Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Health Bill - Human Rights Joint Committee Contents

3  Health Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

15 January 2009

HL Bill 31


3.1 We recently reported on those aspects of the Health Bill which, in our view, raised human rights concerns.[139] We now consider the issue of healthcare for a particularly vulnerable group: refused asylum seekers. This is a significant issue which was brought to our attention by a number of witnesses to our inquiry and has recently been the subject of legal challenge in the Court of Appeal,[140] but which we were not able to deal with in our first Report on this Bill.

Healthcare for refused asylum seekers

3.2 The National Health Service Act 2006 requires the Government to provide a comprehensive health service so as to secure an improvement in the prevention, diagnosis and treatment of illness. There is a presumption that such services will be free but there is a power to make charges to those who are not ordinarily resident in the UK. In 1989, Regulations were introduced requiring NHS Trusts to charge "overseas visitors" for secondary care (hospital treatment) subject to various exemptions.[141] Asylum seekers and refused asylum seekers who had been in the UK for 12 months were unaffected at that time. However, in 2004, the Regulations were amended so that many more overseas visitors, including refused asylum seekers, became liable for hospital charges. The Department of Health produces non-statutory guidance to NHS Trusts on how to implement the charging Regulations.

3.3 Reporting on the Treatment of Asylum Seekers in 2007, we concluded that the charging Regulations had:

    … caused confusion about entitlement, that interpretation of them appears to be inconsistent and that in some cases people who are entitled to free treatment have been charged in error. The threat of incurring high charges has resulted in some people with life-threatening illnesses or disturbing mental health conditions being denied, or failing to seek, treatment.[142]

3.4 We also considered the difficulties that refused asylum seekers faced in accessing primary care (treatment by a General Practitioner).[143] We noted the Department of Health's public consultation on proposals to change the rules of entitlement of overseas visitors to NHS primary care services which concluded in August 2004.[144] At the time of our inquiry, Ministers were "still considering the results of the public consultation and the issues which that raised before announcing the way forward".[145] We concluded:

    We have seen evidence that the current arrangements for access to GPs result in the denial of necessary primary healthcare for many refused asylum seekers and their children. We believe that in many cases this is in breach of the ECHR rights to be free from inhuman or degrading treatment, to respect for private life and to enjoy Convention rights without unjustified discrimination, and also in some cases to the right to life. Moreover, consequent increased reliance on A&E services as a substitute is more expensive, increases A&E pressures and flies in the face of the general NHS policy of moving care away from A&E and hospitals and into primary care, closer to the patient. We recommend that primary healthcare be provided free to those who have claimed asylum, including those whose claim has been refused, pending their voluntary return or removal.[146]

3.5 We also noted, with concern, that the Department of Health did not collate information centrally on the costs and benefits of charging refused asylum seekers for secondary healthcare.[147] We concluded:

    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.

    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.[148]

3.6 In its response to our Report, the Government referred on a number of occasions to an ongoing review of policy about access to healthcare for asylum seekers.[149] A review was announced on 7 March 2007 in Enforcing the Rules: A new strategy to ensure and enforce compliance with our immigration law. In July 2008, Ministers at the Department of Health and Home Office told us that "the review is due to be completed shortly and will be followed by a full public consultation."[150] However, neither the outcome of the review, nor the public consultation have yet been published.

3.7 During the debates in Grand Committee on the Health Bill, Baroness Tonge proposed a probing amendment to enable refused asylum seekers to access free healthcare.[151] Responding, the Minister, Baroness Thornton, noted that "we recognise and respect our duty to ensure that the provision of healthcare is fully compliant with human rights principles" but stated that, in deciding whether refused asylum seekers should be entitled to free healthcare:

    We must, whilst still paying due regard to human rights principles, also take account of other factors …

