Patients who do not get the treatment that they need from the NHS within 18 weeks are to be given the legal right to free private care.

The Cabinet agreed this week that the legislation, placing maximum waiting times on the statute book for the first time, should be rushed through Parliament before the next election.

Cancer patients, in particular, will receive funding for private treatment if they have not seen an NHS specialist within two weeks of GP referral.

Downing Street says that the two legal rights, which will be unveiled in next month’s Queen’s Speech, are designed to entrench the dramatic reduction of NHS waiting lists over recent years — as well as allowing Gordon Brown to “throw down the gauntlet” to the Conservative Party in the election campaign.

With NHS budget growth likely to be sharply curtailed whichever party is in power, No 10 believes that the legislation will prevent waiting lists drifting back up.

“This will send a strong ‘no turning back message’ to voters,” a senior government source said. “David Cameron will have to decide whether he wants to repeal this measure and take rights away from patients.”

The Tories have promised to phase out all NHS targets, including those for waiting times, saying that patients should make “informed choices” about their care without hospitals being forced into a straitjacket of government regulation. “Labour always focuses on the process while we think what really matters is whether you are better after your treatment,” a Conservative spokesman said.

Patients are currently offered a choice from a range of NHS, independent and private provision only at the outset of their treatment. They are obliged to stick with that decision even when their treatment is delayed beyond the existing target time limits.

The new rules will allow people to switch to a different hospital, including those in the private sector, if they have been made to wait longer than 18 weeks for treatment by a specialist after seeing their family doctor.

When Labour policy documents published this summer first raised the prospect of a legal entitlement on waiting times, ministers had still not agreed on the timing of legislation and the enforcement mechanism.

The Queen’s Speech on November 18, setting out the Government’s legislative programme for the final months before the election, will promise that the measure for England will be in place within months.

Ministers plan to issue executive regulations that turn key waiting time pledges from the new NHS constitution into legally binding rights. Downing Street suggested yesterday that although parliamentary approval was not needed to amend the Health Bill, MPs were likely to be given a vote.

Draft legislation is understood to say that primary care trusts must monitor whether patients are languishing in the queue and inform them of their rights for alternative provision. The trusts will be required to “take all reasonable steps” to ensure patients are treated immediately either by the NHS or the private sector.

According to the latest figures from August, about 37,000 patients had not received treatment from an NHS specialist within 18 weeks of their GP referral. There are legitimate clinical explanations for some — and others are caused by patients cancelling their own operations to go on holiday — but officials believe that about half have been “failed by the system”.

Andy Burnham, the Health Secretary, told Cabinet colleagues this week that the new legislation would mean that underperforming hospitals would lose funding from patients going elsewhere and “act as a powerful challenge for them to raise their game”.

Jennifer Dixon, of the Nuffield Trust, said the plans could be seen as “Tory-proofing” the NHS. “It would not only give patients enforceable health care entitlements but it would also prevent managers and clinicians from controlling waiting times as a way of limiting demand and saving money,” she said. “In the past requirements to make financial savings often resulted in hospitals stopping routine surgery for a couple of months before the end of the financial year.”

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