If the NHS is unable to put the genie back into the bottle, the ruling could open the floodgates for a host of similar claims against the NHS and allow patients the chance to shop around for quicker treatment elsewhere in Europe. Mrs Watts's solicitor suggested today that it might also deter hospital managers from using waiting lists as a budgetary tool.
Mrs Watts had originally been told that she faced a waiting time of one year for a hip operation. She then saw a consultant who moved her up the waiting list because of her declining health and told her that she would have a wait of three to four months.
She asked the Bedford Primary Care Trust to authorise swifter treatment but this was refused. Mrs Watts went to France anyway, receiving the necessary surgery in Abbeville one month later for £4,000.
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.
The DoH also argued that such a move would divert NHS resources to pay for less urgent treatment for those willing to travel abroad, and discrimination against others not willing or unable to go to another EU country for surgery.
Mrs Watts, who has avoided publicity since launching her legal campaign, would not be drawn on a comment about her landmark court victory this morning, saying only: "It is wonderful, after such a long time."
Her solicitor, Richard Stein, welcomed it as "reasonably good news" but said that Mrs Watts would still have to continue her battle to get her money back.
"The reality is that this was not ever going to be the end of it," said Mr Stein. "The Court of Appeal thought that we were right but thought it had such implications for the NHS that they should make sure by asking the European Courts of Justice.
"Whether or not Mrs Watts gets her money back is based on the determination that she faced undue delays."
Mrs Watts’s local primary care trust initially offered her a waiting time of 12 months in October
2002. But at a review, three months later in January 2003, she was given a reduced waiting time of four months, leaving her with a total delay of seven months during which time she funded her own trip to France, said Mr Stein.
"It cannot be right that the review sends the date back to zero. The delay was actually seven or eight months. I am confident they will find it was an undue delay," he said.
The European ruling, added Mr Stein, would now mean that waiting lists would be determined by individual assessments not by a wide-ranging hospital policy.
"Waiting lists are now smaller than they were in 2002 but with all the new financial crises in the NHS we may find that waiting lists increase again," he said.
"Waiting lists are seen as a mechanism for regulating spending. This case should make sure that they do not do that. It’s going to be a way of protecting the NHS because it stops them doing it. It forces them to provide a proper coherent policy."
The case is the first of its kind involving the NHS to be challenged under EU law. The European judges said that the decision on what amounted to an "undue delay" should not be based on either National Health Service waiting lists or Government NHS targets. The decision was to be based entirely on the individual patient’s medical condition and circumstances.
Katherine Murphy, a spokeswoman for the Patients Association, said that the case raised important questions about why people felt they needed to travel abroad. There needed to be less focus on targets and more consideration of a patient’s clinical need and their quality of life, she added.
"We must ask ourselves why are people opting to go abroad? Why don’t they want to stay with the NHS in this country? Things such as deficits really concern patients who are waiting for operations or any form of treatment," she said.
"In this case, her GP should have researched and seen if there was anywhere else in the UK that would have performed this without her having to wait. She said there were several worries about patients going abroad for treatment, including the cost and the possibility of feeling isolated from friends and family.
She added: "There are also questions about the after-treatment. What if things go wrong? If somebody has an operation abroad but then needs things like physio, X-rays or other investigations, do they have that treatment here or do they stay abroad?" |
