Joint Committee On Human Rights Tenth Report

4  Provision of healthcare

H is a Rwandan and when he came to the Refugee Council was living on the street and destitute. He has bowel cancer and a colostomy bag from a previous operation. Not only has the [hospital] Trust refused to provide care without advance payment, his local GP was refusing to register him. Refugee Council

123. The legislation concerning provision of healthcare for asylum seekers and refused asylum seekers in England is a matter for the Department of Health. Health matters are devolved in Scotland, Wales and Northern Ireland but the rules are similar to those in England.

Secondary (hospital) treatment


124. Section 1 of the National Health Service Act (1977) 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 (section 121 of the 1977 Act). In 1989, the then Government introduced regulations requiring NHS Trusts to charge "overseas visitors" for secondary care (hospital treatment), subject to various exemptions. [167] Asylum seekers and refused asylum seekers who had been in the UK for 12 months were unaffected at that time.

125. However, in April 2004, the regulations were amended so that many more overseas visitors, including refused asylum seekers, became liable for hospital charges.[168] The current system is that a person who has formally applied for asylum is entitled to NHS routine hospital treatment without charge for as long as his application (including any appeal) is under consideration, but refused asylum seekers lose their entitlement to free routine NHS treatment. This is the case even for refused asylum seekers who are in receipt of section 4 support because they are unable to leave the UK; and for individuals who have made a claim to stay in the UK to avoid a breach of their rights under Article 3 or 8 ECHR, which the Home Office has not yet considered. NHS Trusts must identify those who are chargeable under the regulations, levy the charge and take reasonable steps to recover it from the patient.

126. There are no charges for certain types of treatment, including treatment in an Accident and Emergency Department (or walk-in centre providing emergency treatment), treatment for sexually transmitted diseases and treatment for certain infectious diseases (including tuberculosis but not HIV/AIDS, except for the initial diagnosis). Where treatment is immediately necessary, the patient is entitled to treatment even if he is not able to pay in advance. There is no charge where the patient has already started the course of treatment before being refused asylum.

127. The Department of Health told us that "comprehensive guidance on how to implement the Charging Regulations was revised and issued to the NHS… This has had the effect of raising the profile of the charging regime so that more NHS hospitals are carrying out their duties in this area more rigorously". [169] It added that it had been "reviewing the position in relation to NHS hospital care of failed asylum seekers who are nevertheless eligible for some form of state support because of their particular circumstances. This includes, but is not exclusive to section 4 of the 1999 Act." [170]

128. However, the Minister was unable to tell us how many asylum seekers had been charged, how many had actually paid, how much had been recovered in cash terms, or how many hospitals had effective cost recovery systems.[171] If there is to be a charging regime, then it should be monitored for its effectiveness. We doubt that the amounts recovered justify the bureaucracy involved in running a charging system efficaciously. Witnesses, including the Health Minister, confirmed that no research had been carried out on the existence or extent of "health tourism" before the Charging Regulations were introduced.[172]

129. We note that the Government has not produced any evidence to demonstrate the extent of what it describes as "health tourism" in the UK.


130. We heard evidence that patients with serious and life-threatening conditions, pregnant women and people with HIV/AIDS had been refused hospital treatment. In other cases hospitals had wrongly tried to charge asylum seekers who were entitled to free treatment or, equally wrongly, had insisted on an advance payment from refused asylum seekers dependent on section 4 vouchers and with no means to pay for treatment.

131. Medecins du Monde UK (MDM) has collected evidence about the impact of the regulations from its advocacy and healthcare project in East London (Project: London) which was launched in January 2006.[173] It told us that it had come across several cases where refused asylum seekers had been denied treatment because they could not pay the charges:

    "Mr S was diagnosed with bowel cancer after investigation at his local hospital last year. While pursuing further investigation, the hospital established he had been refused asylum, stopped the course of investigation and asked him to pay for all the care he had received to that point plus a deposit of £6,000 before he could start any treatment for his condition. Without resources, except occasional money sent by his family, the man has been unable to access the vital treatment he needs while his condition may be deteriorating. Nearly 10 months have passed since cancer was diagnosed and he still has not received any treatment for his condition."[174]

132. In June 2006, the Refugee Council published a report setting out the health problems experienced by asylum seekers and refugees and the impact of the charging regulations:

