To treat or not to treat?
Date: 30 October 2009
Authors: Adam Hundt
Issue: Vol 159, Issue 7391
Categories: Features, Human rights, Community care
The NHS (Charges to Overseas Visitors) Regulations 1989 (SI 1989/306) (the regulations) provide that overseas visitors must be charged for secondary care they receive, unless one of the many exemptions in the regulations applies.
Some types of treatment are exempt from charging, eg for infectious diseases such as TB, or STDs, but not for HIV; some types of patient are exempt from charges, eg refugees or people who have been lawfully resident in the UK for more than 12 months; and some types of nationality are exempt, eg people from countries with a reciprocal agreement with the UK.
Interestingly, both primary and secondary legislation in this area concentrates solely on charging for treatment. No mention is made of withholding treatment but the obvious question, once a charging regime comes into being, is what happens when a patient cannot pay?
The Department of Health issued detailed non-statutory guidance on the implementation of the regulations which addressed this problem to some extent, but made no distinction between an inability to pay and a refusal to do so, or between a short-term “tourist” who could return home whenever they chose, and the longer-term migrant who may be unable to return home even if they were willing to do so.
The guidance advised hospitals to demand payment in advance for “non-urgent treatment” and also, if at all possible, for “urgent treatment”. Hospitals were advised to always provide “immediately necessary treatment” regardless of whether the patient could pay or not, because a failure to do so could breach the patient’s rights under the European Convention on Human Rights (the Convention). Defining the type of treatment was a clinical decision, not an administrative one, and maternity treatment was always considered immediately necessary.
The difficulty with this was that no mention was made of when a patient could be expected to return home or not, and hospitals were not in a position to assess that adequately. More prosaically, hospitals would not be reimbursed for the treatment provided to chargeable patients, so there was an inherent incentive to minimise the provision of treatment in these circumstances.
The consequences of this were predictable—many patients, from pregnant women to cancer sufferers, were denied treatment that they needed, in some cases very urgently, because incorrect assumptions were made about their means and their immigration status.
Bringing the problem into focus
In late 2006, Mr YA, a Palestinian man suffering from chronic liver disease, was refused treatment for what doctors suspected was either lymphatic cancer or liver failure. He needed a biopsy to establish which diagnosis was correct, so that appropriate treatment could be given.
The biopsy was a pre-requisite to a clinical assessment of how urgent his treatment was, and whether it should be provided irrespective of payment, but the assumption made by the hospital (after seeking advice from the Department of Health and the Home Office) was that he could return to Palestine whenever he chose, and that he would therefore have to pay in advance before any treatment was provided.
Mr YA was destitute, so this was, effectively, a refusal of treatment. He applied for judicial review of both the hospital’s decision and the guidance that gave rise to it, thus naming both the hospital and the secretary of state for health as defendants. He argued that he was both ordinarily and lawfully resident in the UK; he had claimed asylum on arrival and was thus lawfully present, and would not be leaving in the foreseeable future.
He also argued that treatment must be provided in order to avoid a breach of his rights under Arts 3 and 8 of the Convention, because without treatment his condition would deteriorate until he required emergency treatment, by which time it might be too late to prevent his condition from becoming terminal.
The courts’ solution
Shortly after proceedings were issued the hospital agreed that Mr YA was entitled to free treatment. The government argued that the case was now irrelevant but the challenge against the guidance continued, with the support of a coalition of national and international non governmental organisations which all provided statements and case studies emphasising the importance of the matter and the numbers of people from whom treatment had been withheld.
Permission was granted, and in April 2008 Mitting J agreed that the guidance was unlawful on largely pragmatic grounds.
He decided that refused asylum seekers could be considered ordinarily resident or lawfully resident in the UK so long as they had been here for an appreciable period and intended to stay.
He did so because he felt that immigration decisions should be made by immigration officials, and clinical decisions should be made by clinicians. He went on to say, obiter, that the guidance did not breach Arts 3 or 8 of the Convention.
The government appealed to the Court of Appeal, and the High Court judgment was overturned (see R (on the application of YA) v Secretary of State for Health [2009] EWCA Civ 225, [2009] All ER (D) 300 (Mar)). Ward LJ decided that refused asylum seekers cannot ever be ordinarily or lawfully resident in the UK, and they must therefore be charged for any hospital treatment that they receive.
He went on to say, however, that the guidance issued to hospitals by the government was nonetheless unlawful, because it failed to take account of patients who are destitute or who otherwise cannot pay for the treatment that they need, and who cannot reasonably be expected to return to their country of origin within a “medically acceptable” period.
Implementation—part two
The government responded to the Court of Appeal judgment by issuing a letter to hospital chief executives emphasising that there is a two stage process that hospitals should follow in assessing whether an overseas visitor should be provided with treatment:
First, overseas visitors managers decide who should be charged for treatment.
Then the doctor must decide whether or not treatment should be provided anyway.
However, the letter failed to explain when a patient can be considered to be unable to return to their country of origin. No mention was made of fresh claims for asylum or leave to remain on human rights grounds, some of which lie pending for several years, and no mention was made of documentary difficulties and other practical obstacles to people’s return.
Hospitals were, however, advised to avoid deterring people from accessing treatment, and to write off debts if it proved futile to pursue them, eg the patient is destitute, but the letter also explained that hospitals would not be reimbursed for treatment provided to these patients, and therein lies the problem; every patient that receives treatment in these circumstances will affect the hospital’s budget, so there remains an inherent incentive to deter people from accessing treatment.
What about human rights?
Why did the Court of Appeal in YA not grapple with the human rights arguments that Mitting J dismissed at first instance? The answer is that YA’s advisers framed the argument on the third issue in public law terms rather than human rights terms, and this proved to be successful.
A human rights based argument was initially attractive, as a refusal of treatment could lead to inhuman and degrading treatment and thus breach Art 3 of the Convention and if a patient could not return home immediately then they could not avoid the breach themselves.
In the housing context, the House of Lords had already established that leaving an asylum seeker street homeless and destitute could amount to a breach of Art 3; so too, by analogy, could a refusal of healthcare. But both the House of Lords and the European Court of Human Rights held, in “N” (N v United Kingdom [2008] 47 EHRR 39), that removing a person with HIV to a country where they could not access treatment would not breach their Art 3 rights.
“N” can, however, be distinguished from the YA scenario, as in that case the individual was seeking leave to remain in the UK in order to access treatment. YA, by contrast, was seeking treatment while he was in the UK. His was a healthcare issue, not an immigration issue.
So the human rights argument may remain available in another case, where treatment has been refused, although it is likely that any such challenge could be more effectively brought on traditional public law grounds such as a failure to lawfully apply the relevant guidance.
The clinician’s conflict
Where does all this leave doctors? Where the duty to the patient stops and the duty to the hospital’s budget takes over is a question with no answer, but what is clear is that the law requires clinicians to have an understanding of immigration issues that lawyers have enough difficulty grasping. The ingredients are not promising, and the result may well be further litigation.
Adam Hundt, Pierce Glynn Solicitors, represented YA
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