Court orders payment for man who sought own medical treatment abroad

The government has been ordered to pay over €70,000 in damages to a man who was refused free medical treatment overseas but made his own arrangements.

The First Hall of the Civil Court ruled that this refusal on the part of the authorities was ultra vires and was also in violation of EU laws which were directly applicable to Malta.

Daniel James Cassar had instituted his case against the Chief Government Medical Officer and the Director of Social Services.

He told the court that he suffered from Type 1 Diabetes and his health had progressively deteriorated to the extent that he urgently required surgery consisting in a simultaneous pancreatic and living donor kidney transplantation.

Since this operation was not performed in Malta he had applied to the Director of Institutional Health for free treatment abroad. The request was turned down on the grounds that this treatment did not form part of the publicly funded health care services package offered to persons living in Malta and covered by Maltese social security.

Mr Cassar claimed that this denial was in violation of European Law which provided for free circulation of services. This law specifically provided for medical care in member states other than that in which the applicant resided.

Mr Justice Raymond Pace heard that following this refusal Mr Cassar had undergone surgery in Pisa at his own expense after his mother donated one of her kidneys to him. The costs of the surgery amounted to €74,241.91, and Mr Cassar had incurred further expenses for travel and living while in Italy.

The court said there was no doubt that the provision of medical treatment fell within the definition of services as stipulated by EU law. This law also laid down that it was prohibited to place restrictions on freedom to provide services within the EU states. Case law of the EU had also determined that even where the health service was free, as was the case in Malta, medical treatment was still to be deemed a provision of services.

Consequently, as a person entitled to free medical treatment in Malta, Mr Cassar was entitled to the treatment he sought. Had such surgery been possible in Malta, then he would have had the same operation performed free of charge. The fact that the surgery could not be performed in Malta did not mean that Mr Cassar was not entitled to receive it.

Mr Justice Pace said that it resulted that the Travel Abroad Advisory Committee within the Health Department did not apply objective criteria when discussing applications for overseas treatment, but decided each case on its own merits. As a result, the criteria adopted by the ccommittee were discretionary. The refusal issued to Mr Cassar had not made any reference to European law, and the court added that the authorities had not taken any action to change their policies following EU accession.

The court ruled in favour of Mr Cassar and ordered the authorities to pay him €74,241.91