    "In addition to experiencing similar health problems as the rest of the UK population, refugees and asylum seekers also suffer from a range of physical and mental health problems as a consequence of experiences in their country of origin, sometimes made worse by poor access to healthcare and the dangerous and stressful journey to the UK… As many as 20 per cent of asylum seekers and refugees have severe physical health problems that make their day to day life difficult … Between five and 30 per cent of asylum seekers have been tortured." [175]

133. The decision as to whether treatment is "immediately necessary" is a clinical one; doctors are asked to decide whether or not treatment should be provided. The Health Minister, Rt Hon Rosie Winterton MP, told us that the Department of Health was very clear that "it is a clinical decision as to what treatment is necessary to save lives. We do not set out in the regulations what types of treatment should be available. If there is a clinical decision that a particular course of treatment has to be undertaken to save a life then it can be given."[176] Doctors for Human Rights pointed out the difficulties for doctors in being required to make such judgements and in implementing what it describes as "inhumane" regulations, stating "Where do these regulations leave doctors? Conforming with legislation that denies access to health care goes against the instincts of many doctors, affronts common decency, and infringes international and domestic ethical codes. But it is in its violation of international law that the regulations offend us most." [177]

134. We have heard that the 2004 Charging Regulations have 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. We have heard of many extremely shocking examples.


E, a young woman from China was turned away several times by her local NHS Trust who told her that unless she could pay them several thousand pounds upfront, they would not support her through the birth of her baby. She gave birth at home with no medical care and then both she and her baby had to be admitted to hospital with serious health problems related to the traumatic birth. Once discharged, the hospital continued to send E bills, which frightened her so much she fled her home. The whereabouts of her and her child are not known. Doctors for Human Rights

135. In its 2006 report, the Refugee Council referred to evidence that maternal deaths are significantly higher among refugees and asylum seekers than the population at large: "Contributory factors include previous lack of access to antenatal care, poor nutrition and highly traumatic instances of pregnancy caused by rape."[178] Medact (a UK health based charity) cited evidence about the serious risks to maternal and infant health where a woman does not receive antenatal care:

    "The importance of pregnant women making early contact with the maternity services, and maintaining regular contact thereafter, has been recognised by both the Department of Health in its National Service Framework for Children, Young People and Maternity Services, and the National Institute of Clinical Excellence in its Guideline on Routine Antenatal Care. … Late booking or poor attendance for maternity care were identified as key risk factors in the latest report on maternal deaths, affecting 20% of women who died. Newly arrived asylum seekers and refugees were found to be seven times more likely to die than white women and more than half of the migrant women who died had major problems accessing maternity care." [179]


136. The Department of Health guidance states that maternity care is "immediately necessary treatment" and so should be provided to refused asylum seekers without having to be paid for in advance:

The Minister told us that the Department of Health had provided two reminder notices to hospital Overseas Visitors Managers to remind them that hospital maternity services should always be considered immediately necessary treatment because of the potential risks to mother and baby, but that charges should still be applied afterwards. The notice dated January 2006 stated:

    "..the DoH continues to receive regular reports that this guidance is not always being followed. We have been told of cases where women who are exempt from charges (eg because they are asylum seekers) have been asked to pay; where women have been refused proper care because they cannot pay in advance; and where payment has been pursued in such a way that women feel intimidated and unable to continue to receive necessary maternity care, placing themselves and their baby at increased risk".

137. A number of witnesses gave evidence that even 12 months after the Department of Health reminder notice, these problems persisted. The Refugee Council found that 17 of the 37 cases it examined in its research concerned maternity care.[181] It told us that in eight of these cases, payment was demanded of the woman in advance and treatment was refused if payment conditions were not met. The Refugee Council stated that despite the guidance, the practice of requiring payment in advance of maternity treatment had continued:

    "For example, C came to us in June 2006, unaware of her immigration status, seven months pregnant, destitute and homeless. She had been charged £2500 upfront for the costs of her maternity care. Through our advocacy, we were able to ensure that she was provided with accommodation and support under section 4, and to force the NHS to provide her with maternity care in line with the regulations."[182]

138. MDM told us that they "and other organisations have come across women who are being asked to pay 100 per cent deposit for an antenatal package before they can have any care at all." [183] MDM expressed its concern about the difficulties encountered by pregnant women trying to access antenatal care, stating that its evidence "demonstrates that the reality of how the rules are being applied to antenatal care is very different to the guidance issued by the Department of Health", and giving examples of cases it had encountered, for example:

