The NHS may have to pay to treat patients abroad if they cannot operate quickly enough, the High Court has ruled.
Yvonne was able to climb up the stairs after her operation
Yvonne Watts, 72, from Bedford, lost her case demanding the NHS pay for her French hip replacement operation - because she had not waited long enough.
But the judge ruled that, in principle, other patients suffering "undue delay" could go abroad.
He said this applied even if their cases met NHS waiting list targets.
Even though Yvonne Watts, from Bedford, lost her particular case, the principles set down in the ruling could open the NHS to further claims from patients who have been waiting long periods for operations.
Mr Justice Mumby said an assertion by Health Secretary Dr John Reid, that no patient waiting less than the official 12-month target qualified for paid overseas treatment was incorrect.
He described Dr Reid's claim that thousands would flood abroad and leave "overcapacity" in the NHS as "speculation unnourished by common sense"
He said: "Common sense suggest that those who go abroad make that choice only because
of the delays which they currently experience in the NHS."
He said the period of delay which was tolerable before it reached the level of "undue" was much less than a year, although more than the three or four months delay faced by Mrs Watts.
Under European Community law E112 rule, any EU citizen suffering so-called "undue delays" in receiving treatment in their home country can apply to have the operation in another member state.
Mrs Watts required a hip replacement operation, and was initially told that the wait would be 12 months.
She shortened that time by paying for a private consultation and putting pressure on the hospital to move her up the list, but was still offered an eight month wait.
When she applied for authorisation to go abroad for treatment under the European Community rule, Bedford Primary Care Trust told her it was not necessary because it was meeting the Government's then target waiting time of 15 months for in-patient treatment.
It was at this point that she decided to book the operation abroad in a hospital in Abbeville, northern France.
Following this decision, the trust reviewed her case, decided it was more urgent and offered to carry out Mrs Watts' hip replacement within three to four months, despite a general in-patient waiting list of 12 months.
Mrs Watts was offered a "slot" on 6 May this year, but she chose to travel to France, where she had a right hip replacement on 7 March.
The High Court ruled that the fact her operation had been brought forward in this way meant that her own wait did not constitute an "undue delay" - and she should not receive any compensation.
However, they said that, in principle, people suffering an "undue delay" - not precisely defined in this case - should be entitled to both go abroad paid for by the NHS, regardless of waiting list targets set by the government.
Afterwards, Mrs Watts's daughter, Julie Harding, said she was "very pleased"
with the judgment even though it was a "bit of a mixed result".
She said: "We have established that the primary care trust was wrong in law to simply
use waiting lists as a reason to refuse my mother permission to go abroad for
Mrs Watts' solicitor Richard Stein said: "This judgment is a
very good one for patients who will now be able to choose to have urgent
treatment earlier by going abroad rather than waiting, often in considerable
pain, on an NHS list.
"It will also benefit other patients on the waiting list who do not go
"It shows that waiting lists are an unfair restriction on a patient's access
to treatment. NHS waiting times in the UK will have to be drastically reduced.
"Although Yvonne Watts's claim has failed on a technical point, she is
delighted that others facing the same pain and wait will now have more choice
for earlier treatment."
The government has been working to reduce waiting times for surgery - currently there are fewer than 200 people who have been waiting more than a year for an operation in England.
It is already an acknowledged part of their plans to allow patients who wait unusually long periods for surgery to opt for foreign treatment, alongside treatment a different NHS hospital of their choice.
A spokesman for the Department of Health said: "This is a complex case and we need to consider the detail. We are looking at any wider implications for the NHS.
"Our objective is to reduce the length of time that people wait. Waiting times are falling and we are committed to continuing this progress."
Alan Loynes, the chairman of Bedford PCT, said: "The PCT at all times acted within Department Of Health guidelines, we seek to give all our patients including Mrs Watts equitable access to the best possible care.
"We will be discussing with our lawyers before we decide how next to act."
James Campbell is travelling to India for knee replacement surgery.
He waited nine months for an appointment with a specialist who confirmed he needed the surgery, he faced a two year wait on the NHS.
"When I get back from India, I'll have to look into this and see what can be done," he told News Online, on the eve of his departure.
"I would certainly think about trying to claim compensation for having to go to India for my operation. I guess that it's going to take a long time. And will it cost more than I'll get back?
"I would like to get some money back, having worked all my life. I've never been in hospital at all. I've never been a burden on the system.
Read a selection of your comments about this issue below.
