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Many people do come for medical treatment in this country, and they pay for it in the private sector where the healthcare is often world-renowned. Overseas visitors can be distinguished in most cases from asylum seekers, I would contend. Where are the figures for health tourism that you hear about? Is it just the anecdotes of taxi drivers, or is there real, hard evidence? This year the Royal College of General Practitioners concluded:

“There is no evidence that asylum seekers enter the country because they wish to benefit from free health care”.

Other doctors have supported this view, and the general opinion is that the psychological and physical health of asylum seekers, especially those who become failed asylum seekers, worsens progressively in the UK asylum system.

At this point, I shall briefly address Amendment 132, which would exempt HIV treatment from charges, irrespective of residency status. This would ensure that everyone in the UK, including failed asylum seekers, would be able to access HIV treatment while in the UK. We offer testing and counselling for HIV, which would, one hopes, reduce the risk of HIV being spread by sexual contact—or would it? Might the fact that no treatment is available unless you pay for it make a failed asylum seeker less likely to have the test in the first place? I think that it would.

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HIV sufferers are not a huge public health hazard in the same way as are the conditions on the exempted list that I mentioned under Amendment 130, but full-blown AIDS is extremely debilitating and might make an individual too sick to be sent home. What is gained then? We discussed the protection of our society from HIV when the Health and Social Care Bill came through this Chamber last year, and vigorously defended the need for some degree of protection for the HIV carrier from discrimination now and in future. This amendment seeks to add the right—and it is a right, I contend, under the convention on refugees—that AIDS sufferers receive treatment so long as they remain in this country. Scotland, Wales and Northern Ireland have chosen not to charge for HIV treatment, so why do we in England? I remind this Committee that it is the only serious communicable disease and the only sexually transmitted infection for which treatment is not provided free of charge, irrespective of residency status.

Finally, in April 2008, Mr Justice Mitting ruled that failed asylum seekers should be classed as ordinarily resident in the UK and be entitled to NHS treatment. This judgment is currently being appealed by the Government through, I think, a judicial review. There is great confusion in the system. Vulnerable people are suffering as a result. This country is also probably in breach of an international convention on the status of refugees. We have no reason to be proud or complacent on this issue. I beg to move the amendment.

6.30 pm

Lord Judd: I strongly endorse the amendment. In doing so, I am well aware that my noble friend is an extremely compassionate person. I am certain that, as an individual, she shares many of the anxieties that have already been expressed by the noble Baroness and that will, no doubt, be expressed by other Members of the Committee. I hope that in the spirit of her characteristic compassion, she will be able to say things in response to this debate that can give us some grounds for encouragement about how the Government seek to meet the situation.

While I was still a member of the Joint Committee on Human Rights, we examined the human rights of those within the immigration system. This issue became one on which there was a great deal of misgiving and indignation right across the party divide in the Select Committee. The noble Baroness moved the amendment extremely well, but all I can say is that in the discussions that we had at great length in that committee, the inconsistencies, the counterproductivity and the unacceptability in terms of any civilised standards, not least our obligations under existing conventions to which we as a nation signed up in good faith, made the policy untenable in the present situation. I remember that one witness, a highly qualified medical person working in the sphere of care for people in this predicament, suddenly became very indignant in the course of giving her evidence and said that as a result of this policy, we are putting people in this country at risk from infection. How can that be right? We talk about our obligations to people with a legitimate right to be in this country, and we are not fulfilling them. It

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is arguable that we are not fulfilling them under international obligations. This is a serious issue. I find it almost inconceivable that as a civilised nation we can behave in this muddled, insensitive way. I agree with the noble Baroness when she spells out the acute suffering that many of these people have been through, even before they reach our shores.

I also strongly endorse her point that we keep hearing about tourism for health reasons but have never seen any hard evidence to substantiate it. It all seems to be impressionistic and anecdotal. This issue is far too serious for policy to be formulated on that basis. I am one of those, and I am sure I will be to my dying day, who believe that it is disgraceful that we all, in all parts of the political life of our country, allow ourselves to be influenced and held to ransom by the tabloid press. So much of the policy in this area is really dictated by the tabloid press, as distinct from what it should be: objective, sound analysis of what the problems really are, what the needs really are and how we as a civilised nation should respond. I am deeply grateful to the noble Baroness for having moved this amendment. I am sure that she will have unlimited good will from the Committee, and I am equally confident that my noble friend shares the anxieties expressed and will try to meet them in her reply.

Baroness Greengross: The Equality and Human Rights Commission, of which I am proud to be a member, has an obligation to protect vulnerable groups of people because all its work is underpinned by the Human Rights Act, which was adopted in this country to comply with the European Convention on Human Rights. This is surely a perfect example of a group of people who need to be protected under the convention and our own legislation. I strongly support the amendment.