    "Mrs P is 25 and comes from Lebanon. She was refused asylum status and was living in temporary accommodation with her husband. She was asked to pay a bill of £2,300 (a set price maternity package for the antenatal care she had already received) and told that interest would be added if she didn't pay within 5 days … As neither she nor her husband have the money they could not pay the bill. The Overseas Payment Officer called their GP practice in front of them to inform the GP that Mrs P shouldn't receive care at his GP practice. This was a clear breach of confidentiality… Since then the Overseas Payment Officer keeps calling Mr and Mrs P and asking them to pay the bill before the birth."[184]

139. There are particular concerns about the implications of this practice in the context of HIV/AIDS. Early intervention can reduce the risk of transmission of HIV from mother to baby from one in three or four to one in a hundred[185]. The National Aids Trust (NAT) stated that "we have a number of cases where people with a live and legitimate asylum claim have been charged. We have a number of cases of pregnant women with HIV being told that they have to pay up front, which is contrary to the directive from the Department of Health on immediately necessary treatment in those cases."[186]


140. In the experience of MDM,[187] many pregnant women are very frightened following their discussions with hospital Overseas Payment Officers to the extent that some are deterred from seeking any further care. Many are unaware that they could access emergency care in an A&E Department free of charge. MDM states that it has "seen letters sent by hospitals which failed to inform the women about their rights under the current regulations. In each case, the letters explained that the women will be charged and needs to pay the maternity package in advance in order to access any care without informing the woman that she would not be denied care if she could not pay in advance".[188] MDM suggested that the "inconsistent and aggressive application of charging to pregnant women, in direct contravention of government policy, presents a serious threat to the lives of these women and their babies."[189]

141. Medact highlighted the deterrent effect of charging for care: "Trusts are required to issue invoices in all cases… Many women are intimidated by the prospect of incurring a debt of several thousand pounds when they know it will be impossible to repay it. They therefore choose not to receive care they cannot afford, and "disappear" from the maternity services."[190] It added that "Compliance with the regulations and guidance varies across health services and between individual staff, and breaches of the regulations and guidance are regularly reported by advocates", and further stated:[191]

    "Some failed asylum seeker women and their advocates have experienced harassment from Overseas Visitor Managers and hospital finance departments when they are unable to pay for care. This consists of rude, and in some cases, abusive treatment in meetings with Overseas Visitor Managers; repeated phone calls, often very aggressive in character; and threats to bring in debt collectors prior to the birth. In some cases, the Overseas Visitor Manager has rung the woman's GP during the meeting and advised the GP that the woman is not entitled to free care. For some women this has resulted in loss of access to primary health care services."[192]

142. The Health Minister told us that she could "understand that people might think there is a bit of confusion" about entitlement to maternity care. [193] It is clear to us that there is considerable confusion. Pregnant women are denied, or fail to access, essential care as a result. The evidence shows that issuing additional guidance has not removed the confusion.

143. The arrangements for levying charges on pregnant and nursing mothers lead in many cases to the denial of antenatal care to vulnerable women. This is inconsistent with the principles of common humanity and with the UK's obligations under ECHR Articles 2, 3 and 8 ECHR. We recommend that the Government suspend all charges for antenatal, maternity and peri-natal care. We recommend that all maternity care should be free to those who have claimed asylum, including those whose claim has failed, until voluntary departure or removal from the UK.


144. Another specific area of concern mentioned by several witnesses was access to treatment for HIV/AIDS. Under the 2004 Regulations, the HIV test and related counselling is provided free, but HIV treatment is chargeable for refused asylum seekers. Treatment for other sexually transmitted diseases and for specified infectious illnesses is free. The Terrence Higgins Trust described cases where patients have been refused HIV treatment despite having TB (which is exempt from charging) and being too ill to travel home.[194] Such patients may then be admitted as a more expensive emergency, charged for treatment inappropriately and subsequently stop receiving treatment because they cannot pay the bills. The National AIDS Trust told us that "HIV diagnosis often occurs many months after arrival and linked to opportunistic infection".[195] The African HIV Policy Network said that Africans living in the UK tended to present later for HIV/AIDS testing and that the charging regulations deterred people from taking up testing services, with evident repercussions for the spread of the disease and consequent long term social and economic costs.[196] It added that "there is no cure for AIDS, but provided HIV is diagnosed early enough, new treatments can prolong life for many."[197]

