End to HIV Treatment Charges?

posted: 07/05/2009

During the debate on the Health Bill in the House of Lords yesterday, the Government announced its intention to conduct a review of NHS charging for HIV treatment, which affects some migrants.

Deborah Jack, Chief Executive of NAT, comments:

“NAT was instrumental in securing this Government review, which is the first step to making access to HIV treatment in the UK a reality for all. NAT was one of the first organisations to recognise the unfairness in the treatment charges introduced by the Department of Health in 2004, and has worked with parliamentarians to use the Health Bill as an opportunity to review HIV treatment charges. We hope the review of current evidence will show that HIV treatment should be exempt from charges. This would ensure that some of the most vulnerable people in the UK would be able to access the vital care they need, both improving their health and reducing the risk of HIV being passed on.”

George House Trust's response

George House Trust warmly welcomes this announcement of a change of heart by government. In the last ten years the charging rules have been tightened, and the department of health has issued dodgy guidance - and been ticked off for this by the courts.

We need to wait to see the detail but it is excellent news that the government has at last responded positively to end the human rights violations and the harm treatment charging causes individuals and HIV prevention in England.

George House Trust drew attention to the International Covenant on Economic, Social and Cultural Rights which the UK signed over 30 years ago in 1976. Governments since have failed to make this part of our own law. This Coveneant gives everyone in any country the 'right to the highest attainable standard of health' and that means accessible HIV treatment for all in the UK. The current rules deny us this basic right in the Covenant.

The department of health's own guidance advises NHS Trusts to follow a human rights approach in providing healthcare but despite this keeps its charging rules.  Human rights in health - a framework for local action, 2007.
 

The Lords announcement

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

Swiss Court Frees HIV+ Man

posted: 10/03/2009

In the first ruling of its kind in the world, the Geneva Court of Justice has freed a man given 18-months prison for exposing someone to HIV.The court ruled that the risk of HIV transmission while the man was on treatment was far too low to justify the conviction.

In Switzerland, public health law effectively made it a crime simply for people with HIV to have any  unprotected sex. However this court has now changed this. It accepted expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. It ruled that this level of risk was far too low to keep unprotected sex a public health crime.

The case began in Lausanne in 2007, when a court sentenced the HIV-positive man, originally from the Democratic Republic of the Congo, to a suspended 28-month sentence for having unprotected sex, without telling his woman partner his HIV status.

Swiss HIV Law

Under the public health parts of the Swiss criminal law, Article 231 allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. The UK doesn’t have a public health criminal law about disease exposure. Prosecuting and criminalising public health was dropped in the UK because it goes against the principle of encouraging people to come for testing and treatment. Criminalising public health drives people with health needs underground and protecting public health becomes far more difficult.

People with HIV in Switzerland can also be prosecuted under Article 122, for an attempt to engender grievous bodily harm. This makes it an attempted grievous bodily harm to have unprotected sex, even if there is no HIV transmission. People with HIV in Switzerland are jailed simply for having unprotected sex. This can't happen under English law. Here HIV transmission has to take place before the charge of "grievous bodily harm" can be made. There is no English crime of attempted grievous bodily harm.

Deborah Glejser of Swiss community HIV organisation, Groupe SIDA Genève, explains that although this public health law could be used even more harshly, to prosecute unprotected sex even when HIV status has been disclosed, in practice, the Swiss only prosecute HIV exposure without disclosure. Suspended sentences are normal so this man’s imprisonment was unusual.

Trial judge refused to consider Swiss statement

A second complaint last year led to the man standing trial again in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the man's lawyer had put forward the statement by the Swiss Federal Commission for HIV/AIDS as evidence, and Geneva's deputy public prosecutor wanted to suspend the hearing to consult with the Swiss HIV Commission, the lower Geneva court refused to allow this. This made it his second conviction so he was sent to jail for 18 months, in December 2008.

This clearly annoyed the deputy Public Prosecutor who felt justice was not being done or being seen to be done. The court refused to consider the evidence even the prosecutor thought was relevant. We are left with the suspicion that a white Swiss native would have not been jailed for 18 months like this black African migrant. The British pattern of a disproportionate numbers of migrants being jailed for HIV crimes is found across much of the globe

It's Super-Public-Prosecutor to the rescue

Late in February the deputy public prosecutor came to the rescue and told the Geneva Court of Justice that he was convinced by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000. Under the circumstances he wanted to appeal so as to withdraw the charge and for the court to cancel the conviction.

On Monday, the Geneva Court of Justice acquitted the man, who was freed  after almost three months in prison. Geneva’s deputy public prosecutor, Yves Bertossa, called for the appeal, told the newspaper Le Temps that although there is still some debate regarding the slight risks of transmission in people on successful treatment this should not be used unfairly: "One shouldn't convict people for hypothetical risks,” he said.

