Patients requiring treatment which is unavailable in Malta or which cannot be provided within a “medically acceptable” timeframe may now expect the government to foot the bill of operations performed abroad, following a judgment handed down by the Appeals Court.
The landmark ruling could potentially lead to a huge demand for the resources allocated by the health authorities to patients seeking medical treatment abroad, according to lawyers involved in the case.
The appeal court confirmed a judgment handed down in November 2008 which ruled that the authorities’ refusal to cover a diabetic patient’s treatment abroad was in violation of EU laws.
The case was instituted in 2004 by Daniel James Cassar against the Chief Government Medical Officer and the Director of Social Services.
Mr Cassar suffered from Type 1 Diabetes and his health had progressively deteriorated to the extent that he urgently required surgery consisting of 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 because 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 had argued that this denial was in violation of European law which provided for free circulation of services – the law specific-ally provides for medical care in member states other than that in which the applicant resides.
Following this refusal, Mr Cassar underwent surgery in Pisa at his own expense after his mother donated one of her kidneys. 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 first court, presided over by Mr Justice Ray Pace, 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 governments could not place restrictions on freedom to provide services within the EU states. European case law 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 Mr Cassar was not entitled to receive it.
The first court also ruled that the same applied if “the waiting time imposed on the person concerned exceeds the medically acceptable period in the particular case”.
Mr Justice Pace said 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 committee were discretionary.
The Appeals Court, presided over by Chief Justice Silvio Camilleri, Mr Justice Albert Magri and Mr Justice Tonio Mallia, agreed with the first court.
It also noted that the public did not know what was contained in the publicly funded health care services package offered by the government.
Commenting on the outcome of this “landmark case”, Mr Cassar’s lawyers, Paul Micallef Grimaud and Jotham Scerri Diacono, said the judgment’s implications for Malta’s healthcare benefit system were far-reaching.
“As the position currently stands, any resident in Malta who pays social security contributions is entitled to receive medical treatment in any EU member state at the expense of the Maltese government if the treatment he or she requires is not currently available or available within a reasonable time.
“Unless a list of treatments that is available under the health benefit scheme is published, the system will pose a huge demand on the resources Malta allocates for patients seeking treatment abroad,” they said.