145. NAT stated that "there appear to be many instances where there is confusion as to whether or not someone can access free NHS care. This might be because there is a misunderstanding of the charging rules within the hospital, or on other occasions it is because someone's eligibility is not easy to ascertain. There are also many cases of people receiving bills for thousands of pounds which they are totally unable to pay, being unable to work and without means of support…No attempt is made to discuss the possibility of debt write-off. Instead people receive the bill followed by a threatening letter from a debt-recovery agency." NAT provided case study examples:

    "Client collapsed with a fit and was taken in via A&E. He was subsequently diagnosed with HIV and treated for a number of conditions including TB. He was billed for approximately £5,000. He was discharged and vanished without ongoing treatment. The outcome of his TB treatment is not known." [198]

146. NAT said that HIV requires highly complex and specialist treatment. [199] Medact agreed:

    "As well as being technically impossible to treat complex illnesses outside a properly structured health service, the care needs to be co-ordinated, and if we are thinking about infection and infectious diseases people need to be completing the course of treatment otherwise that leads to resistance of the infections." [200]


147. The Terrence Higgins Trust[201] and the African HIV Policy Network[202] explained that the effect of charging was that people got more ill until they were treatable as an emergency and had a far higher viral load than if they had received earlier treatment. NAT's view is that "there is no evidence base for the introduction of these charges, and no cost benefit to the NHS (indeed possibly a cost disbenefit)." [203] It told us that::

    "It comes back to the cost/benefit argument, that we are charging people for very cost effective preventive interventions. Anti-retroviral therapy is one of the most cost effective medical interventions there is. If we deny them that cost effective intervention they will simply present in A&E and then in intensive care with greater and greater frequency and in a matter of a couple of days cost the NHS as much as a year's anti-retroviral treatment." [204]


148. Department of Health policies also have clear implications for public health. Witnesses told us that the policies were inconsistent with advice provided by DfID. Medact pointed out that "DfID is very actively campaigning for universal global access to anti-retroviral treatment and yet here in the UK a section who are extremely vulnerable are being denied treatment." [205] NAT agreed, adding that "the World Health Organisation in Europe who have responsibility for monitoring universal access to treatment … have made it quite clear that according to the WHO rules the UK has not complied with universal access to HIV treatment." [206] In NAT's view it was "both possible and likely" that third parties were being infected with infectious diseases as a result of the Department of Health's policy on restricting access to free secondary healthcare for people with HIV. [207]

149. Government policy recognises the importance of HIV diagnosis and treatment. The Prime Minister launched "Taking Action- the UK's strategy for tackling HIV and AIDS in the Developing World" for the Department for International Development. The UK supports the millennium development goal of halting the spread of HIV and AIDS, malaria and other major diseases by 2015 and is one of the key backers of a new Global Fund to Fight HIV and AIDS, Tuberculosis and Malaria that was set up in 2002. The UK has pledged to provide £1.5 billion for HIV and AIDS work between 2005 and 2008. One of the targets is to slow the progress of HIV and AIDS by 2015. The UK Government has undertaken to ensure that all relevant departments implement this strategy.

150. When we asked the Minister why HIV was not included in the list of infectious diseases for which treatment is free, she explained that other infections were airborne and with HIV, the patient could take precautions.[208] However, the evidence presented to us indicated that the Charging Regulations have a deterrent effect; people with HIV may not present for diagnosis, and so be unaware of their HIV status. [209] Charges for antenatal care can also mean that pregnant women do not become aware of their HIV status.

151. We have already noted the case of N,[210] which has implications for people who are receiving health treatment in the UK which is not freely available in their home country. N has petitioned the European Court of Human Rights. We also note the case of D[211] in which the European Court of Human Rights held that in the "very exceptional circumstances" of that case, it would be a breach of Article 3 ECHR to return D, an individual in the terminal stages of AIDS with no prospect of medical care or family support, to St Kitts.

152. We accept that there is no universal worldwide access to free medical treatment, but recommend that on the basis of common humanity, and in support of its wider international goal of halting the spread of HIV/AIDS, the Government should provide free HIV/AIDS treatment for refused asylum seekers for as long as they remain in the UK. Absence of treatment for serious infectious diseases raises wider public health risks. The Government should not deport a person in circumstances where that person is in the final stages of a terminal illness and would not have access to medical care to prevent acute suffering while he is dying.