The Lord Bishop of Ripon and Leeds: I, too, support the amendment and thank the noble Baroness, Lady Tonge, for her excellent introduction to this short debate. I shall concentrate on the two ethical questions which the noble Baroness, Lady Tonge, raised. The first related to the right of all human beings to have access to healthcare, which is included in a whole collection of international agreements, including the International Covenant on Economic, Social and Cultural Rights, which states that Governments may not limit equal access to healthcare. It seems that all sides of the Committee have a concern for compassion and a concern to establish that right of human access to healthcare. We have therefore come to a point where we need to find a way in which we can establish that.

Much of the best information on destitution of, and healthcare for, asylum seekers and refused asylum seekers in Leeds comes from the Rowntree report, to which the noble Baroness, Lady Warsi, was one of the major contributors. That the need for mental healthcare among those who have come to our country fleeing torture derives originally from that torture but has been added to by destitution and the ways in which they have felt unwelcome within our own society is one of the reasons why it is important that we find a way in which we can provide properly for their healthcare.

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The noble Baroness developed fully the second major ethical issue; namely, that healthcare professionals are given by the present law the duty to consider a person’s immigration status rather than their need for care. That cannot be acceptable in any society, and the BMA has described it as such. I hope that we shall be able to find a way in which people from a wide variety of situations and political convictions can come together in compassion for some of those in most need in our society. Acceptance of this amendment or something like it would be a way in which we could signal our compassion and alleviate the fears not only of asylum seekers but of hundreds of others in our cities who are seeking to help them and who find it impossible to explain to them the justification for our present law.

Baroness Stern: I, too, support the amendment. I have been struck by the wide range of individuals and groups who are dismayed by the Government’s current policy on healthcare access for refused asylum seekers, whether they be children, old people or torture victims. During my time on the Joint Committee on Human Rights—the noble Lord, Lord Judd, has reminded us of that—I was struck by the information we received from people working in the health field as to how the policy was operated, which seemed to all of us to be in many cases inhumane and counterproductive.

Since that was two years ago, I had a look at the more recent evidence session before the Home Affairs Select Committee on this question, which was in November of last year. That was a very informative session, some of which is worth putting on the record today. Professor Nathanson of the BMA described the situation as,

do not access healthcare very often.

“The evidence is that they access services late; that they believe they have no right of access; but very often they are frightened to access; and ... more often of course they do not know how to”.

The committee asked what would happen to a doctor who acts in a clinically disobedient way and provides medication when the patient has not paid. The answer came from Lisa Power at the Terrence Higgins Trust. She said:

“There would certainly be disciplinary activity within the hospital were the hospital to seek that. There are a large number of clinicians who are so”—

Baroness Thornton: I hesitate to interrupt, but that is absolutely not the case. I say that categorically as I have had meetings with the noble Baroness.

Baroness Stern: I am grateful for that intervention. However, I am quoting from evidence given to the Joint Committee on Human Rights, which is on the record. Lisa Power went on to say:

“There are a large number of clinicians who are so concerned that this is not the correct way to behave and so concerned for public health that they are prepared to do whatever it takes”.

She cited the example of a clinician who had managed to chase the Revenue retrieval teams away using a combination of a better understanding of the law and a common-sense approach to the pointlessness of

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retrieving money from the destitute. At the time of my membership of the Joint Committee on Human Rights, we heard a large amount of evidence about the activities of the Revenue retrieval teams. I believe that they exist and that they undertake activities.

I ask the Minister this: is it not rather undesirable for the state to require people who have a very high ethical standard to take actions that require them to go to a lower ethical standard and then put them in the position of having to use stratagems in order to do their moral and professional duty? Is it not strange that professional health workers in Scotland and Wales, as I understand it, do not have to do this because in both jurisdictions that is a step too far? I share the view of the Minister that has been expressed by others and I am very optimistic that she will respond positively to what Members of the Committee are saying.

Baroness Masham of Ilton: I should like to ask a few questions about Amendment 132. As a member of the All-Party Parliamentary Group on AIDS, I should like to ask the Minister: why are people waiting in England for decisions about their status, or if they are waiting to be deported, denied HIV drugs? From a public health interest, why are those vulnerable people denied therapy, which would make them less infective? People with HIV/AIDS in the UK are covered by the Disability Discrimination Act. Are these individuals not classified as people? Is it not odd to treat them for TB and not HIV/AIDS if they are co-infected? Many people will not come forward with HIV because of stigma, and stigma among their own people is worse than other sorts of stigma. The present situation just makes a double stigma.