Swiss statement did what it set out to do

Professor Hirschel said that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues issued their January 2008 statement of advise for courts and prosecutors.

The Swiss panel has had enormous global attention and a great deal of criticism for openly talking about and applying the lessons of modern HIV treatment to the lives of people living with HIV. Swiss HIV clinicians wanted to put a stop to much of the jailing of people with HIV - simply for having unprotected sex without any HIV transmission.

Deborah Glejser of Groupe SIDA Genève added that Monday’s ruling means that, in Switzerland, HIV-positive people on treatment which is working properly should no longer be prosecuted for having unprotected sex. She hopes that this ruling will help people in other countries that prosecute HIV exposure – and she’s been contacted by many already.

Hopes for fall in global prosecutions

Last May, a five member US Court of Appeals for the Armed Forces panel rejected, but only by a narrow majority, an appeal by an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. And last July, a Canadian court considered and rejected the Swiss statement in the case of a man charged with having unprotected sex with six women.

Following Monday's ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."

source

Discrimination Protection for Partners

posted: 28/11/2008

Help push for the 2009 Equality Bill to protect partners, family and friends of people living with HIV from discrimination.

Over the last few years the laws protecting people living with HIV from prejudice and discrimination have greatly improved. However, a small loophole in current legislation means that the friends, family and carers of those same people can be discriminated against because others believe they might have HIV. In July the European Court of Justice made a landmark ruling that it is unlawful to discriminate against someone because they care for or associate with someone with a disability.

This effectively means that friends, family, partners and carers of people living with HIV are now protected from harassment and discrimination on the grounds of their loved-one's HIV status.

The Equality Bill which come before parliament in 2009 will need to properly recognise the ruling and its principles by including provisions to prevent "associative discrimination" in the Equality Bill when it comes before Parliament next year.

More details here

You can help push for this change by contacting your MP through Terrence Higgins Trust - very quick and easy to do here

Refused Asylum Seekers Face Court Ban

posted: 01/09/2008

Ministers plan to stop refused asylum seekers appealing to the high court against their deportation. A Home Office consultation paper published on 21 August proposes "streamlining" the asylum appeals process by blocking access to high court judicial reviews for some failed asylum seekers. Their cases are to be heard by a new “Upper” level of tribunal instead.

2007 asylum statistics - lowest since 1993

The Home Office also published its annual asylum statistics, which show 23,430 new claims for refugee status in 2007 - the lowest level since 1993 - with 12,300 claims in the first six months of this year. Most came from Afghanistan, Iran, China and Iraq. Zimbabwe produced 8% of all asylum applicants, the fifth largest number of applicants in 2007, with around 1,800 people. This was about 10% more Zimbabwean applicants than the year before, reflecting the political repression associated with the elections.

In 2007 just 6,540 asylum claims were approved, compared with the 23,430 applications in the same year - only about 1 in 4 applications are accepted.

Removal of failed asylum seekers in the first six months of this year fell to 6,000 as the Border and Immigration Agency focused resources on deporting foreign national prisoners reaching the end of their sentences. Total removals over the period reached 32,200, including 2,500 prisoners. The Home Office said it hoped to speed up deportations by increasing the capacity of the immigration detention centres by 60%.

Donna Covey of the Refugee Council said it was vital that the integrity of the asylum appeals process was maintained.
"One in five appeals are successful - this clearly shows that appeals provide a vital safety net," she said. We must ensure that the process is of the highest quality and that it is subject to effective judicial scrutiny." She added: "If the low numbers of asylum seekers to the UK were the result of the world becoming a safer, more peaceful place, then we would have something to celebrate. As it is, we have real concerns that people who need our help and protection are not able to get here to access it. We need to ensure that our borders remain open to refugees who are in fear for their lives."

The consultation paper Immigration appeals: Fair decisions, faster justice can be downloaded.
 

Consultation responses may be sent electronically to the consultation response mailbox appeals@homeoffice.gsi.gov.uk  Please include the words 'consultation response' in the subject title.
Or you can post your response to:
Andrew Elliot
Immigration appeals consultation
UK Border Agency
1st Floor Seacole
2 Marsham Street
London SW1P 4DF
Consultation closing date is 16 October 2008.
If you want your name kept confidential you must say so clearly.

Asylum statistics 2007 http://www.homeoffice.gov.uk/rds/pdfs08/hosb1108.pdf

edited from
http://www.guardian.co.uk/politics/2008/aug/22/immigrationpolicy.immigration
with details from the consultation document and asylum statistics