European Surgeries Ltd v Secretary of State for Health

In October 2003 Mr Harry Cooper underwent a cataract operation on his left eye at the Cromwell Clinic in Huntingdon. The operation was carried out by Dr. Schock, a German ophthalmology surgeon. The operation was arranged by the Claimant. After the operation Mr Cooper paid £1475 to the Claimant who, no doubt paid Dr. Schock’s fees and the Clinic’s charges.

On 13 January 2004 the Claimant wrote to the Huntingdonshire Primary Care Trust, now the Cambridgeshire PCT, requesting that the PCT reimburse Mr Cooper the sum of £756 which it said was the “tariff” i.e. the current domestic rate for such an operation. The basis of the claim was, and is, based on Article 49 of the EC Treaty and various authorities of the European Court of Justice. Put shortly, the PCT refused.

On 15 April 2004 judicial review proceedings were begun by the Claimant against the PCT. The relief sought appears in section 6 of the Claim Form:-

“A mandatory order that the Defendant reimburse the Claimant’s patient Mr Harry Cooper at the appropriate NHS rate for his cataract surgery performed by the Claimant’s surgeon on 10 October 2003.

“A declaration that the Defendant is obliged to reimburse patients under its care for treatment by EU providers such as those contracted to the Claimant on the terms set out by the European Court of Justice. In particular, a declaration that the Defendant may not require advance authorisation for patients undergoing outpatient treatment, whether in hospitals or elsewhere. ”

I shall not describe the course the proceedings have taken. The reason why they have taken so long to come on is as a result of

Before turning to the issues it is helpful to recount the facts more fully.

Mr Cooper in 2003 was 78 years old. In about 2002 he was referred to the eye clinic at the Hinchingbrooke Hospital in Huntingdon. I quote from the letter of Mr Stephenson, a Consultant Ophthalmology Surgeon of 13 May 2004:-

“Mr Cooper was initially referred to the eye clinic for routine screening due to his high dose Desferrioxamine therapy under the department of haematology. In May 2002 he had reasonably good visual acuity of 6/9 in each eye. At that time he was noted to have early pigmentary degenerative changes at both maculae. These pigmentary macular changes had progressed by December 2002 when Mr Cooper complained of gradual deterioration of his vision in both eyes. He was therefore referred to the vision sciences department at Addenbrook’s Hospital where electro-diagnostic tests were performed. These did not show any significant signs of Desferrioxamine toxicity.

“Mr Cooper’s vision deteriorated further by August of 2003 when the electro-diagnostic tests were repeated and again did not show any significant signs of Desferrioxamine toxicity. No record of any cataract or lens changes were made at these assessments and his reduced vision appears to have been thought to be due to his macular-degenerative changes.

Mr Cooper did not attend his eye clinic appointment on 20^th August 2003…”

In September 2003 Mr Cooper consulted his GP, Dr Culloty, who wrote to Ms Bridget Hickey of the Claimant on 26 September 2003 as follows:-

“Thank you for seeing this gentleman who is complaining of problems with his vision. He gets coloured lines around his right eye at night and has obvious bilateral cataracts. He finds it difficult for him to read the racing results. He has aplastic anaemia and his wife suffers with Alzheimer’s disease. His Haematologist, Dr Rege, wonders if this could be a side effect of Desferrioxamine. Mr Cooper would like your opinion so he can decide whether he can afford to have private treatment.”

On 10 October 2003 Mr Cooper underwent the operation to which I have referred, which was arranged by the Claimant.

On 21 October 2003 Dr. Culloty wrote to the Consultant Ophthalmologist at Hinchingbrooke Hospital:-

“Thank you for seeing [I believe he meant to write “agreeing to see”] this chap who has a right cataract. He had his left eye operated on a few days ago privately but would like the right eye done on the NHS”

On 30 October 2003 Mr Cooper returned to the eye clinic at Hinchingbrooke Hospital. I quote again from Mr Stephenson’s letter of 13May 2004:-

“Mr Cooper had apparently undergone left cataract surgery privately three weeks previously by European Surgeries. Mr Chandra’s assessment was that his left vision had not been significantly improved by the left cataract surgery and that there was still mild residual inflammation in that eye. His notes indicate bilateral macular-degenerative changes, which he assessed as being the limiting factor to Mr Cooper’s vision. He recommenced topical anti-inflammatory medication at that time and advised Mr Cooper to be reviewed by his operating surgeon.