    We legitimately need to ask whether we can provide all healthcare free of charge to people who are not legitimate residents in the UK. Also, might such an amendment not encourage applications under the human rights Convention, particularly for chronic conditions? I am dubious about that, and I share the questions of the noble Baroness about that. I am not saying that any of these arguments should justify the denial of human rights in the provision of healthcare. However, decisions on the extent of free NHS provision must consider all these factors, such as public health, clinical costs and cost implications.[152]

3.8 The Minister also referred to the review of access to the NHS for foreign nationals, the recommendations of which would be put to formal consultation and any changes subject to the appropriate parliamentary process.[153]

3.9 Baroness Tonge indicated that she intended to bring back her amendments on Report.[154]

3.10 We have received evidence since we concluded our inquiry into the treatment of asylum seekers which suggests that the charging Regulations remain a problem and that access to healthcare for refused asylum seekers has not improved. During our mini-conference last summer, which followed up on our Report one year on, we again heard that NHS employees were confused about the Guidance, that there was inconsistent practice and that the policy was unduly burdensome on staff.

3.11 Contributing to our scrutiny of this Bill, three witnesses provided submissions to us focusing on the issue of access to healthcare for refused asylum seekers.[155] For example, Still Human Still Here, a coalition of 29 organisations, stated that the policy was discriminatory and burdensome for healthcare professions to administer and enforce. They suggested that the policy was in breach of the UK's human rights obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR)[156] and concluded:

    Treatment that prevents or cures illnesses is obviously more efficient and effective than waiting for a condition to deteriorate until it requires emergency care. Restoring refused asylum seekers' access to secondary healthcare will save lives and ensure efficient use of NHS resources. It is consistent with the ethos of the NHS Constitution and the UK's international human rights commitments as well as other policy objectives in relation to health, social exclusion, combating HIV/AIDS and the every child matters agenda.[157]

3.12 In its recent General Comment on the right to social security, the UN Committee on Economic, Social and Cultural Rights stated that "refugees, stateless persons and asylum-seekers and other disadvantaged and marginalised individuals and groups, should enjoy equal treatment in access to non-contributory social security schemes, including reasonable access to health care and family support, consistent with international standards."[158]

3.13 On 30 March 2009, the Court of Appeal gave judgment in a case concerning a refused asylum seeker who could not be returned who challenged the legality of the Department of Health's Guidance.[159] The Court held that refused asylum seekers were not entitled to free NHS treatment as they were only in the UK until they could be returned. However, it also considered the discretion of NHS Trusts to treat refused asylum seekers without charge and unanimously held that the Department of Health's Guidance was unclear. Considering the Guidance on "urgent treatment" in particular, the Court of Appeal held:

    … the Guidance is not clear and unambiguous and in so far as it purports to be dealing with … the failed asylum seekers who cannot be returned, it is seriously misleading.[160]

3.14 Following this judgment, the Department of Health wrote to health and social care professionals on 2 April 2009 as follows:

    Providers are required to charge [chargeable overseas visitors] directly and subsequently recover funds from them where possible. The CA ruling that failed asylum seekers cannot be either ordinarily resident or lawfully resident means their treatment is not now funded by PCTs, which re-establishes the position prior to the High Court judgment of April 2008.[161]

The Department noted the Court's decision that the Guidance was unclear and unlawful. Pending redrafted Guidance in the autumn, it suggested that Trusts should take into account the likelihood of and timescale for a person returning to his or her country of origin, when considering whether to provide treatment.

3.15 We remain as concerned as we were more than two years ago when we concluded our inquiry into the Treatment of Asylum Seekers that a highly vulnerable group of people in the UK (refused asylum seekers, including children) continue to be denied access to fundamental healthcare which is available to the general population. This is a particularly acute problem for refused asylum seekers who cannot be returned. It is inconceivable that the majority of refused asylum seekers would be able to pay to receive such treatment themselves and therefore, in the absence of a Trust exercising its discretion in the refused asylum seeker's favour, he or she will be refused treatment. This not only risks exacerbating an asylum seeker's health problems to a point where treatment becomes urgent and critical, but also risks breaching his or her rights under the ECHR and the ICESCR. We repeat our recommendation 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. In particular, we note the very difficult position of refused asylum seekers who cannot be returned and recommend that the Government issue guidance to set out clearly their entitlement to free healthcare whilst they remain in the UK.

