Case digest

Public law:

NHS delays and reimbursement of the cost of a foreign operation R (On the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health (2003) QBD 1/10/2003

Mrs Watts was 72 and had osteoarthritis in both hips. She was in constant pain and required two walking sticks to mobilise. She was seen by a consultant in the UK in October 2002 who indicated that she required bilateral total hip replacements but that she would have to wait approximately one year for the operation, if performed by him in her local hospital. Mrs Watts asked the Primary Care Trust (PCT) to authorise the bilateral hip surgery in France. Article 22 of Council Resolution No. 1408/71 conferred a right for the patient to be treated in another member state at public expense where such treatment was not available within the time normally necessary for obtaining the treatment in the member state of residence. This right is invoked by an application for an E112 certificate.

This procedure allows for treatment to be made abroad on the grounds of undue delay, where recommended by an NHS UK consultant. This procedure requires prior authorisation from the PCT where the claimant is ordinarily resident and by the Department of Health. It had to be shown that the claimant’s medical condition needed the service in question. The term “undue delay” is not prescribed but the Department of Health took the view that account had to be taken of both the patient’s clinical need as well as national targets for waiting times, as published in the NHS Plan (July 2000).

The PCT turned down the request to fund the treatment overseas on the grounds that Mrs Watt’s case was routine and that the PCT would be able to offer the surgery within the government’s 12-month inpatient waiting-time target so that treatment would be obtained in the UK without undue delay.

In February 2003, Mrs Watt’s was reassessed as a “soon” case meaning a wait for surgery of between three and four months. A month later, Mrs Watt’s had her right hip replaced in France at a cost of about £3,900. She claimed to be entitled to reimbursement of that cost, seeking to rely on Article 3 (prohibits torture, inhuman or degrading treatment), Article 8 (right to a private and family life) of the European Convention on Human rights, the stated Article 22 and Article 49 of the European Community Treaty. Article 49 provides: “Restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of member states who are established in a state of the Community other than that of the person for whom the services are intended.”

It was accepted that she had no remedy in domestic law as the NHS can determine what services it can provide within their resources, as they can never achieve a fully comprehensive healthcare system.

HELD:

Any reliance on Art. 3 and Art. 8 was precluded by North West Lancashire Health Authority v A (2000) 1 WLR 977, which held that Art. 8 imposed no positive obligation to provide treatment and that Art. 3 was concerned with positive conduct with a high degree of seriousness and opprobrium. It did not apply to mere policy decisions on the allocation of resources;
Art. 49 EC and Art. 22 of the regulation were separate provisions. The fact that domestic legislation was consistent with Art. 22 did not mean that it was necessarily consistent with Art. 49. Art. 49 and Art. 22 served fundamentally different purposes. Art. 49 was directed to the prohibition of restrictions on the freedom of those who provided services, rather than to the protection of those for whom the services are provided. Art. 22 was a social security provision whose fundamental purpose was to safeguard the interests of the insured person who travelled abroad to obtain treatment, but which limited the right to do so at public expense to the situation where the person cannot be given treatment within the time normally necessary for obtaining treatment in the member state of residence, taking account of his current state of health and the probable course of the disease;
The provision of healthcare under the NHS did fall within the scope of Art. 49. Medical and hospital services that were in fact provided to and paid for by an UK patient in another member state did not fall outside the scope of Art. 49 and Art. 50 EC merely because the patient was a NHS patient and the costs were to be reimbursed by the NHS. Art. 50 provides that services mean those that are normally provided for remuneration including professional activities. Case C-385/99 Muller-Faure and van Riet v Onderlinge Waarborgmaatschappij Oz Zorgverzekeringen (2002) upheld;
A national system, which made reimbursement subject to prior authorisation and other restrictions created a barrier to and restricted freedom to provide services in a manner, which required to be justified under Art. 49. Prior authorisation could be justified if it can be shown (i) to be necessary in order to provide and maintain an adequate, balanced and permanent supply of high-quality NHS services or to avoid the risk of undermining the financial balance of the NHS; (ii) it must meet the requirements of objective, necessity and proportionality; (iii) it can be shown the refusal to grant prior authorisation is based on the concern of logistical or financial wastage resulting from hospital over capacity caused by large numbers of NHS patients deciding to go abroad for treatment. However, restrictions that go beyond what is necessary to avoid such wastage or where the NHS cannot provide the relevant treatment without undue delay are not justified. Consideration of NHS waiting times and waiting lists was not irrelevant when assessing whether a patient was faced with undue delay but was not determinative;
The PCT was wrong to conclude on the basis of normal waiting list times that Mrs Watts would not suffer undue delay if she waited one year for her operation as she was in constant pain, which severely hampered her mobility. Had she not been moved to a “soon case” she would have been entitled to reimbursement of her costs as Art. 49 would have been triggered;
After the reassessment in February 2003, the PCT agreed to provide Mrs Watt’s with surgery in April or May 2003. That was a relatively short period and could not be described as “undue” and so the case based on Art. 49 failed;
The test the patient had to surmount under Art. 22 of the regulation was significantly higher than that under Art. 49 EC. Member states are entitled to refuse authorisation under Art. 22 notwithstanding a waiting list for the treatment, provided that the length of the waiting time reflects appropriate clinical priority for patients in need of such treatment and provided that any decision refusing authorisation takes account of the patient’s needs and medical condition. The PCT properly applied that test of its consideration of Art. 22 and was entitled to conclude that the treatment could be supplied in time to be effective;
The materials published by the Department of Health as to the procedure an applicant for authorisation under Art. 22 should adopt fell short of the requirement for a procedural system, as it lacked clarity and was not a system that was easily accessible;
Mrs Watt’s succeeded in demonstrating that the secretary of state was wrong in his view that Art. 49 was not applicable in such a case and in his over-restricted view as to the ambit of any rights conferred on NHS patients by Art. 49 but she failed on the facts.