“Mr Cooper was next seen on 25 November 2003 by our optometrist for assessment of possible right cataract surgery. She counselled him about his macular-degenerative changes and the guarded outcome of visual improvement following cataract surgery due to his underlying macular changes. She decided in conjunction with Mr Cooper not to proceed with cataract surgery at that stage.

“In summary, Mr Cooper’s reduced vision appears to be related to his underlying macular-degenerative changes. His left vision does not appear to have improved significantly following left cataract surgery performed by European Surgeries. He has not been listed yet for right cataract surgery and is due for further review in the eye clinic.”

I agree with the comments of Mr Lock, Counsel for the PCT, that the operation on Mr Cooper’s left eye does not appear to have provided any substantial benefit to him. Furthermore, it seems likely that had Mr Cooper been referred to an NHS Hospital for treatment he would not have undergone an operation to his left eye.

Who are the Claimants and what services do they provide? Ms Hickey is the Managing Director and shareholder of the Claimant. She is a qualified nurse specialising in theatre nursing, plastic surgery, and nuclear medicine. Between 2001 and 2003 she was involved in a private ophthalmology practice in Cambridge. The consultant had his main practice in Germany, where, it is said, cataract operations were treated as outpatient cases and costs were much lower than in England.

The practice failed. However Ms Hickey believed that there was scope in offering medical procedures to NHS patients even when they had to pay.

She set up the Claimant. It provides a range of medical services to patients in ophthalmology, orthopaedics, general surgery and diagnostics. At paragraph 10 of her statement 30 October 2007 she says:-

“I consider that it would be of enormous benefit to patients if the NHS were prepared to fund (at least partially) treatment provided by medical practitioners based in other EU Member States. My experience is that such high-quality treatment often be provided economically and very quickly. I have, for example, seen old people whose last years have been blighted by refusals to give treatment even for relatively simple complaints such as cataracts. Even if the treatment is not refused outright, the patient may be placed on a waiting list with the risk that they may have to endure discomfort or even die before being treated. Similar considerations apply to diagnostic procedures, which in my experience are “rationed” in a way can cause great disadvantage to patients.”

There are a number of matters which should now be noted in this judgment. First, at no time was the PCT asked either to commission the operation or reach a view that it was clinically necessary. The first time the PCT knew anything of the operation was some 3 months after it took place when on 13 January 2004 the Claimant wrote to it. As Ms Bell, the PCT’s Chief Executive, noted in paragraph 10 of her statement of 11 May 04 the PCT has never seen any statement from Dr Schock, any medical notes of the operation, or any assessment carried out by Dr Schock (or any other ophthalmologist engaged by the Claimant) which reached the decision that it was clinically appropriate to carry out this operation.

Second, it is said by the Claimant (see its letter to the PCT of 13 January 2004) that Mr Cooper was advised by Dr Culloty that he would have to wait for between 9 to 12 months. There is in fact no evidence from either Mr Cooper or Dr Culloty to that effect. Nevertheless, such a representation (if made) by Dr Culloty, who, it is accepted, was not an agent for the PCT, was probably partially inaccurate, as the statement of Ms Bell makes clear:-

“The NHS has been involved since May 2003 with an initiative to reduce the waiting times for eye operations. I refer to Pages 7 to 9 of Exhibit “KB1” being a copy of a Press Release dated 21^st May 2003 which refers to the investments made nationally to reduce waiting times for these operations. We have played our part locally and are investing in these operations to reduce waiting times. It is very difficult to give exact times for operations since they vary slightly from month to month but, I am informed by the staff at Hinchingbrook Hospital who handle these matters for the Trust, that the maximum waiting time for a routing cataract operation in September/October 2003 was about 9 months. The maximum wait has now been reduced to about 4 months.

“I have referred above to maximum waiting times because the waiting time which is appropriate in each case is a clinical matter. The relative priority of cases is a matter which is usually discussed between clinicians. It depends on the state of health of the individual patient, the degree of seriousness of the condition and any other factors which may justify the patient having earlier treatment. If there are good reasons to bring forward the treatment, the patient can be admitted to hospital in a matter of a short number of weeks. It is therefore not correct to say that we have a fixed standard waiting time.

