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Last Updated: Thursday, 15 December 2005, 11:15 GMT
Boost for foreign op costs woman
Yvonne Watts
Yvonne was able to climb up the stairs after her operation
A pensioner who is trying to recoup the cost of having her hip operation carried out in France has been given a boost by a European judge.

Yvonne Watts, 75, from Bedford, went abroad in 2003 because she felt the waits in England were too long.

She lost a High Court claim for 3,900 costs, and the case went to the European Court of Justice.

The court's advocate general said the NHS has no proper procedures to assess applications for treatment abroad.

This could pave the way for more people to pursue the option of having treatment abroad if they are in desperate need
Julie Harding

This, he argued, restricts the possibilities for patients to seek treatments outside the system, and therefore is a restriction of their freedom to receive services.

He also said NHS waiting targets were not flexible enough to judge patient need.

The advocate general's guidance is not binding, but will be taken into account by judges.

A final ruling is expected next spring.

Hopeful development

Mrs Watts' daughter, Julie Harding, said the decision "bodes well" for the future.

"We appear on the face of it to have won most of the arguments that our legal team put forward.

"This could pave the way for more people to pursue the option of having treatment abroad if they are in desperate need."

The Department of Health has previously argued that if NHS patients could claim a right to treatment in other countries, this would be at the expense of patients in the UK with more serious conditions who didn't travel abroad and could create inequalities in the system.

The case was passed to the European court after the High Court ruling, which while deciding against Mrs Watts said the response by Bedford Primary Care Trust was wrong.

The pensioner was diagnosed with osteoarthritis in both hips in September 2002.

She was told she would need a total hip replacement on each side.

She was denied permission by Bedford PCT as the surgery could be provided within the NHS target of a year.

Condition worsened

In January 2003, doctors told her the condition had worsened and would be treated within four months, but again she was told she could not go abroad.

Mrs Watts travelled to France for the operation in March 2003 and afterwards applied for a judicial review to get her costs back.

In October 2003, the UK High Court rejected her application.

It ruled while the PCT was wrong to say her situation fell outside the scope the EC Treaty, which governs a person's ability to receive services abroad, the reclassification of her situation in early 2003 meant she would have received her treatment without undue delay.

Both Mrs Watts and the government appealed against the decision and it was passed to the European court.

A Department of Health spokesman said: "The court's judgement may or may not follow the lines suggested by the advocate general.

"The department will consider its policy on treatment of patients in other member states in the light of the court's judgement."

To date, patients have only been treated abroad on the NHS if the treatment is not available in England or if they would have to face an extraordinary long wait.

By the end of this year no patient will be waiting longer than six months.

MEP John Bowis, Tory health spokesman in the European Parliament, said the government should set out clearer guidelines to stop cases such as Mrs Watts coming to court.

He added it was important this "matter of life and death" should not remain a grey area.

The daughter of Yvonne Watts speaks about the European Court's decision

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