Regulation (EC) 1408/71, as amended by Regulation (EC) 2000/83, is the co-ordinating regulation covering referral of patients to another EU member state for medical treatment. This regulation requires that patients seeking to travel to another EU state for the purposes of receiving healthcare must obtain prior authorisation from their competent institution (health boards in Ireland) prior to receiving this treatment.
The European Court of Justice has, in recent cases, ruled that EU member states are not precluded from restricting the free movement of persons for the purposes of receiving healthcare in another EU state, including the requirement to obtain prior authorisation, where such restrictions can be objectively justified. Three such objective criteria set out by the European Court of Justice are as follows: the risk of seriously undermining the financial balance of a social security system; the objective of maintaining a balanced medical and hospital service open to all; and the maintenance of treatment capacity or medical competence on national territory.
A scheme of prior authorisation must however be based "on objective, non-discretionary criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily". The Department issued directions some time ago outlining the objective criteria which health boards must consider prior to referring patients abroad for treatment. All health boards and the Eastern Regional Authority apply these criteria when reviewing applications.