“If the clinicians are unable to agree between themselves as to the relative priority for a patient, the GP may approach the PCT. These matters are dealt with by my colleague, Mr Gene Dunbar. Mr Dunbar tells me that when he is asked by GPs to expedite treatment for cases such as cataracts he will discuss the details of the case with the GP and then with the hospital consultant. He then seeks to agree with both clinicians a waiting time that suits the needs of the patient. Accordingly, although there is a maximum waiting time, the period that any individual patient will spend waiting for an operation such as a cataract depends on the needs of that individual patient.

“Mr Dunbar has confirmed to me that, to the best of his knowledge, the PCT was not contacted about Mr Cooper’s case, either for a normal referral or for expedited treatment.”

Third, Mr Cooper paid the Claimant £1475 and has himself made no request for reimbursement or made a complaint to the PCT. Nevertheless the Claimant seeks a mandatory order that the PCT reimburse Mr Cooper, as I have set out. The Claimant itself has suffered no loss at all. Mr Cooper paid what the Claimant demanded of him. The Claimant has in its letters of 17 February 2004 to Ms Bell stated that it had “the patient’s written consent to pursue this issue of his reimbursement”. However, despite requests by the PCT’s solicitors of 26 February 2004 and 11 March 2004 to produce a copy of the “written consent” it has never been produced. Furthermore, perhaps the absence of any statement from Mr Cooper stating that he wishes to be reimbursed by the PCT speaks for itself.

Fourth, although there are no statements from either Dr Schock or the Cromwell Clinic, I agree with Mr Lock’s submission that the probability is that Mr Cooper and the Claimant entered into one contract and that the Claimant entered into a separate contract with Dr Schock and the Cromwell Clinic.

The Claimant’s case is that the refusal of the PCT to reimburse Mr Cooper for the (partial) cost of an out-patient procedure carried out by a German medical service provider, i.e. Dr Schock, constitutes a breach of Article 49 EC. It is said that the PCT refused to reimburse the cost of treatment on the ground that the patients concerned had not sought prior authorisation for obtaining treatment from a foreign service provider. It is argued that the imposition of a prior authorisation requirement is a restriction on the freedom to provide and/or receive services and is unlawful unless it is justified as being proportionate to a legitimate objective. The Claimant contends that the PCT has not discharged that burden. The reasons are summarised at paragraph 13 of the skeleton argument of Dr Roberts and Ms Marie Demetriou as follows:-

“(a)

The provision of medical services to the patients in these cases engages Article 49 EC.

(b)

The refusal of the Defendants to reimburse the patients for the services they received constitutes a restriction on the freedom to provide/receive services protected by Article 49 EC.

(c)

That restriction is unjustified and therefore unlawful because:

(1)

The treatment received by the patients was “non-hospital treatment” and the ECJ has established that it is unlawful for a Member State to require prior authorisation for non-hospital treatment.

(2)

Alternatively, even if (which the Claimant does not accept) the treatment had been “hospital treatment”, the refusal of the Defendants to fund such treatment would still have been unlawful because such refusal was based on a prior authorisation system which did not meet the conditions for proportionality laid down by the ECJ ”

Ms Haynes, Counsel for the Secretary of State for Health, puts the principal contention of the Claimant accurately in paragraph 2 of her skeleton argument namely:-

“…the refusal of the Defendants to reimburse the Claimant’s clients was unlawful owing to the fact that the treatment received was non-hospital treatment and any prior authorisation requirement was contrary to Community law. Even if the treatment were hospital treatment, the refusal of the Defendants remains unlawful because it was based on a prior authorisation system which did not lay down the conditions of proportionality laid down by the Court of Justice.”

It is therefore being said that the PCT has acted unlawfully in failing to reimburse Mr Cooper. Mr Lock, supported by Ms Haynes, submits that the claim is highly irregular since it is not brought by the patient seeking reimbursement but by the service provider (i.e. the Claimant) who has charged the patient, who has been paid in full by the patient, and thus to whom no money is owed. Since therefore the patient himself has not sought reimbursement and no reimbursement is due to the Claimant, there cannot have been any unlawful refusal to reimburse the patient. In the absence therefore of any real dispute between the PCT and Mr Cooper the claim by the Claimant is academic and its real purpose is to seek an advisory opinion from the Court. Accordingly the claim is misconceived and should be dismissed.

