Charging policy
161. We found a number of administrative difficulties in relation
to the introduction and implementation of current policy, both
in primary and secondary care. The Commission for Racial Equality
(CRE) had concerns about the way in which the Charging Regulations
were formulated, during a period when there was significant press
coverage of alleged "health tourism". [231]
The Terrence Higgins Trust pointed out "research indicated
that … most recent migrants with HIV were unlikely to be
aware of their [HIV] status until they had been in the UK for
more than 9 months". [232]
The CRE wrote to the Department of Health in 2003 and 2005 requesting
that both the policy on secondary care and the proposed changes
to primary care entitlement be subject to race equality impact
assessments, in order to examine their impact on particular ethnic
groups and to put in place measures to ensure that discrimination
would not take place.
162. The Health Minister told us that she had "looked at
issues regarding public health" but had not conducted a race
equality impact assessment before introducing the 2004 Regulations.
[233] Witnesses
have told us about the public health risks of denying treatment
to people with HIV. The Joint Council for the Welfare of Immigrants
(JCWI) told us that a race equality impact assessment was particularly
important given the nationalities of people who are being refused
or charged for treatment, and stated that "there are race
implications which have to be tackled by the Department for Health".
[234]
163. We note that no race equality impact assessment was carried
out before introducing the 2004 charging regulations or with regard
to the current discretionary arrangements for GP registration.
We agree with the JCWI and the CRE that the current arrangements
and proposals for charging refused asylum seekers for healthcare
give rise to a risk of race discrimination.
164. The Minister suggested that providing HIV treatment would
act as a draw for others to come to the UK for free treatment.
[235] NAT stated
that "the change in policy which the Government brought forward
seems to have been based on a hunch that medical tourism is present
to a really excessive degree. When we are talking about people
who have failed in their asylum claim, they are not medical tourists
under any guise at all. They do not come here simply to access
medical care and we would argue that, certainly for this group
of people, the cost implications are not huge." [236]
NAT added that refused asylum seekers with HIV "tend to be
diagnosed a significant time after they have arrived in the country.
If you were coming here cynically to exploit the NHS the sensible
thing would be to start accessing it pretty soon after you arrive."
[237]
165. The House of Commons Health Committee has previously drawn
attention to the lack of any cost-benefit analysis of the overseas
visitor charging regulations:
"The Department's consultation on changes to the charging
rules for overseas visitors suggested that cost saving was a key
reason for reviewing the regulations. We were therefore astonished
that by the Department's own admission these changes have been
introduced without any attempt at cost-benefit analysis, and without
the Department having even a rough idea of the numbers of individuals
that are likely to be affected."[238]
166. The Health Minister told us that that no information had
been collected centrally about the costs and benefits of charging
refused asylum seekers for secondary healthcare. We are concerned
and very surprised that no steps are being taken to monitor the
cost or effect of the 2004 charging regulations in relation to
the provision of secondary healthcare.
167. We heard evidence that there is much confusion about the
rules for both hospital and GP care, which means that asylum seekers
may be discriminated against and refused treatment to which they
are entitled. MDM told us "these rules particularly affect
failed asylum seekers and undocumented migrants, but, because
of the confusion they create around the issue of entitlement,
they also impact on asylum seekers". [239]
168. The Health Minister told us that "GPs cannot refuse
anybody unless there are … reasonable grounds for doing so".
[240] Evidence
from our witnesses shows that practice is clearly different from
policy. She accepted that the guidance to GPs was confusing, and
told us that she thought "the awareness of the muddle has
been around since 2004". [241]
The view of Medact is that the 2004 regulations are "leading
to a huge amount of confusion and there are many examples where
people who still have an active asylum case and therefore are
entitled to treatment are being denied care. In the second part
it is taking an increasing amount of health workers' time in advocacy
to ensure that people who are vulnerable can receive care."
[242]
169. It appears to us the confusion arises in part because under
current arrangements medical staff are expected to carry out immigration
checks. The Minister told us that "it is almost impossible
to know whether somebody is seeking asylum or has failed their
asylum appeal" and yet the current regulations require GP
and hospital reception staff to make such an assessment before
providing care. [243]
170. Under the ECHR, discrimination in the enjoyment of Convention
rights on grounds of nationality requires particularly weighty
justification. The restrictions on access to free healthcare for
refused asylum seekers who are unable to leave the UK are examples
of nationality discrimination which require justification. No
evidence has been provided to us to justify the charging policy,
whether on the grounds of costs saving or of encouraging refused
asylum seekers to leave the UK. We recommend that free primary
and secondary healthcare be provided for all those who have made
a claim for asylum or under the ECHR whilst they are in the UK,
in order to comply with the laws of common humanity and the UK's
international human rights obligations, and to protect the health
of the nation. Whilst charges are still in place, we consider
that it is inappropriate for health providers to be responsible
both for (i) deciding who is or is not entitled to free care and
(ii) recovering costs from patients. We recommend that a separate
central agency be established to collect payments.
171. The timetable for reviewing the regulations on charging
for healthcare is unsatisfactory and has exacerbated the confusion
around entitlement. The consultation on primary care was closed
in 2004 but no analysis has been published. We recommend that
the Government collect evidence of the impact of the 2004 Charging
Regulations on patients, NHS costs and NHS staff, and that it
carry out a race equality impact assessment and a public health
impact assessment of these Regulations using data obtained to
inform future policy decisions.
167 
