Yvonne Watts, 74, from Bedford, had been promised a reduced waiting time for treatment under the NHS, down from a year to three to four months; but she was in such pain from severe osteoarthritis in both hips that she spent almost £4,000 on surgery in France, despite the refusal of Bedford Primary Care Trust to authorise treatment abroad.

Yesterday she won the first phase of her challenge to the Government in the European Court of Justice over the Trust’s refusal to reimburse the cost.

The Court’s Advocate-General, who gives a first legal opinion on the case, declared: “The absence of a clearly defined procedure within the NHS for considering applications for treatment abroad restricts the possibilities for patients to seek treatment outside the system. It therefore constitutes a restriction of their freedom to receive services, and is contrary to the EC Treaty.”

The declaration is not binding and Mrs Watts will have to wait for the final verdict of the full Luxembourg court next year. However, the court follows the advice from the Advocate-General in about 80 per cent of cases.

When the case was heard this year, Mrs Watts’ lawyers told the judges that the trust had insisted she could receive treatment in a reasonable time, in line with government targets and her general state of health; but, the court was told, 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 case is the first of its kind involving the NHS to be challenged under EU law. The European Court has tackled challenges from individuals fighting private insurers refusing to pay for treatment abroad, but has never before been asked to rule in a case involving a state-funded service where the full cost is normally borne by the authorities.

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 period was reduced to three to four months.

Mrs Watts saw a French consultant in January 2003, after being told that she would have to wait for a year for NHS treatment. The advice in France was that her need for an operation was becoming more urgent.

A few weeks later she saw a British consultant, who recommended that she be moved up the NHS waiting list for surgery within three to four months, but Mrs Watts asked Bedford Primary Care Trust to reconsider its earlier refusal to authorise treatment abroad. When authorisation was refused, she decided to go to France anyway. receiving surgery a month later.

The Department of Health argued that if all NHS patients were guaranteed reimbursement when they sought treatment abroad it could undermine the NHS system of waiting lists.

Leendert Adrie Geelhoed, the Advocate-General, rejected the Government’s claim that EU rules on the free movement of services do not apply to medical services. He said: “The fact that the NHS is an entirely public body, funded by the State and providing health care free at the point of delivery, is irrelevant for determining whether the situation falls within the scope of the treaty. Budgetary considerations are valid only within the context of requests for treatment on a larger scale, which put at risk the financial stability of the system.”

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