When I read the papers the day before the hearing it seemed to me that if I was persuaded by the above arguments there was little or no point in considering submissions on Article 49. Accordingly I caused my clerk to send an e-mail to Counsel to that effect and that I would like Counsel to address me on the points raised in paragraphs 16 to 32 of Mr Lock’s skeleton argument. Counsel agreed to that course. Mr Lock and Ms Haynes addressed me first. Dr Roberts, Counsel for the Claimant, then made submissions to me. Mr Lock and Ms Haynes replied. I invited Dr Roberts to make any further submissions he wished, which he did. I then indicated that I was persuaded that the claim was misconceived and that in these circumstances there seemed to me little, if any, point in hearing submissions on Article 49. Dr Roberts attempted to persuade me to continue. But I was not convinced, as the claim is, in my judgment, misconceived.

Let me now set out, as best I can, the submissions of Counsel. Mr Lock based himself on paragraphs 16 to 32 of his skeleton argument.

What was being claimed under section 6 item 1 of the Claim Form was a mandatory order against the PCT to reimburse Mr Cooper £756 in circumstances where, a) Mr Cooper had never made any such demand of the PCT, b) the Claimant itself had been fully paid by Mr Cooper, d) Dr Schock and the Cromwell Clinic had been paid their fees or charges, d) the Claimant is, and was not, acting as Mr Cooper’s agent, and e) Mr Cooper had not assigned to the Claimant any right of action against the PCT for £756.

Such relief was not justiciable. Any right to claim £756 lay with Mr Cooper and not the Claimant. Since Mr Cooper had not made any claim against the PCT the PCT was not obliged to entertain and/or consider a request by the Claimant to pay Mr Cooper £756. The PCT were under no public law duty to consider and/or entertain such a request and thus the PCT had done nothing unlawful in refusing to accede to the demand of the Claimant.

An unusual feature of the case was the Claimant’s central complaint, as shown by item 1 of section 6 of the Claim Form, that the PCT has failed to make a payment to Mr Cooper. Nothing is owed to the Claimant. Mr Cooper entered into a contract with the Claimant for private individual treatment and is in no different position to others in the UK who have private medical treatment for which they or their insurers make payment. Where such persons have private medical treatment the PCT is (usually) quite unaware that such has taken place, and, even if somehow knew, there was no legal duty on the PCT to consider making a payment to reimburse the patient.

Mr Lock conceded that it is in the commercial interests of the Claimant to be able to tell its customers that they may be refunded (at least in part) by the PCT if they have medical operations arranged privately when Article 49 is engaged. However, he submitted that that commercial interest did not put the PCT under a legal obligation to the Claimant to consider making such payments in the absence of a request by the person (i.e. Mr Cooper) who was the person liable to make the payments for his treatment and who did make the payments. As a matter of principle a public body is not obliged to entertain a request to make a payment to a third party in circumstances such as pertain here. The public body, the PCT, is entitled to ignore the request unless or until it is made by the patient i.e. Mr Cooper.

Mr Lock took me to CPR 54.1(2) which provides:-

“In this Section –

a)

a “claim for judicial review” means a claim to review the lawfulness of –

i)

an enactment; or

ii)

a decision, action or failure to act in relation to the exercise of a public function.”

Mr Lock cited in his oral submissions three authorities, mainly Gouriet and other v HM Attorney-General and others [1978] AC 435, R v Ministry of Agriculture, Fisheries, & Food ex-parte Lower Burytown Farms Ltd & others 10.2.1998, unreported, and Trustees of the Dennis Rye Pension Fund & others v. Sheffield City Council [1998] 1 WLR 840.

