A patient who was diagnosed with a rare type of brain tumor, sought the help of the Ombudsman to be refunded for expenses he incurred to seek treatment abroad. The patient’s family were informed that there was no effective cure locally and that his case was inoperable. The Health authorities also sought the advice of Surgeons in a renowned London hospital who were of the same opinion.
The patient and his family could not accept this ‘death sentence’ and they researched alternative options abroad. Through their search, they identified a hospital in Germany who dealt with similar cases successfully. Eventually, the patient and his family went to Germany and the patient was operated at his own expense.
The complainant insisted that although he understands that certain specialised treatment cannot be given in Malta, however systems should be in place to assist patients in these circumstances. He insisted that the right of life is a basic Human Right. He subsequently asked the Department of Health for a refund of the expenses incurred. His request was turned down by the Department and therefore he submitted a complaint to the Ombudsman. The Ombudsman accepted to investigate the matter and referred it to the Commissioner for Health.
Facts and Findings
The Commissioner immediately took up the case with the Health authorities and requested their comments. Following a series of correspondence on the case the Department of Health informed the Commissioner that it had been decided that since the procedure was carried out in a private institution, the department will reimburse the costs of similar treatment carried out in the public sector.
To the patient’s dismay, the amount offered by the Health Department fell far short of the expenses incurred. In fact the sum reimbursed amounted to only 14% of the total cost the family had to pay. The complaint’s family complained with the Commissioner that in their circumstances they had no alternative than to seek for the cure abroad as that was their only hope.
The Commissioner asked the Permanent Secretary in the Health Ministry to comment on the case asking a series of clarifications. The Commissioner reiterated that since the health authorities decided on no intervention and the patient was given just few weeks to live, the patient could not be faulted to search for an alternative which he found abroad. The Commissioner explained that since the department based its decision on the advice given from the UK, and Government sponsorship was not approved neither through the Treatment Abroad Advisory Committee nor through the EU Cross Boarder Directive, the only alternative the patient had to seek treatment in the private sector.
Adding to that, the Commissioner reported that, according to the complainant’s family, the patient’s condition improved considerably. He suggested that the department could verify the patient’s progress by asking local consultants to submit a report on the complainant’s condition comparing his state pre and post operation.
The Permanent Secretary replied by explaining that the amount reimbursed was the equivalent cost of the same surgical procedure carried out in the UK National Health System within the framework of the Bilateral Agreement between the two countries. Therefore the Health Authorities stood by the amount they had offered.
The Commissioner took the matter to the European Commission Representation (ECR) in Malta asking them for their advice. On their part the ECR referred the case to the Health Care System Unit and the Directorate General for the Health and Food Safety in Brussels. In their reply the EU Commission DG Health informed the Commissioner that the person concerned had to seek authorisation from the Health Authorities in order to pay directly for the treatment received. Otherwise, if the patient had paid the costs directly, as in this case, the costs should correspond to those benefits within the limits of and under the conditions of reimbursement rates laid down in its legislation.
Conclusions and Recommendations
The Commissioner informed the complainant that the Department of Health confirmed that it cannot give any reimbursement other than that already given.
He also informed the complainant that he looked into the European Union regulations and Regulation 987/2009 laying down the procedure for implementing Regulation (EC) No. 883/2004 which states:
- Article 19(1) – treatment shall be provided “in accordance with the provisions of the legislation it applies” i.e. as if the treatment was being carried out in Malta.
- Article 20 – the person concerned “shall seek authorisation from the competent institution” so that the local institution – in this case the Department of Health – shall “bear the cost of the scheduled treatment”.
- Article 25(B)(4) states that if the person concerned “has actually borne the costs” “the costs correspond to those benefits within the limits of and under the conditions of the reimbursement rates laid down in its legislation”
- Article 27(4) – the cost of the treatment shall be that which the institution (Department of Health) would have incurred had the treatment been given “state of residence” i.e the expenses that would have been incurred had the treatment been given in Malta.
Considering that, even though the complainant did not seek prior approval, the Department of Health has refunded the cost it would have incurred had the treatment been carried out in England which is more than the cost in Malta.
Therefore, in the circumstances, the Commissioner was not in a position to state that the Department of Health had acted incorrectly and the request for full refund could not be upheld.