The Dekagram: 21st August 2023

What do you do when you realise you’ve made a mistake as to the value of a claim? This was the dilemma facing the claimant in Francis v Surrey & Sussex Healthcare NHS Trust [2023] 7 WLUK 570, whose claim for loss of earnings could not be justified on the evidence. In September 2021 the claimant filed and served a Schedule of Loss claiming full loss of earnings to retirement age, with no discount for residual earning capacity, but by March 2022 she had returned to work, as her witness statement served in February 2023 made clear. Her claim for loss of earnings reduced as a consequence from around £500,000 to about £200,000. In March 2023 she served a revised Schedule of Loss, but the defendant, irritated perhaps by the fact that at a CCMC in January 2023 she had relied on the original Schedule when she ought to have known that by that time it was inaccurate, applied to strike out the claim in its entirety, alternatively to strike out the claim for loss of earnings.

Bagot J found that the court and the defendant had been misled by the original Schedule, and that had the latter known of the true value of the claim it might have attempted to settle it. Furthermore, the claimant and her solicitors had taken a recklessly cavalier approach to the truth of the claim, even after the fact that it could not be sustained had been pointed out to them. The Schedule ought to have been adjusted downwards as soon as the claimant became aware that the original sum claimed could not be supported. Things often changed in the course of litigation, and the court encouraged parties to recognise that and act accordingly. However, here, the claim had been dramatically inflated, and that was compounded when the claimant continued in full knowledge of the error. It was appropriate therefore to strike out the claim for loss of earnings.

This cautionary tale may be seen as a double-edged sword for defendants however; it is a useful example of a head of loss being struck out for abuse of process, but it also indicates the appropriate course to be taken when a claimant discovers that his or her claim is unsustainable. It is of course perfectly permissible for a claimant to file and serve an updated Schedule of Loss which reduces the value of the claim, even where there is no permission to do so, and in these circumstances this is the proper course. It is therefore not open for defendants to object to the service of such a Schedule, although in our experience some do. The decision in Francis makes it clear (if such clarity were needed) that any such objection is misconceived.

Accessing Healthcare Abroad: New Guidance Now in Place

On 18^th August the Department of Health and Social Care’s final policy on funding healthcare abroad came into effect. The policy outlines the factors the Secretary of State will consider when making funding decisions for care abroad where exceptional circumstances may apply.

Essentially, from 18^th August 2023, the Secretary of State will have the power to authorise payments for healthcare outside the scope of a healthcare arrangement in countries with which we have a reciprocal healthcare arrangement in place. This is subject to the condition that the payment is justified by ‘exceptional circumstances’.

International Healthcare Arrangements

The UK has several international healthcare arrangements with partner countries, generally referred to as reciprocal healthcare arrangements. These arrangements support UK residents when they visit partner countries by enabling them to access public healthcare. An arrangement can be a treaty (legally binding agreement) or a non-legally binding commitment, for example, contained in a memorandum of understanding. Memoranda of understanding are used to agree commitments with territories that cannot sign treaties, such as Crown dependencies. The UK currently has international healthcare arrangements with the European Union and several other countries. Within these healthcare arrangements, there are variations in the level of free treatment afforded to visitors, but generally only immediate emergency and necessary healthcare is provided free of charge.

The Healthcare (International Arrangements) (EU Exit) Regulations 2023 (the HIA regulations) confer powers on the Secretary of State to fund healthcare abroad. These powers can be used to pay for treatment which is covered by an arrangement with a partner country; or to make discretionary payments for healthcare in a partner country outside such an arrangement if the Secretary of State considers the payment to be justified by exceptional circumstances. The Secretary of State will consider the factors set out in the ‘Funding healthcare abroad in exceptional circumstances’ section of the framework when making discretionary funding decisions under the HIA Regulations.

Emergency and Necessary Healthcare

Necessary healthcare means healthcare that cannot reasonably wait until the person comes back to the UK. Whether treatment is necessary is decided by the healthcare provider in the country the person is visiting.

Necessary healthcare can include:

• emergency treatment and visits to accident and emergency services;
• treatment for a long term or pre-existing medical condition;
• routine medical care for pre-existing conditions that require monitoring;
• routine maternity care, as long as the individual has not travelled abroad to give birth;
• under some arrangements, pre-arranged treatments (such as for oxygen therapy, chemotherapy or dialysis).

International healthcare arrangements support people in accessing medically necessary state-provided healthcare during a temporary stay in a partner country. It is only valid if a person has not travelled to that country specifically for the purposes of receiving healthcare. Proof of eligibility under the specific arrangement is necessary, and for many countries – but not all – this will now be the Global Health Insurance Card (GHIC).

Necessary care is usually offered on the same basis as a resident of the treating country, so there may be a charge for it, even where the services would be free on the NHS. The current arrangements do not cover:

• cruise travel;
• private medical care;
• costs associated with rescue, such as mountain rescue;
• the cost of repatriation to the UK.

Pensioner and Worker Healthcare

Under social security co-ordination arrangements, those who are entitled to UK funded healthcare, but who retire and are in receipt of a UK State Pension, are posted to work, undertake frontier work or export certain benefits to a partner country can continue to receive healthcare cover paid for by the UK. These arrangements also offer coverage for dependent family members. Generally, someone may be UK insured if they pay or have paid social security contributions in the UK. These arrangements cover healthcare costs, on the same basis as a local resident (for example, a UK insured pensioner may be required to pay any co-payments that a local resident in that member state would pay).