In Gouriet he relied upon passages in the speeches of Lord Wilberforce at p.483 and of Lord Diplock at p.501 respectively as follows:-

“Since, as I understand, others of your Lordships intend to deal fully with this argument and with the authorities, I shall content myself with saying that, in my opinion, there is no support in authority for the proposition that declaratory relief can be granted unless the plaintiff, in proper proceedings, in which there is a dispute between the plaintiff and the defendant concerning their legal respective rights and obligations either asserts a legal right which is claimed or threatened, or claims immunity from same defendant against him or claims that the defendant is infringing or threatens to infringe same public right so an to inflict special damage on the plaintiff”.

“But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and those of anyone else”.

Lower Burytown Farms was a decision of Laws J. as he then was. The applicants sought a declaration in judicial review proceedings that they were entitled to interest on certain payments made by the Ministry following a preliminary ruling of the ECJ given on 17 July 1997. Mr Lock cited the authority for what the judge said at p.9 onwards under the heading “Do the applicants fail because they have not in fact sued by writ”. He held that they did not. At p.10 he said:-

“Certainly this is not a case where judicial review proceedings were intrinsically inappropriate, so that the applicants’ case ought to have been instituted by writ; I can well understand that it was thought most convenient to proceed under Order 53. But the question is whether, having chosen that route, they are now to be denied interest in consequence. In view of the entirely responsible conduct of the parties in approaching the interest issue, and the fact that there can have been no possible doubt (since before the Notices of Motion were issued) but that the applicants sought a substantive ruling as to whether interest is recoverable, I cannot hold that the applicants are, as it were, to be non-suited for failure to sue rather than go by judicial review. Had there been the least indication, when the claims for interest were first asserted, that the respondent took issue with them on procedural grounds the position might have been very different. But if that had been the case, I would certainly have been told. I apprehend that Miss Watson, whom I do not criticise, was on reflection, and in light of the two documents I have mentioned, disposed to accept that the case should not be made to turn on any procedural point as to the form of process adopted. Indeed towards the close of her submissions she agreed in terms that all parties desired the interest issue to be resolved as a matter of principle.”

I have supplied the emphasis to the sentence therein relied on by Mr Lock. He submitted that in the instant case that is precisely what the PCT did – see its Acknowledgement of Service and Response at paras 1(d) and 17.

In Dennis Rye the plaintiff brought private law proceedings against the council for payment of grants following the approval of repairs to its properties. The council succeeded before the district judge in striking out the plaintiff’s proceedings as, inter alia, an abuse of the process of court since the decision to refuse payment could only be challenged by judicial review. The judge overturned the district judge. The council unsuccessfully appealed to the Court of Appeal.

In the course of his judgment Lord Woolf MR, as he then was, said at p.845:-

“The issues. The statutory provisions I have cited make it clear that the legislation contains a statutory code for the approval of grants. The rule is designed to give to the person entitled to the benefit of the grant a right to payment of the grant on compliance with the conditions contained in the legislation. When this has happened the authority has no justification for refusing payment. In this situation I can see no reason why the landlord cannot bring an ordinary action to recover the amount of the grant which is unpaid as an ordinary debt. Notwithstanding the statutory code, it would be disproportionate to seek a remedy of, say, mandamus or a declaration by way of judicial review to enforce payment. Any suggestion that there had been any abuse of process involved in bringing an ordinary action in the High Court or county court would be totally misconceived. Judicial review was not intended to be used for dept collecting.”

Mr Lock then submitted that, if Mr Cooper had exercised his private rights against the PCT by suing it, he could not have had his action struck out as an abuse of the court’s powers. In such an action there would have been real disputes of what period of delay Mr Cooper would have in fact undergone if operated on in the NHS, and whether or not any operation was warranted at all – see the letter of Mr Stephenson to which I have referred. Public law proceedings are an inappropriate forum to resolve such disputes, particularly where Mr Cooper would have been claiming a debt i.e. to be partially reimbursed by the PCT for the costs he had incurred for private treatment.

As to the relief sought in section 6 item 2 of the Claim Form, Mr. Lock submitted that it is highly academic in nature. Whether or not there is a liability in future medical cases involving different patients may, at best, depend on the precise facts of each case including:

It is not the role of this court to make such declarations aside from the facts of the individual cases. See Gouriet and R (Rusbridger) v Attorney-General [2003] UKHL 38, [2004] 1 AC 357.

