Court Rules on Treatment for Migrants

posted: 14/04/2009

Almost a year after the High Court said most migrants are entitled to free NHS hosptal treatment, the Appeal Court has now rejected that ruling. The long running struggle to ensure people living with HIV in this country always have free treatment will continue.

Although the Appeal Court ruling says there is no legal right to treatment, they did rule that the Department of Health Guidelines are unlawful.

Almost a year ago the High Court ruled that most migrants were "ordinarily resident" even if their asylum claim was refused. About a year before that the application was made to the High Court after a NHS hospital refused free treatment to a migrant. The Courts are very slow because there aren't enough courts and judges to deal with this type of case - a 'judicial review.'

Appeal Court rules

On the 30 March 2009 the Court of Appeal decided that the Department of Health's own guidance restricting access to healthcare for migrants is unlawful.

Solicitors brought a test case for the HIV and migrants organisations on behalf of a Palestinian former asylum seeker who is unable to return home and could not pay for treatment.

He was given the treatment he needed after the solicitors applied to court but the case went ahead anyway as a test case and to challenge to the government’s guidance.

At the High Court a year ago Mr Justice Mitting decided that refused asylum seekers could get free NHS treatment. His ruling was that migrants, including refused asylum seekers, are just as 'ordinarily resident' as any British person, and this entitles people to free NHS treatment.

Not lawfully resident

The Department of Health then appealed and now the Court of Appeal has overturned the High Court decision. The Court of Appeal rejected the High Court's approach, finding that refused asylum-seekers could not be lawfully resident in the UK. Anyone not lawfully resident cannot be ordinarily resident, and that means no right to free treatment.

However, the Court also decided that the guidance is unlawful because it fails to explain what hospital’s should do if a patient cannot pay for treatment and cannot return home immediately.

The solicitors are considering whether to appeal to the House of Lords or not, and would need the House of Lords permission to make an appeal. 

In the meantime there is likely to be confusion about how to apply the judgement and the new guidance. The Department of Health has wasted no time in telling NHS Trusts to follow the Appeal Court's ruling.

Reactions to ruling

Solicitor Adam Hundt of Pierce Glynn, who took the case commented:

“The Dept. of Health guidance said that hospitals should not provide treatment unless patients paid for it in advance, but this ignores the fact that many of these patients, like A, are destitute, and many cannot return home, so they are not treated until they require life-saving treatment. In my experience, sadly, by that time it is often too late, and that treatment is usually far more expensive, so the current rules don’t make clinical, economic or humanitarian sense, and I am glad that the Court has recognised this. I hope that the Dept of Health will now make it clear to hospitals that they must treat patients who cannot pay and cannot return home for the time being - and not just wait until they are at death’s door.” 
 

The decision disappointed refugee and health welfare groups. Donna Covey, of the Refugee Council, said she was concerned that the charging regime for failed asylum seekers was still in place. She said those people who were unable to go home straight away often ended up destitute and homeless. "To refuse treatment to them simply because they cannot pay for it is appalling and inhumane," she said.

Deborah Jack, of the National Aids Trust, said anxiety over medical bills would deter many people from seeking the care they needed. She said the government should use its review of healthcare charges to end its policy of ill-health for the most destitute.

Department of health advice letter

The Department of Health has issued a letter to NHS trusts before the new Guidance is published in the autumn.

The letter says 

• Trusts shouldn't charge people treated free as 'ordinarily resident' for the period of time between the two court rulings
• people already on treatment are entitled to have it continued for free
• Trusts must always provide any immediately necessary treatment, including all maternity treatment. It's a matter for clinical judgement if care is 'immediately necessary.' HIV care could fall within this - especially if there is symptomatic illness, or CD4 count is low.
• Trusts must provide urgent treatment (which is treatment that isn't immediately necessary but which can't wait until the person can be reasonably be expected to return to their home country). This is likely to include HIV care under BHIVA treatment guidelines. It is a matter of clinical judgement whether the care is 'urgent'.
• Treatment should not be delayed or cancelled if the person can't pay for urgent or immediately necessary treatment.
• Trusts have the option to write off debts where it proves impossible to recover them, or where it would be futile to begin pursuing them, for instance when the person is known to be without funds (our emphasis - this will apply to most migrants with HIV).
• even non-urgent routine elective treatment can be provided depending on how long the person is likely to remain in this country - eg if the return home is not likely to be within a 'medically acceptable time.'
• immediately necessary, urgent and non-urgent treatment will require Trusts to assess when a patient is likely to return home based on "their plans, intentions or ability to do so."
• Trusts must not charge anyone identified as actual or suspected victims of human trafficking by either the UK Border Agency, or the UK Human Trafficking Centre. This is nothing to do with the Appeal Court, but because the European Convention on human trafficking came into force on 1 April.
• can't now bill the person's local Primary Care Trust for treating any people who are "chargeable."

