the foreign service provider to an English court; they would need to establish jurisdiction, the applicable law, and enforce a successful judgment. The NHS may have to bear the cost of corrective treatment which is unlikely to be fully restorative. Clinicians need to be aware of the law so that they can reach a shared decision with the patient which takes into consideration the risks to the patient and service provision within the NHS.
Introduction
Travelling abroad to receive healthcare is not new. Two thousand years ago, pilgrims travelled from Epidaurus in the Peloponnese, said to be the birthplace and sanctuary of Asklepios, the son of Apollo and god of healing. Medical tourism can be defined as when patients travel overseas, often for considerable distances, to take advantage of medical treatments which are not available or easily accessible (in terms of costs and waiting time) at home. 1 While commonly associated with the rich and resort hospitals, this is increasingly used as a cost-saving measure, with many procedures abroad costing 50% or less compared with the United Kingdom (UK). 2
The UK has the National Health Service (NHS), which guarantees free healthcare at the point of use. Thus the treatments sought privately abroad tend to be those not covered by the NHS, with cosmetic surgery (44%) and dental treatment (32%) the most popular. 2 However, UK patients are also entitled to seek treatment under the NHS in other European Economic Area countries or Switzerland. 3 It follows that in cases of clinical negligence, the NHS may be liable. Where the NHS has been found not liable or where patients paid privately for their care, they face significant challenges in obtaining compensation. This article aims to introduce clinicians to the law governing the options patients have to fund their treatment abroad, and claim for damages in cases of clinical negligence. It also discusses the legal aspects of correcting the results due to clinical negligence under the NHS. Its focus is necessarily on elective medical procedures.
NHS treatment in the European Union
Legal background
The main basis for a patient’s right to obtain NHS treatment in the European Union (EU) lies in article 56 of the Treaty on the Functioning of the European Union:
Within the framework of the provisions set out below, restriction on freedom to provide services within the Union shall be prohibited in respect of nationals of member states who are established in a member state other than that of the person for whom the services are intended.
This principle has been developed by the European Court of Justice (ECJ) in its case law. English courts generally follow the doctrine of binding precedence, where the findings of a higher court on an issue must be followed by all lower courts. As a result, the English courts will be bound to reach a similar decision should a similar issue be brought before them.
The cases of Decker [1998] and Kohll [1998] established that the provision of healthcare services by the state fell within the purview of article 56. They were both Luxembourg nationals, and in Luxembourg patients pay for their treatment first and then obtain compensation from their insurer. Mr Kohll wanted a new pair of glasses and went to Belgium, whereas Mr Decker wanted orthodontic treatment for his daughter and sought this in Germany. These treatments would have been covered under their health service. When their insurer refused to reimburse them, the court ruled that just because a service is connected to social security does not mean it is beyond the grasp of the internal market. 4
However, Kohll and Decker did not address the problem of different states having different healthcare systems. The case of Vanbraekel [2002] established that where differences in compensation exist, the patient should be given the higher level of compensation. Ms Descamps, a Belgian national, applied for authorisation for treatment in France and was refused. She then paid for it herself and took the Belgian insurer to court. The Belgian court agreed that she should have been given authorisation but asked the ECJ to determine the compensation that should have been paid to Ms Descamps. Under both Belgian and French laws, users pay for services and are then compensated by the state. However, under Belgian law, the compensation would be higher than in France. The court ruled that she should receive the higher level of compensation because the prospect of receiving a lower compensation may prove to be a hindrance to the freedom of provision of services. 5
Note that the case law so far has not dealt with a healthcare system which is free at the point of use like the NHS. In the case of Watts v Bedford Primary Care Trust [2006], Mrs Yvonne Watts needed a hip operation, and had applied for authorisation to have it done in France. Her local trust refused, saying it was routine, and that her waiting time met the government targets, but after re-examining her put her on the accelerated waiting list which would have seen her wait 4 months. She went to France, paid for it herself, and took the trust to court to claim compensation. Under French law, she would have to contribute some of the treatment costs herself. She argued that had she received the treatment under the NHS she would have paid nothing. The court agreed, but to the cost that would have been incurred by the NHS. 5
Under EU law, it is the right of any EU national to receive emergency treatment in another EU country, but Vanbraekel [2002] presents an interesting question: should the higher level of compensation be paid if the patient was in another EU country for a reason other than medical treatment? In European Commission v Spain [2010], Mr Chollet was a French national living and insured for medical care in Spain. While on holiday in France, he had to be admitted to a hospital. In France, there is a contributory system, whereas in Spain healthcare is free. The court disagreed with the European Commission and the Advocate General that giving the higher compensation would disrupt the freedom of provision of services in an unforeseen treatment scenario. 5
In any case, EU citizens cannot go abroad for treatment that is not covered by their health service. In Elchinov v Natsionalna Zdravnoosiguritelna Kasa [2010], Elchinov, a Bulgarian national, went to Germany for eye surgery, which was not covered in Bulgaria, and tried to claim the costs based on article 56. The court refused to allow this on the basis that compensation should not exceed the limit of cover of the insurance scheme. 5
Implications for the NHS
In 2011, the EU issued the EU Directive on Patients’ Rights to Cross Border Healthcare, effectively summarising the case law. It explicitly states that patients should not derive a financial advantage from receiving treatment, and reasserts the right of the member states to organise their healthcare system in any way they wish. Based on this and the case law, patients who travel abroad to the EU for NHS treatment would incur a cost to the NHS no greater than that which they would have incurred anyway had they received treatment in the UK.
