Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill

Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill - Human Rights Joint Committee Contents

Memorandum submitted by the Global Health Advocacy Project

We are a group of students and young healthcare professionals affiliated to the student organisation Medsin. Our aim is to challenge health inequalities in the UK and overseas.

EXECUTIVE SUMMARY

1. A policy of deliberate denial of healthcare, secondary or primary, to undocumented migrants and refused asylum seekers is inhumane and contravenes several international Human Rights agreements.

2. Such a policy would contribute to discrimination against and marginalisation of vulnerable groups with every right to remain in the UK which is entirely out of line with the current Health Bill and NHS Constitution.

3. This submission will argue that in order to bring the Health Bill and NHS Constitution in line with international Human Rights law, in particular General Comment 14 regarding Article 12 of International Covenant on Economic, Social and Cultural Rights, undocumented migrants and refused asylum seekers should be excluded from the remit of the charging regulations set out in Statutory Instrument 614.

1. The Health Bill[25] establishes a framework for the NHS Constitution[26] and places a duty on all providers of NHS services to have regard of the NHS Constitution.

2. The NHS Constitution outlines the "principles and values of the NHS in England" as well as "pledges which the NHS is committed to achieve":

The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief. It has a duty to each and every individual that it serves and must respect their human rights. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population.

Access to NHS services is based on clinical need, not an individual's ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament.

[Staff] have a duty not to discriminate against patients or staff and to adhere to equal opportunities and equality and human rights legislation.

3. The Constitution document sets out that "everyone counts. We use our resources for the benefit of the whole community, and make sure nobody is excluded or left behind. We accept that some people need more help, that difficult decisions have to be taken—and that when we waste resources we waste others' opportunities. We recognise that we all have a part to play in making ourselves and our communities healthier".

4. In April 2004, Statutory Instrument 614[27] limited access to NHS hospital services for undocumented migrants and refused asylum seekers. The declared purpose of these regulations was to crack down on health tourism. There is no evidence of significant levels of health tourism in the UK, a point which has been conceded by the Department of Health.[28]

5. In summer 2004, the Department of Health consulted on "proposals to deny overseas visitors, including refused asylum seekers, free primary care treatment on the NHS".[29] 274 individuals and organisations made submissions to the enquiry but, unlike every other Department of Health consultation published that year, the department published no response.

6. To date, the government has still not published a response, nor has it made public the submissions to the initial consultation. A proportion of the submissions were released in August following requests made through the Freedom of Information Act. A group of medical students and doctors released a report in August detailing the contents of these submissions.[30]

7. Twenty nine percent of submissions expressed concerns that the proposed changes in entitlement to primary care would breach international Human Rights agreements which the UK ratified. Secretary of State for Health, Alan Johnson, referred to the "sheer inhumanity of actually refusing to treat people that are ill in primary care".[31]

8. In withdrawing free access to secondary healthcare from undocumented migrants and asylum seekers whose refused asylum claim the UK is in breach of these in Human Rights agreements including Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); General Comment 14 regarding Article 12 of the ICESCR; Article 25 of the Universal Declaration of Human Rights and Articles 2, 3 and 8 of the European Convention on Human Rights (ECHR).

9. This submission will argue that in order to bring the Health Bill and NHS Constitution in line with international Human Rights law undocumented migrants and asylum seekers whose refused asylum claim has failed should be excluded from the remit of the charging regulations set out in Statutory Instrument 614.

HUMAN RIGHTS

1. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[32] states health is a fundamental human right. It describes "the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health".

2. Article 2 of the ICESCR puts states under the specific obligation "to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

3. In General Comment 14 related to Article 12 of the ICESCR, the right to the highest attainable standard of health, the UN Committee on Economic, Social and Cultural Rights specifically states that "states are under the obligation to respect the right to health by [...] refraining from denying or limiting equal access for all persons'.[33]

4. The committee explicitly mentions that this obligation extends to "all persons, including [...] asylum seekers and illegal immigrants, to preventive, curative and palliative health services".

5. Article 25 of the Universal Declaration of Human Rights outlines that everyone has a right to health which shall be "shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

6. Charging refused asylum seekers and undocumented migrants for NHS care effectively prevents access to any healthcare as there are high levels of destitution in both populations,[34],[35] meaning they cannot access private healthcare. Charging for NHS care discourages engagement with healthcare services. Research in Sweden suggests there is a risk that policies which link healthcare providers with immigration agencies in the minds of migrants can lead them to disengage with services.[36]

7. Evidence of vulnerability and inequitable access to healthcare of migrant populations is given in the latest report from the Confidential Enquiry into Maternal and Child Health.[37] Refugee and asylum-seeking women accounted for 12% of maternal deaths in 2003-05.[38] Barriers to accessing care for these women are already significant.[39]

8. A King's Fund survey of organisations providing services for asylum seekers concluded that asylum seekers and refugees in the UK "are subjected to a system that leaves them insecure, impoverished and unhealthy".[40] Further restricting access to care could worsen the situation.

9. Removing access to healthcare from a vulnerable section of the population has further huge implications for the physical and mental health of individuals concerned. Case studies show that, since NHS regulations were amended in 2004, both those not entitled to care as well as those entitled to care, but with limited understanding or ability to communicate their rights, have come to harm.[41],[42],[43]

10. Lack of alternative healthcare provision to some individuals may constitute a breach of articles 2, 3 and 8 of the European Convention on Human Rights (ECHR),[44] which guarantee the right to life and prohibit inhumane or degrading treatment.

11. Article 14 of the ECHR states that "the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status'. The ECHR is instituted into UK law through the Human Rights Act. Currently, the only free healthcare services available outside the NHS are those provided by organisations such as Project London and the Helen Bamber Foundation, with limited capacity.

DISCRIMINATION

1. The current charging regulations give rise to a risk of race discrimination. 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.[45] The Health Minister told the JCHR that she had "looked at issues regarding public health".[46]

2. The Joint Council for the Welfare of Immigrants (JCWI) told the JCHR 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".[47]

3. Denial of care to vulnerable migrants may lead to illegal discrimination against asylum seekers through refusing to provide them with healthcare services or by providing lower standards of care.[48]

4. Healthcare professionals lack skills needed to accurately determine immigration status.[49] Identifying those eligible for treatment is difficult and may result in or exacerbate existing discrimination, even against those who are entitled to care.[50],[51]

5. In their tenth report The Treatment of Asylum Seekers, the JCHR reported 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.[52]

CONCLUSION

A policy of deliberate denial of healthcare, secondary or primary, to undocumented migrants and refused asylum seekers is inhumane and contravenes several international Human Rights agreements. Such a policy would contribute to discrimination against and marginalisation of vulnerable groups with every right to remain in the UK which is entirely out of line with the current Health Bill and NHS Constitution.

February 2009