Ms Haynes, for her part, felt no need to elaborate on her submission which I have summarised at paragraph 21 above. Her second submission was that the matter is of only historical interest since Watts. In April 2007 the Department of Health issued guidance to the NHS and the public explaining Article 49 rights and the prior authorisation procedure. It is currently in the process of introducing regulations to create a framework in which to reimburse patients for the cost of treatment obtained under Article 49 in their EU member states. Thus the instant matter is academic. The declaratory relief sought is devoid of any practical purpose.

Dr Roberts did not submit a skeleton argument on these points but he helpfully responded to them orally. His central submission was that the Claimant has a claim against the PCT in public law arising from its EC Treaty rights i.e. Article 49.

First he referred me to Article 14, paragraphs 1 and 2, which provides:-

“1.

The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 15, 26, 47(2), 49, 80, 93 and 95 and without prejudice to the other provisions of this Treaty.

2.

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.”

Next, Article 49:-

“Within the framework of the provisions set out below, 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.”

He submitted that in Watts and the instant case the issue is – to what extent do market freedoms apply? Since 1998 the EU has said that if agencies, such as the NHS, engage in the market, they are bound by market rules. Thus if the NHS purchases services provided by the private providers, it engages in the market and must observe the freedoms enumerated in Article 49. In the instant case the Claimant is a provider of services in conjunction with a foreign provider, Dr Schock, which engages Article 49. The Claimant is asserting a justiciable right against the PCT because the PCT is doing something inconsistent with its obligations under Article 49. Article 49 prohibits restriction on the freedom to provide services.

He referred me to three decisions of the ECJ namely Clean Car Autoservice GesmbH v Landeshauptmann von Wien, Case C-350/96 dated 7 May 1998, A Verholen & Others v Sociale Verzekeringsbank, Cases C-87/90, C88/90, and C-89/90 dated 11 July 1991, and Carpenter v Secretary of State for the Home Department, Case C-60/00 dated 11 July 2002.

Clean Car involved a company in Austria (Clean Car) claiming against the respondent (the Prime Minister of Vienna Land) concerning the rejection of an application by it to register a trade on the ground that it had appointed as its manager a person who did not reside in Austria, in fact a German national residing in Berlin. The relevant Austrian tribunals (see paragraphs 9 to 12 of the decision) noted that the application of Clean Car to be registered was to be refused because the statutory prerequisites for the exercise of Clean Car’s trade was not satisfied because the manager did not have a residence in Austria. Clean Car contended that since Austria’s accession to the European Union residence anywhere in the EU was sufficient to satisfy the statutory requirements.

The ECJ answered the references to it by ruling that the rule of equal treatment enshrined in Article 48 in the context of freedom of movement of workers, may also be relied upon by the employer in question in order to employ in Austria workers who are nationals of Germany.

Dr Roberts referred me to paragraphs 20 and 25 of the decision:-

“20.

It must further be noted that, in order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers.”

“25.

In the light of those considerations, the answer to the first question must be that the rule of equal treatment in the context of freedom of movement for workers, enshrined in Article 48 of the Treaty, may also be relied upon by an employer in order to employ, ”

In Verholen Dutch law provided (see the Report for the Hearing) that a married woman resident in the Netherlands, whose husband was a Netherlands’ resident and who was exercising an occupational activity in another country and thus was insured in accordance with the laws of that country and thus not insured under Dutch law, was herself not insured for the periods during which her husband was not insured. Mrs Veholen’s husband worked in Germany for 4 years during which he paid no contributions in Holland. Thus the old age pension granted to Mrs Veholen when she reached 65 years old was reduced by 8%.

At paragraphs 22-26 the ECJ said:-

“The question raised in Case C-89/90 seeks to ascertain whether an individual may rely before a national court on the provisions of Directive 79/7 when he bears the effects of a discriminatory national provision regarding his spouse, who is not a party to the proceedings.

“It should be pointed out straight away that the right to rely on the provisions of Directive 79/7 is not confined to individuals coming within the scope ratione personae of the directive, in so far as the possibility cannot be ruled out that other persons may have a direct interest in ensuring that the principle of non-discrimination is respected as regards persons who are protected.

“While it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection (see the judgments in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 and in Case 222/86 Unectef v Jeylens [1987] ECR 4097) and the application of national legislation cannot render virtually impossible the exercise of the rights conferred by Community law (judgment in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595).