Going abroad
The UK government has set up a number of schemes to comply with the case law. The NHS Overseas Commissioning Scheme was set up in 2001 to allow Trusts to obtain treatment for their patients overseas. The idea was that patients have the same rights and remedies as patients receiving treatment in the UK including the right for patients to bring the trusts to court as if treatment had been given in the UK. Meanwhile, the contract between the NHS and the overseas hospital provided that the overseas hospital would indemnify the NHS for any payments as a result of clinical negligence. The scheme was withdrawn in 2006 and is currently untested in court. 2
The two current schemes are the S2 scheme and the EU Directive scheme. 6 Patients who wish to go abroad under the S2 scheme need authorisation from the commissioning board before going abroad. The EU Directive scheme allows patients to go abroad, pay for their treatment and then claim the money back from the NHS. Only certain conditions require pre-authorisation. The Department of Health (DOH) recently ran a consultation on this scheme. 7
Clinical negligence
Patients who suffered injury due to clinical negligence and wish to claim must satisfy the legal tests of negligence; they must prove that the accused doctor owed them a duty of care, that he/she was in breach of that duty and that the patient suffered an injury or loss as a result.
Implications for the NHS
It follows therefore that a claim can be brought in England against the NHS provider if it owed the patient a duty of care. This is true under the NHS Overseas Commissioning Scheme but not true in the others. Indeed, the Equality Analysis conducted as part of the consultation process in implementing the EU Directive specifically requests that the NHS Commissioning Board does not invoke the NHS duty of care should it decide to assist the patient in finding a suitable overseas provider. 8
Contracting healthcare on behalf of a patient does not invoke a duty of care, see A v Ministry of Defence [2004]. A’s father was serving in the British Army in Germany, and A suffered brain damage as a result of negligent obstetric care in the German hospital contracted by the Ministry of Defence (MOD) UK. While the German hospital admitted liability, A’s parents believed that the MOD owed A a similar duty of care. The claim failed. Whereas pre-1996 the MOD had their own military hospitals, the court held that since the MOD had closed them down and contracted German providers, they had a duty to exercise reasonable care to procure services and manage their contracts, but not for the treatment of the patient. The court also held that the proper forum for such a claim would be Germany. Therefore a patient is unlikely to be able to bring a claim against the NHS. 9
Additional challenges overseas
Since a claim against the NHS is likely to fail except for treatment provided under the NHS Commissioning Scheme, it is likely that patients would have to bring a claim against the foreign provider. The discussion here will focus on bringing a claim in England. Patients would have to satisfy an English court that it has jurisdiction over the case which would then have to decide on the law applicable to the case. Finally, once the case is decided in his favour, the patient has to consider the enforcement of the judgment.
Jurisdiction
EU law
In the EU, jurisdictional rules are governed by the Brussels Convention of 2000 and the Lugano convention of 1988. The fundamental rule is that persons should be sued in the member state of their domicile, with exceptions only if the case has a particularly close link with a court other than the defendant’s home court. An example given is a hypothetical dispute between two Polish nationals over something that happened in England, with assets based in England. 9 However, there are four underlying objectives to the convention namely legal certainty, strengthening legal protection, sound administration of justice and protection of the weaker party. 9 A claim may potentially be advanced in England based on the fourth principle. Some claims have been brought in England against foreign providers relying on EU consumer contract rules. 2
Outside the EU
Common Law rules apply to non-EU cases. There are a few concepts to be introduced. The first is submission to jurisdiction. When a defendant is served with proceedings and responds in a manner that assumes that the English court has the power to decide the case, then the defendant has submitted to the jurisdiction of the court. They include things such as filing a defence on the merits or applying to strike out a claim, unless the defendants specifically state that they still wish to contest the jurisdiction of the court. This is important because even if the court would not otherwise have had jurisdiction, submission by a defendant confers jurisdiction. 9
Next is the service of proceedings (the delivery of documents relating to court proceedings). The court will only accept service out of the jurisdiction subject to three requirements:
A good arguable case exists. The claim has sufficient merit to justify service of proceedings out of jurisdiction. That the English court is the proper place to bring the claim.
