PATIENTS who are forced to wait longer than doctors would advise for NHS treatment can travel abroad for care and reclaim the cost after a landmark court ruling.

The European Court of Justice said yesterday that the NHS must refund the cost of foreign care if patients endure “undue delays” for surgery in Britain.

The judgment, in a case taken by Yvonne Watts, a grandmother awaiting a hip operation, could have serious cost implications for the NHS if large numbers of Britons decide to go abroad for care.

Mrs Watts, 75, defied the NHS to have a £3,900 hip operation in France, despite being warned that Bedford Primary Care Trust would not authorise payment.

The European court confirmed yesterday that, under European Union rules on free movement to provide services, one EU healthcare system must pay the bill if a patient is obliged to look elsewhere in Europe for treatment because of delays. But the judges did not award Mrs Watts her the £3,900 because they said that it was up to the British courts to decide whether, in her case, she had faced an “undue delay”. They said that this should not be judged on whether the trust complied with a government waiting-time target, but on clinical opinion.

Mrs Watts took the case after the Bedford trust refused to cover her costs in France. Despite having arthritis and being in constant pain, she had initially been told that she would have to wait for a year for a “routine” operation at her local hospital in Bedford.

Her local health authority also refused to grant her an E112 form, which would have allowed her to undergo medical treatment in another EU country, after offering her a reduced waiting time of three to four months. It said that this did not amount to an “undue delay”.

After the judgment, Mrs Watts said of the surgery, which took place in the city of Abbeville: “I have been given a new lease of life. I was in quite a bit of pain and I just wanted to get it done.”

Richard Stein, her solicitor, said that the court’s verdict would now act to regulate possible cutbacks in the NHS. He added that Mrs Watts would continue her fight in the British courts to recover the money that she had spent on the operation.

The Department of Health had argued in court that if all NHS patients were guaranteed reimbursement of their medical costs when they opted for treatment abroad, it would seriously undermine the NHS system of administering medical priorities through waiting lists. “[This] judgment clarifies the previously existing entitlement to hospital treatment abroad at NHS expense under certain circumstances,” a spokesman said.

Margaret Stockham, chief executive of the Bedford trust, said that the judgment did not necessarily mean that Mrs Watts would be reimbursed, and she believed that the trust had acted appropriately.

Karen Jennings, head of health at the public sector union Unison, said that the ruling was “no way to develop health policy”. She added: “The EU needs to be more strategic about health policy because you cannot rely on the courts to develop it in a way that is in the best interests of all.”

The British Medical Association said that it welcomed the court’s view that government targets alone should not determine how long people had to wait for treatment. Edwin Borman, chairman of the BMA’s international committee, said: “When patients seek treatment overseas, doctors should be free to make a decision based on their clinical need.”

NO RUSH TO SEEK OVERSEAS SURGERY

What are the implications of today’s ruling? Will it open the floodgates for British patients to get their operations abroad? Patients already have the right to go abroad for treatment and to get their local NHS trust to reimburse them, if they face an “undue delay”. The ruling states that clinical opinion, rather than Government targets, should determine what qualifies as undue delay. The British courts will determine, case by case, what “undue” means. More patients are now entitled to go abroad and seek reimbursement

What effect would that have on NHS finances?
The effect on total spending should be neutral because these patients would have been treated here, sooner or later. Hospitals, which are now paid “by results” — or more accurately per treatment — will lose income

How will the British courts decide whether Mrs Watts faced an undue delay?
They will have to look at her medical condition and review evidence about how urgent her operation was

What is the lesson for those on NHS waiting lists; should they go abroad?
Waiting times are coming down. Until the courts rule on Mrs Watts’ case, rushing abroad does not seem sensible: she may yet lose

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