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

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