John Leighton Williams QC discusses funding uncertain future medical treatment and the decisions in Peters v East Midlands SHA and Carter v Powys Local Health Board and Others.
The decision in Peters v East Midlands SHA  EWCA Civ 145 enables all those who genuinely seek private medical treatment to claim the cost of the same from negligent defendants. Defendants are understandably reluctant to accept such claims especially when significant costs may be incurred. Provisional damages under S 32A of the Supreme Court Act 1981 enable postponement of claims where there is a chance that a medical condition will deteriorate but where that is a certainty Section 32A will not bite. Recently in Carter v Powys Local Health Board and Others, which settled shortly before trial, a way around the problem emerged.
Mrs Carter, now aged 34, had been born with a hole in the heart. Poor monitoring and delayed treatment has resulted in medical problems such as fainting and increasing breathlessness limiting life expectancy. Soon she would have to cease employment. Her treatment to date had been provided by the NHS in Wales provided mostly at the Brompton Hospital in London and included the prescription of expensive medication, some of it is in an early stage of development, where delays in NHS approval had already occurred. Ultimately, the only treatment would have to be a successful heart and lung transplant, which if were to take place would likely be in her early 50s. Heart – lung transplants are presently available only on the NHS in the UK but are available in the USA and there is limited private availability in Europe. Frequently a patient considered suitable for a transplant may have to wait up to 2 years for a matching heart and lung to become available.
There was considerable uncertainty about whether or not the Claimant would be able to have such a transplant, assuming she was considered medically fit to do so. Funding within the NHS is a constant problem and the provision of funding for suitable treatment for her could not be guaranteed. Apart from the inevitable uncertainty over whether by the time she reached her early 50s she would be fit for such a transplant and whether a suitable heart and lung could be found, there was the question of whether the NHS in Wales would be able or willing to fund it. Having the ability to obtain private treatment clearly enhanced her chances of living longer and leading a more fulfilling life in the future. The assessed cost, if carried out in the UK, was about £600,000.
The Claimant wanted the security of knowing that when the time came she could have the necessary treatment. The defendant health authority was reluctant to commit itself to accepting such a claim but apart from an early assertion that Peters was never meant to cover such a situation, hardly a convincing argument, probably could see no way of avoiding the claim other than by seeking to minimise it by way of discount for uncertainty and accelerated payment.
The way out of the dilemma turned out to be quite simple : the Defendants’ funders gave an undertaking to meet the cost of private treatment in the event of the NHS in Wales being unable or unwilling to provide funding, provided such treatment was recognised by cardiologists and/or cardiac surgeons and maximised clinical effectiveness, in whatever location it was recommended to be given. The latter provision was highly important since it did not limit treatment to the UK. Any dispute over the appropriateness of treatment was to be dealt with by urgent arbitration concluding not later than a month after the issue arose. Thus prompt treatment could not be delayed by bureaucracy.
The above was a satisfactory conclusion to a difficult problem but whether it will commend itself to insurers remains to be seen. NHS funding is idiosyncratic and derives from Government. Insurers funding derives from shareholders and insurers positively hate ongoing liabilities, as their reluctance to settle on provisional terms shows. But as with provisional damages and periodical payments, undertakings may prove a way forward for dealing with uncertain claims, whether or not private medical care is involved.