The case that alarms health ministers

Labour and Tories may argue about the future of the NHS, but the British public is voting with its f

It was always going to be a pensioner who would test the resolve of the government when it came to patients' rights. Yvonne Watts, a 72-year-old from Bedford, has thrown government lawyers and health service managers into a state of apoplexy over her decision to go to France for a hip operation. A high court ruling on her case raised the possibility of thousands of patients, facing long and painful waits for surgery, going abroad for treatment and leaving the NHS to foot the bill.

Watts, who suffers from arthritis, was told last year she would have to wait 12 months for a hip operation at her local hospital. She asked health managers for their approval to go abroad for surgery on the NHS, but was turned down. She seemed in for a long wait and life in a wheelchair. So she went anyway, and had the operation in Normandy this March. Then she mounted a case against Bedford Primary Care Trust and the Secretary of State for Health.

Although she lost the case on a technicality - health service managers had moved her up the waiting list by the time she had the surgery - the victory was hers. The judge, Mr Justice Munby, decided that under EU law, the state could not refuse to authorise treatment abroad if patients faced an "undue delay" at home.

But what constitutes an "undue" delay? For Yvonne Watts, the tolerable period of delay was deemed less than a year, though "significantly, but probably not substantially" more than the two or three months she would have waited once the operation was brought forward.

With 66,000 people in Britain currently staying more than six months on the list for orthopaedic operations, the ruling throws open the prospects of hundreds, if not thousands, of courtroom challenges. Waiting lists are no longer a barrier to a person's right to healthcare, the ruling makes clear. For 55 years, the NHS has worked on the basis of everyone waiting their turn; now, it looks as if the queue will become an undignified scramble for a lawyer.

Before patients head for the Eurostar terminal, however, they should note the conditions that the judge laid down. No one is entitled to treatment abroad without prior approval, in the form of written support from a GP and a consultant. A primary care trust would then have to grant prior authorisation. The trusts have braced themselves for a flood of inquiries from patients, which must then be sent to lawyers and strategic health authorities, who in turn are waiting for guidance from the Department of Health.

Other cases are in the pipeline, such as that of 67-year-old Robert Towner, who lives near Tunbridge Wells in Kent. He has been told he might wait a year for a hip operation on the NHS. But as his hip crumbles away, affecting the nerves and the joint, every day is painful. His wife, Maggie, told the BBC: "We talked about the possibility of having the operation done privately . . . but it would take every last penny of our savings." She also said: "He cannot wait for 12 months. He can't sleep and he can't walk very far."

The Department of Health, meanwhile, is considering the high court ruling and its implications for the waiting-list policy. Speaking after the judgement, John Reid, the Health Secretary, made the point that the NHS cannot reduce the queues over-night, and called for "realism".

Realism is all very well, but this appears to be a call for patience, which flies in the face of the government's promises to give patients more choice. And choice is the Holy Grail that underpins all of Labour's reforms - foundation hospitals, privately run treatment centres, computerised booking systems, walk-in GP surgeries. But when Tony Blair spoke of giving patients the right to choose which hospital they went to, he did not have Lille or Milan in mind. He was thinking more of a choice between Coventry and Birmingham. Patients, however, like the idea of a consumer-friendly health service, and appear to define the term much more broadly. (The Tories have cleverly capitalised on this with their "passport" system for health, partly reimbursing patients for the cost of going private.)

The Yvonne Watts ruling puts Labour under pressure as never before. Some legal experts are saying that, for urgent cases, anything beyond a month on a waiting list constitutes undue delay.

And Labour has good reason to worry about waiting lists. The number of patients in the queue has fallen to below one million, which is good, but latest official statistics show that those on the list wait longer than they did in 2000. Those waiting more than nine months rose from 49,000 to 52,000 by the end of August.

Added to this woe is the time they spend waiting to get on the waiting list. When she first became ill, Yvonne Watts was told she would have to wait 21 weeks to see an orthopaedic consultant. She booked a private appointment with him.

The loyalty of patients, particularly the elderly, is ebbing away, though all will express a high regard for staff. Twenty years ago, no 67-year-old would discuss going to Lille for a hip operation. Last year, more than 1,120 NHS patients were treated under the government's scheme to beat the queues. Many thousands more went of their own accord, and paid out of their own pocket.

As the research shows (above), even South Africa is considered a possible destination. Last year, more than 100 travelled there for heart surgery. People are more familiar with travelling and are better informed of other healthcare systems. Automatic loyalty is disappearing. People do not like being treated as statistics, and see the NHS as slow and unresponsive. It was certainly unresponsive to Yvonne Watts. The question now for ministers is: what happens to the NHS when patients no longer feel a duty to wait quietly, with British stoicism, in the long queue for care?

Jo Revill is health editor of the Observer