“In so far as this case is concerned, however, it should be stated that an individual who bears the effects of a discriminatory national provision may be allowed to rely on Directive 79/7 only if his wife, who is the victim of the discrimination, herself comes within the scope of that directive.

“Accordingly, the answer to the question submitted in Case C-89/90 must be that an individual may rely on Directive 79/7 before a national court if he bears the effects of a discriminatory national provision regarding his spouse, who is not a party to the proceedings, provided that his spouse herself comes within the scope of the directive”

In Carpenter, Ms Carpenter was given leave to enter the UK as a visitor from the Philippines, overstayed her leave, failed to apply for any extension and then married Mr Carpenter. Her husband’s business involved him in travelling to other EU member states.

Mrs Carpenter applied for leave to remain in the UK as a spouse of a national of that member state. The application was refused and a deportation order was made.

Mrs Carpenter appealed. She argued that the Secretary of State was not entitled to deport her because she was entitled to remain in the UK under Community Law. She maintained that since her husband’s business required him to travel to EU member states, he would do so more easily if she was looking after the children of his first marriage, so that deportation would restrict her husband’s right to provide and receive services. The adjudicator rejected that submission. The Immigration Appeal Tribunal referred to the ECJ for a ruling whether Mrs Carpenter could rely on Article 49 (and a Council directive 73/148/EEC of 21 May 1973) to provide her with the right to reside with her husband in the UK.

The ECJ ruled that she could. At paragraph 21 it said that Mrs Carpenter’s case was as follows:-

“Mrs Carpenter admits that she has no right of her own to reside in any Member State but claims that her rights derive from those enjoyed by Mr Carpenter to provide services and to travel within the European Union. Her husband is entitled to carry on his business throughout the internal market without being subjected to unlawful restrictions. Her deportation would require Mr Carpenter to go to live with her in the Philippines or separate the members of the family unit if he remained in the United Kingdom. In both cases Mr Carpenter’s business would be affected. Moreover it cannot be maintained that the restriction on the freedom to provide services, to which Mr Carpenter would be subjected if his spouse was deported, would be a purely internal matter, since he provides services throughout the internal market.”

At paragraph 39 the ECJ observed:-

“It is clear that the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom. That freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse (see, to that effect, Singh, cited above, paragraph 23).

“A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43, and Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24).”

So, Dr Roberts concluded his submissions by saying that the Claimant is not asserting a private right, but an EU right. The Claimant, he submitted, is not able to compete with NHS providers because the NHS providers do not charge anything to the patient. If the Claimant’s right exists, i.e. involving reimbursement of its patients, and the PCT refuses to accept that right, then the Claimant is disadvantaged because patients will opt for NHS treatment.

In my judgment, I do not think it can be gainsaid that if Mr Cooper (like Mrs Watts) had himself demanded payment and in the event of a refusal by the PCT to reimburse him, had instituted proceedings against the PCT, Mr Cooper, if he established a case under Article 49, may have been entitled to an order requiring the PCT to reimburse him with £756. He had paid the fees. It would have been he who was out of pocket and thus he who would have had a legal right to reimbursement from the PCT (on the assumption that he made out a case under Article 49). Mr Cooper could, in my view, have certainly brought proceedings against the PCT to assert his legal rights. Whether they would have succeeded is beside the point. He, as the person allegedly out of pocket, would have had a justiciable claim. English law, in my judgement, undoubtedly would provide him a mechanism for his claim to be decided.

But, in circumstances where the owner of the legal right has made no demand for payment, and has not purported to validly assign to the Claimant the entitlement to receive £756, it seems to me to be a bold proposition that the Claimant should be entitled to ask the court to reimburse the owner of the legal right. In the circumstances of this case it can be said that such an order is truly academic. The Claimant is not out of pocket. Mr Cooper paid what was demanded of him and does not seek reimbursement of £756 from the PCT.

