Nasty side-effects of EU treatment

Sending British patients to be treated in Europe is presented as a miracle cure for the ailing NHS. But those patients could be entering into a legal minefield, writes Penny Lewis
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The Independent Online

Before patients travel to Europe for their hip-replacement operations, they should book an extra seat on the plane for a lawyer. They may need one. Alan Milburn's plans, unveiled on 15 October, allow the first groups of British guinea pigs to be sent abroad for treatment by Christmas. Unfortunately, legal side-effects could undermine the Health Secretary's miracle cure.

The main political parties agree that hospital waiting-lists must be slashed. This March, more than one million people were waiting to be admitted as in-patients. The salient issue is not merely numbers but how long people remain on the list. Forty-three thousand have been in limbo for over a year. The July 2000 NHS plan committed the Government to tackling waiting-times, an objective highlighted by the Health Secretary shortly after the election. However, even though additional funds have been assigned by Tony Blair, the deficient infrastructure means that the improvements will take years to come on stream. In fact, a report by the Audit Commission, published at the end of last week, revealed that waiting-times for patients in hospital accident and emergency departments have become longer in the past few years, despite the extra funds put into the health service. Beds, doctors and support staff seem to be in short supply.

Meanwhile, a recent European Court decision, BSM Geraets-Smits vs Stichting Ziekenfonds, increased the momentum for reform. Two Dutch claimants treated abroad were refused reimbursement of costs by their sickness insurance funds. In both instances, it was said that treatment was no better than in Holland. The court found in their favour and held that the right of freedom to provide services, enshrined in the European Convention on Human Rights, includes medical "activities". Dutch rules stipulated that treatment elsewhere must be "necessary", as well as of a certain standard. Crucially, the court said that if someone is denied "the same or equally effective treatment without undue delay" at home, they should be entitled to seek care abroad. The Government here recognises that the case sets a dangerous precedent.

Milburn's blueprint involves block purchase of services. British patients already have access to foreign medical services on an ad hoc basis. Emergency treatment is provided in Europe with form E112, non-emergency care by Form E111. This means that British citizens are already entitled to free health care outside the UK in a crisis or if specialised treatment is unavailable.

If there is capacity in Europe, there must be compelling reasons not to take advantage of facilities. After all, doctors practising medicine in the EU are qualified to work here without taking additional exams, even in English.

The contingency plans are of particular interest to the shadow Health Secretary, Dr Liam Fox, a qualified GP. A Conservative spokesman said the party would be "posing questions such as: what arrangements will be in place for payment? What criteria will ensure standards of treatment are acceptable? And, in the unfortunate event of a problem, what form of redress will there be?"

As a monopoly provider, the NHS has been reluctant to use external resources. Last year's concordat with the private sector was a landmark development. Moreover, when Mr Milburn's proposals were published, there was concern that fresh legislation would need to be introduced to authorise treatment abroad on a grand scale. It appears not to have been necessary.

However, the less obvious complications in foreign medical treatment need to be carefully thought through. One important issue relates to post-operative problems. Who is responsible for remedial treatment, and will the NHS or foreign hospitals be liable for mistakes? The normal rule is that the act of negligence gives rise to a cause of action. Accordingly, claims must be brought in the jurisdiction where treatment was provided. This may mean two sets of proceedings. If two hospitals treat patients, apportioning liability could be a nightmare.

Experience shows that clinical negligence claims are endemic. The National Audit Office (NAO) recently reported a £3.9bn reserve for outstanding clinical-negligence claims in England. This accounts for 23,000 live cases and expected claims. Around 10,000 new claims were received in 1999/2000. The report found that legal costs exceeded damages in over 44 per cent of cases, and settlement took an average of five and a half years. The NHS not only is legally liable for its employees, but also handles claims. A dedicated division, the NHS Litigation Authority, oversees nearly half of them and influences conduct of the defence by specially selected solicitors. Although not perfect, the system is fairly sophisticated.

The area of foreign claims is a potential minefield. Frances Swaine is a partner at the clinical-negligence firm Leigh Day and an executive member of the Association of Personal Injury Lawyers. She says that "anyone injured in a European country must abide by the legal rules of that country, instruct lawyers in a foreign language, and ensure that they keep to the time limits. This will be quite difficult for many people." Often, the solution is to retain English law firms as intermediaries, incurring an extra layer of cost.

In England and Wales, the standard for establishing liability is the Bolam test. It affords a defence when a clinician "has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." Ms Swaine points out that there are local variations in laws, damages awards and procedures. Another practical pitfall is limitation. Under the Limitation Act 1980, claims here must be made within three years of an injury or three years from the date the claimant knew they had suffered an injury. Tighter European deadlines could lead to claims being time-barred.

Dr Jerry Lewis, who frequently acts as an expert witness in clinical-negligence cases, questions whether other legal systems have as effective procedures for handling claims. Reforms to the civil justice system, in particular the introduction of a "pre-action protocol", have simplified procedures for bringing claims and have led to a "less confrontational system, where doctors on both sides meet before proceedings are issued, in an attempt to resolve disputes." Patients will want to know how other countries compare.

Ignorance of how to embark on claims abroad and linguistic barriers will surely deter patients from seeking compensation. The NAO already cites ignorance about whether patients qualify for compensation and lack of access to appropriate mechanisms as barriers to claims. The foreign dimension must complicate matters further.

These factors apart, British patients face practical obstacles. Money could be the biggest headache. Access to justice was improved by funding reforms – for example, by allowing "no win, no fee" agreements. Nevertheless, the NAO confirms that most clinical-negligence claims are financed by legal aid. A 250-strong panel of law firms has full franchises to conduct claims funded by the Legal Services Commission, which replaced the Legal Aid Board in April.

The LSC confirms that funding does not extend to foreign litigation, although there is a procedure whereby it can apply for money from certain other European countries. Such funds might not be as generous as in Britain. And while France and Spain subscribe to this system, Germany, mooted as a destination for patients, is not party to the arrangements. The LSC recommends that enquiries are made to the embassies of countries not participating in the agreement.

With no public funding, aggrieved parties will need private funds or insurance to bring claims. Legal-expenses policies are likely to have clauses excluding overseas claims. This leaves after-the-event cover. Another consideration is whether foreign hospitals are worth powder and shot. The NHS has deep pockets and is legally liable for compensation claims brought against its hospitals.

Professor Liam Donaldson, the Chief Medical Officer, has invited views from the public and NHS staff on how to reform the clinical-negligence system. A White Paper is expected next year. This may be the appropriate forum in which to review the overseas trials.