Primary care (GP treatment)

Mr. D, a 38 year old man from China, refugee status denied, had been diagnosed with leukaemia and in urgent need of ongoing medication. However a GP surgery in his area willing to accept him without proof of address and identity has not been found yet. Medecins du Monde

153. Asylum seekers may apply for registration with a GP. The Department of Health guidance states that the GP must consider such an application on its merits and should decline it only if the GP's patient list is formally closed to new registrations or if the practice has some other good non-discriminatory reasons for refusing that individual. There is currently no legislation requiring GPs to charge refused asylum seekers, but Department of Health guidance for England and Wales discourages GPs from registering refused asylum seekers as patients. [212] Practices do retain the discretion to register refused asylum seekers, or to continue an existing registration.

154. The Department of Health has undertaken a public consultation of proposals to change the rules of entitlement of overseas visitors to NHS primary care services, and told us that "at present, Ministers are still considering the results of the public consultation and the issues which that raised before announcing the way forward."[213] The Health Minister told us that the consultation was necessary because "the rules about entitlement to primary care are best described as a muddle."[214] The consultation concluded on 13 August 2004 but to date its conclusions have not been published. The Department of Health provided us with a summary analysis of consultation responses which showed strong support for clearer rules on eligibility, clearer definition of what constitutes immediately necessary treatment and support for disease specific exemptions from charging. [215]


155. MDM told us that "most of the service users who come to see us at Project: London experience difficulties in registering with a GP… The main reason … is the burden of documentation required to prove address and/or identity…Registering with a GP is also harder for those who are rough sleepers or are in very temporary accommodation, as most of the time they do not have an address to use in order to find a GP… We also noticed that some GP practices are also unwilling to register asylum seekers and/or homeless as they require more time than normal." [216] MDM told us that they had received cases "where the excuses have changed" and GP practices have provided several different reasons for refusing to register an individual. [217] MDM provided examples of individuals who had encountered difficulties in trying to access primary care:

    "Mr L is from Niger, is 38 years old and is an asylum seeker. He is currently living in temporary accommodation, doesn't know how long he can stay there. He came to see us to help him with a GP as he has no idea what care he is entitled to receive or how to access health services. We phoned five GP practices in his area and all of them refused his Home Office document as a proof of ID or address. Finally the sixth GP practice we called accepted to register him with his Home Office document."

156. Medact stated that "often we will register someone who has been rejected by several other practices. The clarity of the guidance … leaves something to be desired. The actual wording from the Department of Health appears to be directly contradictory." [218] Other witnesses such as the British Red Cross confirmed that asylum seekers had difficulties in registering with GPs and that eligibility mistakes were made by receptionists. [219] It believes that the proposed restrictions on primary care may exacerbate these problems, even for asylum seekers who are entitled to treatment, and explained that:

    "We have already experienced difficulties with GP surgeries withholding services and there have been cases where staff have said that asylum seekers are not entitled to GP care. Reception staff in GP surgeries have no way of knowing what stage of the process asylum seekers are at and have refused care on this basis."[220]

The Refugee Council agreed, saying that "In our experience, once asylum seekers are aware of their health rights they can find it difficult if not impossible to find a GP practice that will register them as patients."[221]

157. Restricting access to GP care will inevitably add to the burden of A&E departments. NAT stated that "the more you create barriers for people to access a GP the more they are simply going to present, if they feel ill or concerned about their health, at the one place where they know they can get free healthcare, so all the achievements and successes there have recently been in terms of reducing Accident and Emergency times are going to be undermined by that being … the place of last resort to which people go, often with conditions and issues that really are not appropriate for Accident and Emergency settings."[222] The Minister agreed that "there is evidence that people who are not registered (with a GP) do tend to go to A&E more." [223] Research in the use of Accident and Emergency Services by international migrants concluded:

    "Recently arrived migrants are a diverse and substantial group, of whom migrants from refugee-generating countries and asylum seekers comprise only a minority group. Service reorganisation to ensure improved access to community-based GPs and delivery of more appropriate care may lessen their impact on acute services."[224]

158. 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.[225] 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. We recommend that the guidance to GPs on registering new patients be clarified to remove the existing contradictions.