6.45 pm

Lord Rea: There is a large number of people in this country who are HIV infected but who do not know their HIV status. One estimate I have seen is that there are as many as 20,000 of them and many are in the immigrant population, including asylum seekers. This risks the further spread of infection for obvious reasons. Many of these people are put off seeking tests, because they fear both that it might affect their immigration status and, as the noble Baroness has said, the potential costs of treatment should they be so diagnosed. The amendment will protect public health in this country and should therefore be supported.

The Earl of Sandwich: I will not detain the Committee much longer, because I, too, have heard similar evidence as a member of the Independent Asylum Commission last year: evidence of unfair treatment of destitute asylum seekers urgently requiring healthcare and being turned away. We reported this in our interim findings, and again in our third report, Deserving Dignity. To take HIV/AIDS as an example, we have had submissions from the National AIDS Trust, the Terrence Higgins Trust, the Refugee Council and the George House Trust. They basically said that it was a disgrace that refused asylum seekers are unable to access hospital care when the cost of caring, say, for a destitute mother with HIV/AIDS is so much greater than the initial treatment.

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We have heard examples—I will not repeat them—of excessive charges for, for example, maternity care. Citizens Advice says that a mother can be asked for as much as £2,500, which she will not have. I was interested to learn of a point made by the noble Lord, Lord Judd, that, while we know that asylum seekers suffer from persecution in their country of origin, their health may suffer further because of destitution in this country. In other words, we in the UK have become a source of persecution. Few of them have the means of supporting themselves, let alone their healthcare. We are just forcing them further into the accident and emergency category.

Refugee Action found that 83 per cent of those surveyed said that they had had serious problems since arriving in the UK, despite the relevant fact that four out of five in that survey were between the ages of 21 and 40. Any trauma suffered overseas is compounded by the isolation and deprivation that they experience when they arrive in the UK; and then, in many cases, they are turned away. One wonders why the Government are hesitating in the face of this evidence. Are they still clinging to the deterrent argument? We all remember that there was some logic behind that a few years ago, and some of us believed in it and expected it to work. It does not work; the evidence is otherwise. We have heard from the noble Baroness, Lady Tonge, and the Royal College of General Practitioners that there is no evidence that immigrants enter the country because they wish to benefit from free healthcare. That was endorsed by the British Medical Journal. In 2005, the then Minister was asked what health tourism cost the NHS. He admitted that it was,

I expect that the Minister will confirm that this is still the case and that it is a dead issue.

More important than that, as the noble Baroness, Lady Tonge, has said, it is against medical ethics to deny healthcare to anyone in need. There is plenty of evidence of the urgent need of so-called “failed” asylum seekers. They are not “failed”—they are in many cases waiting to leave the country. Unfortunately, two out of five have problems accessing a general practitioner.

Finally, there is public opinion. Asylum seekers are constantly and unfairly confused with illegal migrants. I am not going to go into that, I just urge the Minister to look at the arguments in the Welsh Assembly to take account of the number of members of the public who are positively in favour of genuine asylum seekers and others who may have slipped through the net but who are still deserving of the highest standards of care, for which our health service has a good reputation.

Baroness Thornton: I will respond to Amendments 130 and 132 together, as they are clearly related.

First, I emphasise that we recognise and respect our duty to ensure that the provision of healthcare is fully compliant with human rights principles. That is why immediately necessary and urgent treatment for any medical need, including HIV and AIDS, must never be denied or delayed, irrespective of a person’s right of abode or ability to pay. Decisions about need are

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always clinical and are made solely by a clinical professional. I think I am going to repeat that: decisions about need are always clinical and are made solely by a clinical professional. The suggestion made by the noble Baroness, Lady Tonge, the right reverend Prelate and others that this is not the case is somewhat unfair.

The regulation to which Amendment 130 refers already ensures that people seeking asylum or refuge have full, free access to healthcare throughout their application, including any appeals. This should already capture most human rights applicants, and we are currently reviewing whether any other genuine applicants are being excluded. I met the noble Baroness and my noble friend Lord Dubs, who is interested in this issue, to discuss that review. It is taking place now, and that is at the heart of what I have to say.

The amendment would extend this so that anyone who had made an application for leave to stay in the UK, either as an asylum seeker or under the human rights convention, would be exempt from charges, even if that application had been decided and, indeed, rejected. In other words, he would continue to receive free treatment indefinitely, even if it was established that he was not in need of the protection or sanctuary of the UK. In deciding whether such a significant extension is appropriate, we must, while still paying due regard to human rights principles, also take account of other factors.

The NHS, which is free at the point of need, is one of the most generous provisions that any country provides. 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.

