Waiting list for treatment

Patients should not have to wait longer for treatment than is clinically advised following a ruling today by the European Court of Justice (ECJ) in the case of disabled pensioner Yvonne Watts. The ruling determines that If, due to waiting lists, a procedure or operation which is clinically required cannot be performed within the time considered advisable by the treating clinician then the patient is entitled to seek treatment abroad and to have the cost of that treatment paid for by the NHS.

Legal advice on treatment waiting lists

Yogi Amin of National law firm Irwin Mitchell said Rather than trusts being able to use a blanket fixed waiting time for all patients, they will be forced to assess each patient, who claims the waiting list is too long and seeks treatment abroad, individually. The decision means that the Department of Health must issue clear guidance to health trusts to ensure that a postcode lottery is not created in this area of healthcare. Conflicting local decisions could lead to unfairness.

The European Court drew a distinction between waiting list targets and an appropriate time in terms of clinical need. Just because the NHS was meeting waiting list targets did not mean that some patients were not facing undue delay in receiving treatment. The case therefore has great significance for the whole process of identifying individual clinical need, assessing clinical priorities within a trust and rationalising and providing access to healthcare. It is likely to lead to an increasing number of patients seeking to receive treatment abroad on the basis that their individual clinical need cannot be met by the NHS.

Under existing UK law patients are entitled under the E112 scheme to seek treatment abroad if there is likely to be undue delay in receiving treatment within the NHS. The patient must first obtain prior approval from either their local Trust or the Department of Health who will then meet the costs of treatment abroad.


Mr Amin continued There has been significant investment in the NHS and the Government has taken credit for reducing waiting times. They now face a scenario where we may see more and more people applying to have NHS funded treatment abroad to circumvent NHS waiting lists. In answer to the question: What is undue delay? - Health trusts must now look at the individual patients degree of pain and clinical need before deciding whether or not to authorise treatment abroad.

If a patient decides that they do not want to wait, and their trust refuses to authorise payment for their treatment abroad, then they can challenge the decision through the trusts own complaints route and ombudsman. The patient could also take their trusts decision to the High Court for a Judicial Review. If the NHS pays for patients to travel in this country for treatment then the patient could also try to claim for travel costs abroad.

The decision of the ECJ will now provide guidance to the Court of Appeal who will now have to decide whether or not Mrs Watts should be repaid £3,800 by the NHS in respect of the costs of the hip operation she undertook in France rather than wait for treatment under the NHS.

Background to the treatment waiting time case

Mrs Watts was told that the NHS waiting time for her hip procedure was a year. She asked her Trust to support her application under the E112 scheme. The Trust refused on the basis that her clinical condition was routine and that treatment was available in the UK without undue delay.

Mrs Watts sought judicial review of the decision, was re-examined and re-categorised as a soon patient, meaning that she would be operated on within 4 months. In the meantime, she travelled to France, had the hip replacement operation and then sought reimbursement of the cost of the treatment from the Secretary of State for Health.

At first instance, Mrs Watts failed on the facts on the basis that she was unable to demonstrate undue delay as, when she travelled to France, she was only facing a wait of three to four months for her surgery on the NHS.

When the case came before the Court of Appeal, it was held that the test under Article 22 was essentially one of clinical judgment involving considering the effect of the delay confronting the patient in the individual case and it was not necessary to consider normal waiting times. If such a rule were to apply to a national health service such as the NHS, it would be required to fund treatment abroad of NHS patients without regard to budgetary constraints.

However, the Court of Appeal asked for the matter to be referred to the European Court of Justice for guidance as to how to interpret the EU treaty obligations in the light of UK domestic law. The question whether the NHS was obliged to authorise medical treatment for patients in other member states was referred to the Advocate General who gave his opinion in December and the European Court of Justice has today approved that opinion. The case will now be referred back to the Court of Appeal for a final decision.

Relevant contact - Yogi Amin