Insert the following new Clause—

Guidance on charges for certain asylum seekers

(1) After section 175 of the National Health Service Act 2006 (c. 41) insert—.

175A  Guidance on charges for certain asylum seekers

(1) It shall be the duty of the Secretary of State to lay before both Houses of Parliament guidance on charges for failed asylum seekers who cannot be returned to their home country.

(2) Guidance laid under subsection (1) shall be brought into force by statutory instrument.

(3) The Secretary of State may not make a statutory instrument containing (whether alone or with other provision) guidance laid under this section unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) "Failed asylum seeker" has the same meaning as under section 49 of the Nationality, Immigration and Asylum Act 2002 (c. 41)."

3.16 We are disappointed that the Department of Health does not propose to reissue Guidance in the light of the recent Court of Appeal judgment until the autumn. We are unclear as to why the Government considers such a delay to be necessary or desirable. The Court of Appeal held that the lack of clarity in the Guidance was misleading and unlawful. In our view, revised Guidance, consistent with the judgment, must be issued rapidly, in order to ensure clarity for service providers and recipients alike. Furthermore, we ask the Government to explain what steps it proposes to take, in addition to the Department of Health's letter of 2 April 2009, to ensure that the effects of the Court of Appeal's judgment are correctly disseminated to and implemented by front line workers. In addition, we are alarmed that the Government has still not published the outcome of its review of access to the NHS for foreign nationals, nor its promised public consultation. We recommend that it does so as a matter of urgency.

139   Eleventh Report of Session 2008-09, Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill, HL Paper 69, HC 396. Back

140   R (YA) v Secretary of State for Health [2009] EWCA Civ 225. Back

141   National Health Service (Charges to Overseas Visitors) Regulations 1989. Back

142   Tenth Report of Session 2006-07, The Treatment of Asylum Seekers, HL Paper 81-I, HC 60-I, para. 134. Back

143   Ibid, paras 153-159. Back

144   Department of Health, Proposals to Exclude Overseas Vistitors from Eligibility to Free NHS Primary Medical Schemes, 14 May 2004. Back

145   Department of Health evidence quoted at; ibid, para. 154. In January 2009, 274 of 276 received responses to the consultation were made public by the Department of Health. Back

146   Ibid, para. 158. Back

147   Ibid, para. 166. Back

148   Ibid, paras. 170 & 171. Back

149   Seventeenth Report of Session 2006-07, Government Response to the Committee's Tenth Report; The Treatment of Asylum Seekers, HL Paper 134, HC 790. Back

150   See below, page 127 Back

151   17 March 2009, HL, GC 79. Back

152   17 March 2009, HL, GC 86. Back

153   17 March 2009, HL, GC 87. Back

154   17 March 2009, HL, GC 89. Back

155   Eleventh Report of Session 2008-09, Legislative Scrutiny; Health Bill; Marine and Coastal Access Bill, HL Paper 69, HC 396, Ev 15-20 and 22-24 Back

156   Specifically Articles 2 (non-discrimination) and 12 (the right of everyone to the enjoyment of the highest attainable standard of physical and mental health). Back

157   Eleventh Report of Session 2008-09, Legislative Scrutiny; Health Bill; Marine and Coastal Access Bill, HL Paper 69, HC 396, Ev 24, para. 27. Back

158   Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, E/C.12//GC/19, 4 February 2008, para 38. Back

159   R (YA) v Secretary of State for Health [2009] EWCA Civ 225. Back

160   Ibid. para. 75. Back

161   David Flory, Director General NHS Finance, Performance and Operation to Chief Executives (Error! Bookmark not defined.) Back

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