The Department of Health letter says they will update the Guidelines, as required by the Court, in the autumn. HIV and migrants organisations will be pressing for a practical, humane approach.

People living with HIV in NW England who have problems with treatment charging for hospital care should always contact our services team.

The Appeal Court's ruling

Migrant Treatment Charges

posted: 17/12/2008

Before Christmas we expect the Appeal Court's decision on the government's appeal against the ruling early this year that all refused asylums seekers and many other migrants are in fact "ordinarily resident" and so fully entitled to all NHS free treatment, including HIV.

We are hopeful the Appeal Court will uphold the High Court's decision in the case which was supported by the entire HIV sector. But the Department of Health and the Home Office both still appear intent on restricting access to the NHS even further. They plan to extend the rules to cover primary healthcare, such as GPs. The department has been sitting on the results of a consultation on these proposed changes for four years, but is expected to release them shortly.

There is concerted opposition to banning migrants from primary healthcare, because a stitch in time saves nine - catch problems early and they are cheaper to treat and diseases don't spread; delay treatment by putting up charging barriers and we can safely predict expensive emergency hospital treatment and the spread of transmissable infections costing society far more than earlier care. But more important, it is the human and "right" thing to do for people in the country - and we made a commitment to treating all who need it to the world over 30 years ago in an international Convention that we are still breaking. The department does know what to do - it has recently published a guide to NHS trusts on the Human Rights approach to local healthcare.

Passports for treatment

Under the current system, asylum seekers who are awaiting a decision on their status are entitled to free primary healthcare, while even those who have been refused can be treated at a GP's discretion. But clinical decisions about who gets free care at times never reach doctors, says Dr Sally Hargreaves, of Imperial College London.

A study of GP practices in Newham Primary Care Trust, London, found that almost 70 per cent of practices asked for passports and about where patients had come from. This suggests frontline reception staff are inappropriately stopping migrants from seeing a GP. The government has said that the new ID cards now being issued to migrants (coming to everyone else over the next few years) will soon be used instead of passports to prove the right to healthcare and other services.

Confusion

Adam Hundt, the lawyer who won the court case, often gets calls from doctors who are unsure about what they should do with patients. “The clinicians are left with the decision between disobeying management or disobeying their Hippocratic oath,” he says.
 

Frustration and confusion surrounding who is entitled to free healthcare is echoed by the NHS. Nigel Edwards, director of policy for the NHS Confederation, says that the rules are “quite complex and keep changing. The Home Office has got to get its act together in not having large numbers of people waiting for their status.”
 

Donna Covey, chief executive of the Refugee Council, says: “The rules are complicated and people don't know how to apply them. You have the Immigration Minister not knowing the difference between asylum seekers and economic migrants, and if the minister responsible doesn't understand those differences, then you can't expect overworked and underpaid healthcare professionals to understand them.”

Thousands in healthcare no-man's land

There are thousands living in the UK stuck in a healthcare no man's land, including the estimated 155,000 to 283,500 failed asylum seekers, who, after their refugee status is refused, have nowhere else to go and often no means to pay for healthcare.

Charities that work with migrants say that the Government, in its effort to crack down on the supposed problem of “health tourism”, is victimising people such as failed asylum seekers and that because of confusion over entitlement, migrants often receive patchy and inconsistent care.

Treatment Catch-22

Many people are confused about their rights. Refused asylum seekers are caught in a Catch-22 situation: they cannot be deported immediately, yet cannot have free healthcare; nor can they afford to pay for it because they are not allowed to work. “We can't send them back tomorrow, so what can we do in the meantime?” 

 
How other European countries do it
Susan Wright, director of the health charity Médecins du Monde UK, says the problem with the government's claim that a “pull factor” exists - that people come to the UK for free healthcare - is that other countries in Europe offer equally flexible, if not more flexible, policies for free healthcare for undocumented migrants or asylum seekers.

• Italy: There are payment exemptions for asylum seekers and those with low incomes from the national health service.
• France: Undocumented migrants can access a state-financed insurance fund.
• The Netherlands: The Government has set aside money for “medically necessary” care for undocumented migrants.
• Belgium: Undocumented migrants can access government-sponsored Emergency Medical Aid, which gives free access to A&E and other services.

Includes material from source