Vilija Vėlyvytė explains the ‘right to timely healthcare’, which data suggests most people in the UK are unaware of.
The NHS is in crisis. The most recent figures from NHS England show 7.6 million people waiting for hospital treatment, of which more than 350,000 have waited over a year. This is up from 7.2 million a year ago, when Sunak made his pledge to cut waiting times. The backlog is unlikely to clear any time soon as the system remains underfunded and medics are resorting to strikes after years of low pay and poor working conditions. In fact, the numbers are projected to surpass 8 million by summer 2024.
But there may be options, other than private healthcare, for UK patients to avoid long waiting lists. People in the UK have a right to receive timely healthcare and can use this right to get quicker – and essentially free – medical treatment in the EU. But most seem to be unaware of it.
The right to timely healthcare
As part of the Trade and Cooperation Agreement (specifically, its Protocol on Social Security Coordination) governing post-Brexit relations between the UK and the EU, UK residents retain a right, originating in EU law, to receive medical treatment in the EU paid for by the NHS if such treatment cannot be provided by the NHS without undue delay, or, in EU lingo, within a period that is ‘medically justifiable’. The treatment in question has to be sought from a public, as opposed to private, healthcare provider, and the patient must obtain an authorisation from the NHS before receiving it.
If authorisation is granted, the NHS will cover the costs of such treatment. It will pay the health authorities of the country which provides treatment directly and according to the tariff applicable in that country. The patient will normally pay nothing.
Can the NHS refuse to pay?
The important question is: can the NHS refuse to authorise to fund medical treatment in the EU? According to EU law, it cannot if the treatment is ‘medically necessary’ for the patient.
The landmark Watts case, decided in 2006 by the European Court of Justice, illustrates what this means in practice. Mrs Watts asked for an authorisation from the NHS to get a hip replacement in France. Mrs Watt’s request was rejected twice, on the ground that she was already on the waiting list for that surgery to be performed in the UK. Mrs Watts would have had to wait one year for the surgery, a period that was upon appeal reduced to three or four months due to the deterioration in her state of health. Instead of waiting, she proceeded with the surgery in France and sued the UK for reimbursement of costs.
The Court essentially ruled in favour of Mrs Watts. It made clear that where the treatment was necessary based on the clinical assessment of the patient’s condition, the NHS could not refuse to grant authorisation just because that patient was on the waiting list for equivalent treatment in the UK.
There is more. During the UK’s membership of the EU, EU law also provided that in some circumstances patients were not required to ask for authorisation at all. If the treatment sought did not involve hospitalisation, was not highly specialised or otherwise cost-intensive, UK residents could obtain such treatment in any EU member state and reclaim the eligible costs from the NHS upon return. According to the EU Directive on Patients’ Rights, this route could be used to fund either public or private healthcare, but the reimbursement was capped at the cost of equivalent state-provided treatment at home.
The impact of Brexit
The Directive route ended with Brexit. This has had a significant impact on patients who travel to the EU for NHS-funded treatment every year. Before Brexit, most of them did so via the Directive route, possibly because it offered treatment options without the need for prior authorisation. Now, anyone travelling to the EU with the purpose of receiving medical care has to obtain an authorisation from the NHS.
The loss of the Directive route is not the only complication post-Brexit. As pointed out above, while the UK was in the EU, refusals by the NHS to authorise treatment abroad were subject to review under EU law. And that law required that the relevant healthcare authorities focus exclusively on the medical needs of the applicant (as in Watts) when making authorisation decisions.
That is no longer the case. Neither the NHS authorities, nor UK courts, are obliged to follow pre-existing EU law on this matter. Considering this, the NHS may plausibly take a position whereby the waiting time for treatment in the UK will be deemed ‘medically justifiable’ if it does not exceed the waiting time targets set by the NHS, even where those targets lag behind their EU equivalents.
People do not know their rights
However, the main problem with the right to timely healthcare is not Brexit. Rather, it is the fact that UK patients are not aware of this right.
NHS data suggests that its approach to the granting of authorisations has not become more restrictive after Brexit: the rate of success remains low but largely the same.
What is, however, staggering is the gap between the number of people seeking medical care abroad and those doing so (or attempting to) via the NHS. The most recent data provided by the Office of National Statistics shows that an estimated 234,000 people went abroad for medical treatment in 2021, 152,000 of whom went to EU countries. Yet only 301 people applied for NHS authorisation to get treatment in the EU that year (75 authorisations were granted).
Before the end of the transition period, in 2020, that number was larger – 3,290 applications (with 1,594 approved) because the more popular, Directive route was still available. Still, it is a small number compared to over one hundred thousand people seeking treatment in the EU at their own expense every year.
Why would someone choose to pay out of pocket instead of getting the same or similar medical care in the EU for free (or at low cost) on the NHS? The obvious answer is they would not, unless they were not aware of the NHS option. This is exactly what the data suggests: people do not appear to know their right to seek timely healthcare in the EU via the NHS.
By Dr Vilija Vėlyvytė, Lecturer in Law, University of Reading.