In terms of retrieving revenue, it is the case that NHS trusts are obliged to charge and then seek repayment. However, if it is then obvious that the people whom they are trying to retrieve from have no funds, they are not required to pursue it.

On Amendment 132, HIV/AIDS is one of the world’s most significant medical and human challenges. Although the number of new diagnoses of HIV in the UK appears to be stabilising, HIV continues to be a major global health concern with 2.5 million new infections in 2007. Once diagnosed, a patient requires lifelong treatment. I have already said that nobody should be denied clinical treatment if it is urgent or immediately necessary, nor should it be delayed, irrespective of their ability to pay.

However, this amendment would make all treatment for HIV/AIDS free, creating a number of risks that we would have to take into consideration. First, what is the capacity of the NHS to provide for a demand for clinical provision that is likely to be significant? What would the additional financial burden be, and is it affordable? Those are legitimate questions.

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The approach that the Government are taking is an international one. We provide support to countries with high HIV prevalence to improve their own facilities and resources to combat HIV. The Department for International Development provided over £1.5 billion between 2005 and 2008 for this purpose, and its AIDS strategy, published last year, included a further funding commitment of over £6 billion over the next seven years to strengthen healthcare systems.

I am not saying that any of those arguments rule out extending free NHS provision, but we do have to consider those factors. Both the amendments raise complex issues, which is why the review of access to the NHS for foreign nationals has been set up. Both amendments fall within the review’s scope; its recommendations will be put to a full formal consultation and agreed changes will be subject to the appropriate parliamentary process.

I should make a procedural point that the regulations to which these amendments refer are secondary, not primary, legislation, so the proposed means of amendment through this Health Bill is not appropriate. However, I am pleased that the amendments have provided the Committee with the opportunity to debate these issues and for those views to be taken into consideration in the review. I hope that with those reassurances about our ongoing work to tackle those issues the noble Baroness will feel able to withdraw the amendment.

Baroness Barker: Before my noble friend sums up the debate, I want to clarify the point about HIV. There is clearly an entirely different understanding on the part of the department and of the HIV charities about the position of staff who are treating people with HIV. The Minister and her officials had a very helpful meeting with me and my noble friend Lady Tonge, during which they explained the point that the Minister made—that clinical decision-making always takes priority over the assessment of whether somebody has proper residence status or the ability to pay. Yet we have this distinction about HIV being a communicable, infectious disease for which people have the right to have a test but not to have treatment. What do clinicians do in that case? They carry out the test, and it becomes immediately apparent that somebody immediately needs antiretroviral therapies, which will not be a cure but will enable him to live. We also know that antiretroviral therapies are comparatively expensive drug therapies in the NHS. If the clinicians work in a trust that has a policy that it will not treat people who are not eligible, what then happens to the individual? It seems that there is a problem here. For most conditions, we can get away with doing it on the quiet and being humane on the quiet, but HIV is the particular problem, and it is different from all the other conditions.

Baroness Thornton: We provide counselling, but we ensure that urgent treatment is always provided and that the decision on urgency is always made by a clinical professional. If the need for treatment is not yet urgent and the person can return home, that is what they should do. Otherwise, we will ask them in advance to protect NHS resources for those entitled to use them without charge. That is the situation. However,

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if they do not return home and their need for treatment becomes urgent they will receive treatment even if they cannot pay for it in advance. By urgent I do not mean emergency or immediately necessary. A person whose need for treatment is urgent should not have it denied until it becomes immediately necessary, regardless of payment.

Lord Judd: I do not question my noble friend’s good faith in telling us about the scope of the review, but can she assure us on the important issue of how far what is understood by Ministers and senior officials to be the policy is happening on the front line? Certainly, when we were taking evidence in the Joint Committee on Human Rights, people whose integrity was beyond question were not encountering on the front line the situation that my noble friend described.

Baroness Thornton: We are taking that into consideration and in our consultations we will be taking recourse on abuses such as those that have already been outlined.

7 pm

Baroness Tonge: I thank the Minister for her reply, and everyone who has contributed to the debate and supported the amendment. I pay tribute to the health team who listened to us patiently—and the noble Lord, Lord Dubs. I listened to them patiently and, uncharacteristically, I did not lose my rag when I had a meeting with them. I just listened carefully to what they said. I have thought and thought about this and feel we cannot simply say that it is the discretion of the medical practitioner to treat or to decide whether or not a situation is an emergency. We know of many examples of people not being treated when they need treatment. Whether it is because doctors do not understand the law or have not read the documents—it is more likely that they have read them but do not understand them—we know of examples of people being sadly neglected, especially, as my noble friend has said, in the case of HIV/AIDS.

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