Implications for national sovereignty and trade rules have not been realised

The NHS white paper Delivering the NHS Plan continues the British government'scommitment to “engage more constructively with the private sector” by giving patients a choice among public and private providers.1 Building on the concordat between the private sector and the NHS, and the discussion document Extending Choice,2 the white paper pledges that from July 2002 patients waiting six months for a heart operation can choose an alternative provider, “be they public or private.” Extending Choice promised that by 2005 all hospital patients should be able to opt for treatment in “local NHS hospitals, NHS hospitals or diagnostic and treatment centres elsewhere, private hospitals, private diagnostic and treatment centres, or even hospitals overseas.”

The use of patient choice as a means of involving the private sector in the delivery of NHS care follows a series of rulings of the European Court of Justice. In the landmark Kohll case about patients' freedom to go to other European countries to get publicly funded health care,3 the court ruled that patients can cross borders to get publicly funded “indispensable” treatment in the event of “undue delay.” Indispensable treatment, according to theEuropean Court of Justice, is treatment “sufficiently tried and tested by international medical science.” Undue delay, however, has not been defined.

These …