159. We note the BMA research on the vulnerability and ill-health of refugee children.[226] We recommend that the Department of Health establish guidelines on health services for unaccompanied asylum seeking children and for children in families of asylum seekers, including refused asylum seekers, so as to comply with its obligations under the CRC.


160. The Refugee Council considered that the shortfall in interpreting services presents a significant barrier to asylum seekers in need of health care.[227] The British Psychological Society agreed, stating that "Good interpreting services are necessary to ensure that people who do not speak English are not disadvantaged or unable to receive appropriate care or treatment. Research shows that such services are not always available."[228] The Government stated that the Home Office gives careful consideration to health needs when determining where to place those asylum seekers who are supported by IND, and that as part of the dispersal process, asylum seekers will be briefed by a Home Office accommodation provider in a language they understand about details of local GP surgeries, how to get there and how to register. [229] Witnesses have told us that, in practice, interpreting facilities are not always available. [230]

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   NHS Charges to Overseas Regulations 1989. Back

168   The NHS (Charges to Overseas Visitors) Regulations 1989, as amended ("the 2004 charging regulations"). See Department of Health guidance Implementing the Overseas Hospital Charging Regulations: Guidance for NHS Trust Hospitals in EnglandBack

169   Appendix 69. Back

170   ibidBack

171   Q 394. Back

172   Appendix 10, Appendix 18. Back

173   Appendix 46. Back

174   ibidBack

175   First do no harm: denying healthcare to people whose asylum claims have failed, Kelley and Stevenson, Oxfam and Refugee Council, June 2006. Back

176   Q 394. Back

177   Appendix 23. Back

178   ibidBack

179   Appendix 21. Back

180   Appendix 89. Back

181   First do no harm: denying healthcare to people whose asylum claims have failed, Kelley and Stevenson, Oxfam and Refugee Council, June 2006. Back

182   Witness statement of Nancy Kelley, Refugee Council in the case of R (AH) v Secretary of State for Health (West Middlesex University Hospital NHS Trust (Interested Party) CO 8095/2006). Back

183   Q75. Back

184   Appendix 46. Back

185   Appendix 65. Back

186   Appendix 50. Back

187   Appendix 46. Back

188   ibidBack

189   ibidBack

190   Appendix 21. Back

191   ibidBack

192   ibidBack

193   Q382 Back

194   Appendix 18. Back

195   Appendix 50. Back

196   Appendix 42. Back

197   ibidBack

198   Appendix 50. Back

199   Q72 Back

200   Q72. Back

201   Appendix 18. Back

202   Appendix 42. Back

203   Appendix 50. Back

204   Q93. Back

205   Q76. Back

206   ibidBack

207   Q88. Back

208   Q379. Back

209   E.g. Appendix 42. Back

210   N v Secretary of State for the Home Department [2005] UKHL 31. Back

211   D v UK (1997) 24EHRR 425. Back

212   Health Service Circular (HSC) 1990/018 and Welsh Health Circular (WHC) 1990/032. Back

213   Appendix 69. Back

214   Q398. Back

215   Appendix 89. Back

216   Appendix 46. Back

217   Q91. Back

218   Appendix 76. Back

219   Appendix 29. Back

220   Appendix 29. Back

221   Appendix 31. Back

222   Q85. Back

223   Q415. Back

224   Impact and use of health services by international migrants: Questionnaire survey of inner city London A&E attenders. Hargreaves and others, BMC Health Services research, November 2006. Back

225   Articles 3, 8, 14, 2 ECHR. Back

226   Asylum seekers and health- a BMA report, British Medical Association, October 2002. Back

227   Appendix 31. Back

228   Appendix 45. Back

229   Appendix 69. Back

230   Appendix 45. Back

231   Appendix 10. Back

232   Terrence Higgins Trust and George House Trust (2003), Recent Migrants using HIV Services in EnglandBack

233   Q371 Back

234   Q26 Back

235   Q378. Back

236   Q97. Back

237   Q101. Back

238   House of Commons Health Select Committee Third Report of Session 2004-05, New Developments in Sexual Health and HIV/AIDS Policy, HC 252. Back

239   Appendix 46. Back

240   Q397. Back

241   Q398. Back

242   Q78. Back

243   Q388. Back

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