Furthermore, the consequences of the Claimant succeeding in the relief claimed would, I suggest, be startling. The Claimant would be able to tell its customers that if they contracted for medical services with it then, provided there was a cross-border element i.e. the engagement of a national of an EU member state (but not one of the UK) to provide medical services, under Article 49 the PCT would be bound to reimburse them with that part of the cost equivalent to the tariff without any reference at all to the relevant PCT prior to the provision of medical services. The corollary of that would be that if the medic engaged was a UK national then no reimbursement by the PCT would arise because Article 49 would not be engaged, there being no cross-border element. Thus it seems to me the reality of the Claimant’s case is to obtain from this court an advisory opinion from the court for future cases that PCTs are liable to reimburse the Claimant’s customers with the relevant proportionate charge provided that the Claimant ensures that the provider of the medical services is a national of an EU member state, other than the UK.

Thus I would hold, for the reasons advanced by Mr Lock, for the reasons advanced by Ms Haynes (see paragraph 21 above), and what I have said above that under English domestic law the Claimant has no justiciable claim. But does the Claimant have a justiciable claim under Community law?

In my judgment what is striking about the European cases of Clean Car, Verholen, Carpenter, and indeed Watts is that the Claimants/applicants in each case were seeking to enforce their own rights and/or obtain what I would term concrete relief. In Clean Car the applicant company claimed to be registered to carry out its trade. In Verholen the applicant claimed to receive a full pension without a deduction of 8%. In Carpenter, the applicant wanted to be granted leave to remain in, and not to be deported from, the UK. In Watts, Mrs Watts sought reimbursement of the medical fees she incurred in France for a hip replacement operation. By contrast, in the instant case, the Claimant is seeking no concrete relief for itself at all. That the Claimant may be able to tell its customers in the future that the PCT will have to reimburse them and thus run its business more profitably does not seem to be to give rise to any justiciable claim.

I accept that in Clean Car, Verholen, and Carpenter, the claimants/applicants had to assert the rights of the manager, Mr Verholen, and Mr Carpenter respectively, under Community law. To that extent they had to piggy back. But the practical effect of each of them piggy backing was to enable each of them to claim concrete relief.

Furthermore, I accept the submission of Mr Lock in reply that each of the European cases cited by Dr Roberts involved discrimination. In the Clean Car case the applicant’s company’s manager was discriminated against. In Verholen the discrimination involved Mr Verholen being deprived of rights under Dutch Law because for a period of time he had worked in Germany. In Carpenter the discrimination involved Mr Carpenter being unable to properly carry out his business in other EU member states. I further accept his submission that in the instant case there was no discrimination. Neither Mr Cooper, who footed the bill, nor Dr Schock who was paid his fees, nor the Cromwell Clinic who were paid its charges, claim or could claim discrimination. Nor do I see how the Claimant can claim any discrimination. It contracted with Mr Cooper and Mr Cooper paid the contractually agreed fees. It had no difficulty in obtaining the services of Dr Schock.

Accordingly, I would hold that in the circumstances of this case the Claimant has no justiciable claim against the PCT under either English domestic law or under Community Law. The Claimant is not therefore entitled to an order in the terms of item 1 of section 6 of the Claim Form.

I also find that the Claimant has no justiciable claim to the declaration sought at item 2 of section 6 for the reasons advanced by Mr Lock in paragraphs 36 and 37 above. I would draw attention to the dictum of Lord Hutton in Rushbridger at paragraph 35:-

“I respectfully dissent from this view expressed by the Court of Appeal. It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. This point was well put by the Lord Justice-Clerk (Thomson) in Macnaughton v Macnaughton Trustees 1953 SC 387, 392:

“Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case”

I would, with respect, emphasise in the instant case the words of the Lord Justice-Clerk “nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs.” It seems to me that the Claimant in the instant case falls foul of the strictures of Lord Hutton and of the Lord Justice-Clerk. The court here is not in the business of giving advance clearance to the way the Claimant seeks to run its business, particularly where their will be different factual matrices for each future case.

I should, for completeness sake, say that I do not accept that their should be no declaration on the basis of the reasons advanced by Ms Haynes under her second submission – see paragraph 38 above. I was not shown the Guidance. But even so I do not consider the Guidance or any impending regulations (about which Ms Haynes declined to tell me more about the “framework” because everything was either in draft or embryonic) could individually or together disentitle the Claimant to such a declaration were the Claimant otherwise entitled to it, which for the reasons given in paragraphs 63 and 64 above it is not.

The claim is therefore dismissed.