Regulation (EC) 1408/71, as amended by Regulation (EC) 2000/83, is the co-ordinating regulation covering the referral of patients abroad for benefits in kind, including hospital treatment. This regulation requires that patients seeking hospital treatment, in a EU member state other than their own, seek prior authorisation from their competent institution – ERHA-health boards in Ireland's case – prior to receiving this treatment. The most recent European Court of Justice judgments, in this area, have not changed this position in that they reaffirm the necessity for a person seeking hospital treatment abroad to seek prior authorisation from the relevant health board prior to receiving this treatment.
The European Court of Justice has ruled that due to the specific nature of hospital services member states should not be precluded from restricting the free movement of patients for the receipt of health care where such restrictions can be objectively justified. 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 are three such objective criteria set out by the European Court of Justice.