The European Commission has been asked to investigate whether a primary care trust can refuse to pay for drugs that are being funding elsewhere.

In a case which, if it succeeds, would set a precedent for local PCT decisions on prescribing, Tory MEP Chris Heaton-Harris is calling on the European Commission to examine whether local decision making breaks European anti-discrimination laws.

Mr Heaton-Harris has brought the case on behalf of constituent Russ Jones who pays for cancer drug Sutent to treat his abdominal cancer.

Warwickshire PCT decided not to prescribe the drug after the PCT's individual cases panel had decided that the drug would have limited effectiveness for Mr Jones. In a statement a spokeswoman for Warwickshire PCT said: 'These decisions are never made without a lot of thought and consideration, and each case is considered on an individual basis'.

NHS Confederation policy director Nigel Edwards warned that if the case succeeds it would set a 'precedent' which stop PCTs from making treatment and prescribing decisions based on local need.

'If this case succeeds there would be implications for the NHS which would have to be based on a system where there was one benefits package for everyone and would not take into account local variations'.

A spokeswoman for the Department of Health said: 'The Department has made it clear to the NHS that it is not acceptable for funding for licensed treatments to be withheld from patients simply because NICE has not published guidance on them.

'When making decisions on the funding of drugs, PCTs should not refuse to find drugs solely on the grounds of cost and should not rule out treatments on principle, but should consider individual circumstances'.