Claim dismissed.

Private law:

Clancy v Clancy (Chancery Division Judgment 31 July 2003) (The Times 9 September 2003)

A will could be valid even if the testator did not have testamentary capacity when it was signed but where it had been properly drawn in accordance with instructions and the testator had the capacity to understand they were executing a will and believed it had been prepared in accordance with their instructions.

Ivy Clancy made her will on 28 March 2000 and died two days later. The defendant was her son, Edward Clancy, the sole executor and beneficiary. Edward’s sister, Imelda Clancy, challenged the will on the grounds that Ivy had lacked testamentary capacity and did not know or approve of its contents. Mr Justice Rimer held that Ivy did have testamentary capacity at the time she gave instructions to her solicitor for the will to be drafted and that the will that she had executed, and in respect of which probate had been obtained, was one that accurately reflected the simple instructions given. It was accepted, however, that Ivy did not have testamentary capacity at the time of execution of the will, which was three months after she gave the instructions. At the time of execution, Ivy was extremely ill, had been heavily sedated and appeared to have been in a lot of pain. The will was valid because Ivy had believed that her solicitor had properly carried out her instructions in preparing a will, which gave effect to them and in signing the will she accepted the document carried out those instructions. The principle was based on dicta in Parker v Felgate (1883) 8PD171.

The will for which Ivy had given instructions was a simple one that she had seen in draft before and expressed her satisfaction with just four days previously. It is unclear how far the Parker v Felgate principle would be extended in a case of a more complex will.

Pesticcio v Huet, Abbey National plc & Niersmans (unreported; Chancery Division, 11 April 2003)

This concerned the capacity to make a valid lifetime gift and if a lack of capacity to make a gift rendered it voidable or void.

The case concerned a gift of the family home in Cardiff by Bernard Pesticcio to his sister, Maureen Niersmans. Proceedings were brought by Donald Pesticcio in the name of his brother, Bernard, who as a result of severe meningitis contracted from childhood, had a reduced mental capacity. Bernard had lived with his mother, Mary Pesticcio, and they cared for each other. Following the death of Mary’s husband and Bernard’s father, Mary inherited the family home in Cardiff, which she then gifted to Bernard, clearly with the aim of providing him with a home for the rest of his life. Bernard was very ill in 1997 and it appeared that he could not return home and continue to care for his mother. He executed an enduring power of attorney in favour of Maureen in October 1997 and in February the following year he gifted the family home to his sister.

It was clear from the evidence presented to the court that both Bernard and his mother wanted the property to be given to Maureen so she could provide a home for Mary for the remainder of her life. Maureen sold the property in 1999 as her mother had moved into a nursing home.

There were some rather unusual facets to the case in that counsel for Bernard had expressly conceded that the effect of establishing lack of capacity would be that the gift would be voidable rather than void. Mr Justice Neuberger determined, with some regret, that it was therefore too late to raise the contention that Bernard’s lack of capacity would have had the consequence of making the gift void but commented that had he not felt so constrained to hold Bernard’s counsel to his earlier election, he felt there would be good authority to suggest that on a finding of lack of capacity to make the gift, the gift would have been void and title to the house would simply not have passed to Maureen. The judge approved Mr Justice Rimer in re Morris deceased as support for this contention. In that case, it was held that although a contract is voidable for lack of consideration, a gift would be void for lack of capacity.

The relevance of this case is particularly significant. On the basis that a gift is void and not voidable, it is treated as never having happened and this has a number of implications, for example, in inheritance tax terms, that the seven-year period will never have started to run.

Public law case digest compiled by Caroline Bielanska, solicitor, TEP, and freelance consultant. E-mail: caroline.bielanska@ntlworld.com Private law case digest compiled by Julia Abrey, partner at Withers LLP. E-mail: julia.abrey@withersworldwide.com