Once the court has agreed to accept jurisdiction and allow service outside the jurisdiction, the defendant may apply to stay the claim on the grounds of forum non conveniens. It means the defendant asserts that there is a more suitable court in the foreign country in which to bring the claim. Note that the forum non conveniens application is separate from the initial application to establish jurisdiction. The onus is on the claimant to prove suitability of the court whereas in a forum non conveniens application, the onus is on the defendant to prove that the court is not a suitable forum. 9
Lastly, the State Immunity Act of 1978 stipulates that a foreign state acting in a governmental or official capacity, called acta iure imperii, is immune from the jurisdiction of the English court, except in the case of death or personal injury, or damage or loss of tangible property. In the case of Littrell v United States (1993), the plaintiff was a member of the United States Armed Forces (USAF) serving in England. He claimed he had received negligent treatment at a military hospital at the USAF base. The court held that the military hospital, as a branch of a foreign state, was acting in its official capacity. 9
Applicable law
After establishing jurisdiction, the court then has to decide on the law which is applicable to the case. For a case that concerns actions that took place abroad English courts will generally apply foreign law for the substantive issues of the case, and English law for the procedural elements of the case. This is important especially for time limitation periods. Applying foreign law will mean applying that foreign time limitation which may be shorter than in England. Meanwhile, the award of damages is generally considered procedural, and English law is generally favourable as the UK does not impose a cap on damages in contrast with some countries which do. 2
Enforcement
After winning a case, the patient needs to be able to enforce the court’s judgment. In the EU, the Brussels convention effectively allows a UK judgment to be enforced across the EU. This is important as while a foreign provider may not have assets in the UK, it may have assets or offices in the EU.
In a non-EU country however, there is very limited scope for enforcement. Part II of the Administration of Justice Act 1920 provides for reciprocal enforcement of judgments in the UK of decisions in certain countries currently or formerly part of the Commonwealth, whereas the Foreign Judgement Act 1933 allows the UK to enter into reciprocal enforcement agreements with other countries. With or without these acts, the patient may need to initiate enforcement proceedings in a foreign court.2,9
In fact, traditional non-EU medical tourism destinations seem hostile to large claims. For example, multimillion dollar awards in India are non-existent and in Thailand there is a statutory cap on awards. In Malaysia and Singapore, it may be difficult to bring a claim because they are doctrinally too deferential to doctors on issues such as standard of care. 10
Treating the results of negligent care
Where there has been clinical negligence, there is often a need for corrective treatment and this treatment is likely to be carried out in the UK and is a cost for the NHS. Patients who seek treatment abroad usually do so by choice, and are likely to be compared with private patients who seek treatment not available on the NHS. While there are no DOH guidelines dealing with the clinical negligence abroad, it is interesting to study the DOH circular in light of the Poly Implant Prothèse (PIP) breast implant scandal. The DOH has issued guidelines saying that the NHS will remove PIP implants but will not replace them in patients who had them implanted privately. As a large number of treatments sought abroad are cosmetic or dental it is likely that these treatments will attract the same stance if they fail. DOH circulars are important in law, as demonstrated by R v North Derbyshire Health Authority (1997) where it was declared unlawful for the health authority to only fund beta interferon to treat multiple sclerosis in clinical trials when a DOH circular asked health authorities to incorporate it into treatment plans. 11
Conclusion
European law stipulates that patients have a right to seek treatment elsewhere in the EU paid for by the healthcare system of their home country. The EU Directive, as interpreted by case law, ensures that the NHS pays no more for it than if the patient sought the treatment locally. Since going abroad is the patient’s choice, theoretically this would lead to decreased waiting times, and greater patient choice and satisfaction.
However, if the treatment is negligent patients would be unlikely to bring a successful claim against the NHS. They will face increased difficulties should they wish to file a claim against the foreign service provider in the UK. Even if they can convince the judge that the English court has jurisdiction, the case may be decided by foreign law and even if successful, enforcing the judgment against the service provider, while simple in the EU, may be difficult outside it. In addition to increased legal costs, these patients may find themselves at a disadvantage because the NHS is likely to fund corrective but not restorative treatment. Clinicians have a privileged position in being able to discuss these issues with patients before they fly abroad, and should take this opportunity to do so.
Footnotes
Conflict of interests
The author declares that there is no conflict of interest.