The Department of Health is preparing itself for a challenge through the European Court of Justice on the rights of UK citizens to be treated abroad at the NHS’s expense.

Draft guidance issued by the DH last week warns that a draft European Union directive on the internal EU market means NHS commissioners have “limited grounds” to refuse to reimburse UK citizens the cost of their care if they opt to have it elsewhere in the EU.

The guidance suggests the DH is gearing up for a battle as it will demand that patients wanting expensive or “hospital” treatment ask their PCT’s permission first

It says that in general, primary care trusts must reimburse the patient up to the NHS price of the treatment. It says that should include treatment carried out privately, but PCTs should not pay for care that would not have been provided by the NHS, such as certain cosmetic surgery.

But the guidance suggests the DH is gearing up for a battle as it will demand that patients wanting expensive or “hospital” treatment ask their PCT’s permission first.

Although the European Court of Justice has ruled that a pre-authorisation requirement can be justified for “hospital care” it has not defined that.

Draft regulations from the DH define this as: services requiring at least one night’s stay; surgery - including dental surgery if under general anaesthetic; services using “specialised and cost intensive medical equipment” - particularly diagnostics; expensive and specialist services and any other services specified by the PCT or health secretary.