This is not strange. The NHS should be exploring more opportunities such as this to reduce the domestic waiting lists. Why not tap into hospital capacity in countries such as India? Business Process Outsourcing is already allowing companies to source their IT and services overseas. Why not healthcare?
Mark Kobayashi-Hillary, London, UK
I took my father to Belgium for a knee replacement because of a six month waiting list with the NHS. The private UK option was very expensive. The care and Attention he received was second to none at a reasonable price. I was told and informed that if his GP and consultant agreed and wrote to the area Trust about his discomfort with waiting they would issue an E112 allowing for his operation in Belgium done free. I never followed this route. Since his operation I am helping people to go to Belgium and Germany to receive treatment as I did for my Father. It is a very good option and can advise anyone that it is a worthwhile experience.
I suppose that the judge has made the right decision in this case. When people have pain every day and there are possibilities to help them in another country within a reasonable time, while this is not possible in your own country there should not be restrictions for treatment. I think that will support the government to improve her own healthcare system.
This is crazy. We've got hospital tourists coming to the UK because they will get free healthcare, and the UK is having to pay to send other patients overseas for treatment because the waiting lists are too long. Therefore we lose out twice.
David, Leeds, UK
After waiting over seven months for an appointment, my husband saw the specialist on Monday. He was seen for just over five minutes. His hip is actually crumbling and he is in constant pain, has difficulty walking, and wakes in pain during the night. Despite this, he was told the waiting time for a replacement hip is 9 - 12 months and there was no way he could get preferential treatment. We had just been looking at an article on the internet by a gentleman who had his op in Cape Town. The total cost was £7,000 but that included air fares for him and his wife, and accommodation for the 6 weeks they were over there. That was less than he had been quoted by BUPA to have it done privately over here.
My husband and I had been discussing whether he should use what is left of his lump sum from his pension, when we saw the report on BBC news tonight. I will be contacting the hospital in the morning regarding the possibility of him having the op in France under the EU ruling.
Maggie Towner, England
My wife and I both live in Greece and have both had occasion to use the main Greek health service IKA. In all cases we have received excellent treatment with no delay at all. As an example, within days of discovering mild hypertension my wife had seen a specialist, had all necessary tests, including full blood and urine tests, X-ray, ECG, ultrasound, CAT scans and additional specialist blood tests. This is for a totally non-life threatening complaint where any delay would not have been very serious. All costs were covered by IKA. The NHS seems to still view itself as a world leader in "Free at point of delivery health care". While it might be a leader in researching new procedures, in reality, for run of the mill complaints, it is very far behind
I have not had to wait any time for an operation as I have not been seriously ill but all treatments I have had have been minor. I would be prepared to go abroad if I were forced to wait a long time for any treatment. I think people who have never had treatment for any serious illness should be given priority over those who have constant treatment when they bring the illness upon themselves such as smokers, drug takers and excessive drinkers for example or those who are gluttons or act in a irresponsible way. How about that as a thought?
David Phillips, England
I came out to live in France twelve years ago. My mother was in need of a new hip and was told in the UK in 1990 that it would be a three to four year wait. In 1993, the local town doctor here in France asked for a X ray of the hip, which was done immediately in the local clinic, next day a consultation with the surgeon in Carcassonne general hospital, with the operation performed 48 hours after diagnosis. The cost was 70 frf per day for use of the bed and food. The consultants' office is yearly on the phone to my mother asking her when she wants the other one done.
I damaged my knee in November 1999 and am still waiting for the operation to fix it. Scans were continually delayed, operating dates cancelled. Finally they tried to cancel the operation by phone and I created such a stink they agreed to proceed. But then I was undressed and ready to go to theatre when they found "problems" which prevented me being operated upon. Twelve months is a fantasy. At this rate it will be four or more years!
Mike Bryant, UK
It is unfortunate that patients wait so long for hip operations. Elderly patients who do not receive a hip replacement after a fracture have an increased risk of dying within a year, often due to pneumonia. The activity that a hip replacement enables is vital to one's health. Though it may not appear so on the surface, a hip replacement is an operation to save someone's life.
Yes, I had at one time, waited eight years. In particular, it was for hip replacement.
Although in the States, it was for considerations other than government policy. The extent to which there is similarity with UK patients was the hardship imposed by travelling to another state (cementless techniques became available only at a few medical centres and were no longer considered experimental by insurance companies). However, it is extremely wearing, even with bulk head seating and inter-airport transport, to travel before and after surgery (one time having had to do so with a layover due to bad weather).