Planned Healthcare

Finally, under the EU and Switzerland arrangements, there are specific provisions for pre-arranged planned treatment. Where such arrangements are in place, they create an entitlement to state funding for planned healthcare treatment in another country, if specific criteria are met. This means that an individual can travel to another country with the purpose of receiving pre-authorised treatment in a state-funded hospital, and their treatment will be funded by the DHSC.

To qualify for state funded planned treatment abroad, all of the following criteria must be met:

• the applicant is ordinarily resident in the UK and entitled to treatment on the NHS;
• the applicant has sought prior approval for the treatment;
• the requested treatment would normally be provided in the NHS to an individual in the circumstances;
• the requested treatment is being provided under the treating country’s state healthcare scheme. The applicant has provided written evidence from a clinician that they have had a full clinical assessment in any EU country, or Switzerland, unless they are in scope of the UK-EEA EFTA Separation Agreement where they may access treatment in Norway, Iceland and Lichtenstein. The clinician’s statement must clearly state why the treatment is needed in the circumstances, and what the clinician considers to be a medically justifiable time period within which the applicant should be treated in the circumstances. The clinician should support this statement by giving objective reasons;
• taking into consideration the information provided by the clinician, the NHS has determined that the same or equivalent treatment cannot be provided on the NHS within a time period that is medically justifiable (undue delay);
• the requested treatment is not experimental or part of a drug trial;
• the requested treatment is not emergency treatment.

In some cases, a person can be resident in an EU country, EEA country or Switzerland but the UK Government remains responsible for their healthcare costs – for example, pensioners or temporary workers. In this case, the person can seek planned treatment abroad and must request authorisation from their place of residence which will forward the decision to the UK.

Funding healthcare abroad in exceptional circumstances

The HIA Regulations enable the Secretary of State to make discretionary payments for healthcare treatment abroad even where the criteria in a reciprocal healthcare arrangement are not met. Payments can only be made if both of the following conditions are met:

• the healthcare treatment is in a country with which we have an international healthcare arrangement;
• the Secretary of State considers exceptional circumstances justify the payment.

Funding for treatment abroad is a narrow exception to the general rule that residents of the UK who are entitled to free NHS healthcare should receive treatment in the UK. As such, discretion to fund outside of a healthcare arrangement will be used sparingly and only where there are exceptional circumstances which justify the payment. The factors to be taken into account in making this funding decision are as follows:

1. Does the healthcare treatment fall narrowly outside the scope of an arrangement?

The discretionary power can only be used to fund treatment in countries with which the UK has agreed healthcare arrangements. This criterion is in place to ensure the government can fund treatment where the criteria in the healthcare arrangement is missed by a small margin.

In determining whether exceptional circumstances justify payment, the Secretary of State will therefore assess whether it is objectively reasonable to expect the treatment to be covered under the arrangement, or the treatment is closely related to treatment that would be covered, by the UK’s existing arrangements with that partner country.

The Secretary of State will look at the criteria in the relevant healthcare arrangement and take into account the following factors:

• whether the treatment is available under the partner country’s state healthcare scheme. Private treatment is not covered by international healthcare arrangements and is unlikely to be funded under the HIA regulations;
• whether the treatment is routinely commissioned by the NHS. Experimental treatments and drug trials are not covered by international healthcare arrangements and are unlikely to be funded under the HIA regulations;
• whether the applicant has complied with UK Government advice and legal requirements. The UK Government is clear that people should check local procedural requirements before travelling or moving to a different country including, for example, on how to register for local healthcare. Discretionary funding will not usually be considered in cases where individuals have acted contrary to UK or partner country advice;
• whether it is objectively reasonable to expect the individual concerned to be covered under the arrangement;
• whether the funding is for a defined course of treatment. The Secretary of State will not normally approve discretionary funding for continuous, long term treatment abroad. Planned treatment is usually approved for a specific, limited period appropriate for that course of treatment.

2. Would refusal to fund healthcare treatment result in unjustifiably harsh consequences?

The Secretary of State will normally require evidence that failure to provide discretionary funding would result in unjustifiably harsh consequences for the individual, such that refusal of the funding would not be proportionate. Unjustifiably harsh consequences could mean a significant risk to the physical and mental health of an individual which can only be mitigated by funding the treatment. The Secretary of State will take into account the vulnerability of the individual, and any clinical view of the benefit to health outcomes.

For planned treatment abroad in exceptional circumstances, the Secretary of State will also consider whether there are any compelling compassionate grounds, such as an emergency or unexpected event, which would lead to unjustifiably harsh consequences for the individual or their family if treatment were not funded. Unjustifiably harsh consequences could also be caused by a crisis or disaster abroad that could not have been anticipated – for example, a public health emergency, natural disaster, or national or local unrest.

Comment

It will be interesting to see how these funding arrangements are utilised. With the NHS notoriously struggling to cope with demand within the jurisdiction, will UK residents turn to foreign, particularly EU, suppliers? How many exceptional arrangements will the Secretary of State agreed to fund? What will the consequences be if something goes wrong during the course of treatment provided abroad, but funded by the NHS? Presumably the fact that the treatment had been funded by the UK government would be a compelling factor in the consideration of jurisdictional matters in any subsequent claim. So far there are no hard and fast answers to these fascinating questions, but one thing is becoming ever clearer: the growth in health tourism shows no sign of letting up, whether privately or publicly funded.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.