Medical treatment obtained abroad more quickly than available in NHS hospital - not entitled to reimbursement for cost of treatment absent undue delay

R (Watts) v Bedford Primary Care Trust and another: QBD (Mr Justice Munby): 1 October 2003

The claimant, aged 72, was in urgent need of hip replacements but was told by the first defendant that she was ineligible to be reimbursed for treatment abroad since she could be treated by the NHS within target times, then one year.

Although that was subsequently reduced to four months she had the operation in France within weeks.

She sought judicial review by way of, among other things, declarations that the decision contravened her rights under articles 3 and 8 of the European Convention on Human Rights, and that by virtue of article 49 of the EC Treaty and article 22 of Council Regulation (EEC) No 1408/71 (as amended), she was entitled to be indemnified for the full cost of treatment abroad.

Richard Gordon QC and Jeremy Hyam (instructed by Leigh Day & Co) for the claimant; Steven Kovats and Nicola Greaney (instructed by Park Woodfine, Northampton) for the trust; David Lloyd Jones QC and Sarah Lee (instructed by by the Solicitor, Department of Health) for the Secretary of State for Health.

Held, dismissing the application, that, although the claimant had no effective remedy under domestic law or the convention, by virtue of article 49 of the Treaty and article 22 of the Council Regulation prior authorisation for treatment of an NHS patient in another member state at the expense of the NHS could be refused on the ground of lack of medical necessity only if the same or equally effective treatment could be obtained without undue delay at an NHS establishment; but that the claimant had failed to show undue delay.