Yvonne Watts, 74, had been promised a reduced waiting time for treatment from a year to three to four months under the NHS. But she was in such pain from severe arthritis that she spent almost £4,000 on surgery in France.

In the first case of its kind involving the NHS to be challenged under EU law, Mrs Watts’s lawyer told judges in Luxembourg that Bedford Primary Care Trust should pay for the operation.

The Department of Health argues that if all NHS patients were guaranteed repayment when they opted to seek treatment abroad, it could create inequalities in the health service.

Her lawyer told the court that the trust insisted that Mrs Watts could receive treatment in a reasonable time in line with government targets and her general state of health.

But she was entitled under EU rules on free movement to travel anywhere within the EU if she faced an “undue delay” in treatment at home, the court heard.

Mrs Watts has already won a hollow victory in the High Court, which agreed she should be reimbursed “in principle”, but said that she had not faced an unacceptable wait under the NHS, once the original year-long wait for treatment was reduced to three to four months.

The EU judges were told yesterday that Mrs Watts had decided to see a French consultant about her hips in January 2003, after being told that she would have a year-long wait for NHS treatment.

The advice in France was that her need for an operation was becoming more urgent as her health declined.

A few weeks later she saw a British consultant who recommended that she be moved up the NHS waiting list to receive surgery within three to four months. But Mrs Watts wanted even swifter treatment abroad and asked Bedford Primary Care Trust to reconsider its earlier refusal to authorise such treatment.

When authorisation was refused on February 4 she decided to go to France anyway, receiving the necessary surgery in Abbeville a month later, on March 7.

Mrs Watts’s daughter, Julie Harding, said yesterday that they could not rely on the trust being able to carry out the operation within three or four months. She said: “We simply didn’t believe that even in three or four months she would have the operation, because operations are often cancelled three or four times.”

Ms Harding said that the case would settle the issue of whether healthcare providers can make decisions on how quickly they must offer treatment based purely on their budgets and the length of their waiting lists, or whether their overriding concern must be the suffering of the individual patient.

Lawyers representing the Department of Health told the court that if all patients were guaranteed reimbursement under these circumstances, the NHS system of administering medical priorities through waiting lists would be undermined.

The net result would be the diverting of NHS resources to pay for less urgent treatment for those who are willing to travel abroad, discriminating against others not wishing or unable to go to another country for treatment, the court heard.

The European Court of Justice has addressed challenges from individuals fighting private insurers who refused to pay for treatment abroad, but has never before been asked to rule in a case involving a state-funded service in the EU where the full cost is normally borne by the authorities. It will not rule until next year.

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