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I spent many years dealing with international development issues and visiting developing countries and conflict zones. They are not very nice places to live. Are these people criminals to seek a better life, even if they are not genuine asylum seekers but so-called economic migrants? Is that a crime? Would we not seek a better life if we were living in those conditions? Would we not want try to make things better for ourselves and our families?
It must be said about this Government—I said it at lunchtime in another context—that the Prime Minister and his allies have done so much for international development. They have been champions of overseas aid and the relief of third world debt, knowing full well that the way to stop asylum seekers and economic migrants is to make those developing countries better and prevent conflict. The Government know that. Yet, when we have not yet succeeded and people come here, we treat them in this appalling way. I urge the Government to reconsider and show true humanity.
Lord Judd: My Lords, I am glad that the noble Baroness, Lady Tonge, made the remark at the end of her intervention about the Government’s position on overseas aid and development. The commitment of the Prime Minister while he was Chancellor was exemplary. The whole Government have followed in tune and we have reached a stage where, as far as I can see, no major political party will go into the next general election without a determination to maintain that tradition. This is a transformation, and I say that as a former overseas development Minister; it was certainly not the case in my time.
Behind all this is not just technical theory, but compassion. It is extraordinary that a Government who have shown so much spirit of compassion in this context are still dragging their feet on this issue. I hope that even at the eleventh hour plus, my noble friend may feel able to respond in a positive way to meet the arguments that have been put forward.
I can sum this up quite simply. I put the points in no particular order of priority, but, first, there is the stress caused to the medical profession. Many members of the profession feel deeply unhappy about the situation in which they find themselves. Of course, as the noble Baroness argued, it should be a clinical decision. When I was on the Joint Committee on Human Rights, which was a little while ago now, we heard direct evidence of the administration intervening when clinical teams were treating a patient and the treatment had to stop. There is evidence on the record of the medical profession being thwarted in its commitment.
Secondly, the situation is counterproductive and illogical because, as the noble Baroness argued, if you wait until there is an emergency the costs may be much higher in the long run than if you had intervened effectively at an earlier stage.
Thirdly, it seems to me that on HIV, we are failing to fulfil our specific international obligations under conventions. It also seems to me—this point has been covered—that we are putting our own population at
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Baroness Thornton: My Lords, I shall respond to the three related amendments. I believe they have a common principled intent of protecting the human rights of vulnerable groups with regard to the provision of healthcare. First, I emphasise that we recognise and respect fully our duty to ensure that the provision of healthcare is fully compliant with human rights principles. Noble Lords have raised genuine concerns about treatment being denied and have pointed to the recent Court of Appeal judgment in the case of YA as an example of where the department’s guidance was not clear. It has never been the department’s intention that necessary treatment should be denied, delayed or restricted, but we have accepted fully the court’s judgment, and indeed have welcomed the opportunity to act further to ensure that these rights to treatment are enforced.
That is why we swiftly issued interim guidance on 2 April in a letter to the NHS clarifying that decisions on whether or not treatment should be considered urgent must necessarily take account of the patient’s plans and intentions to return home and their ability to do so. This interim guidance also stated that urgent treatment should always go ahead even if payment has not been received. If the patient genuinely has no funds or resources, hospitals may decide not to ask for deposits or may write off any debt. We expect hospitals to act reasonably when asking for payment or recovering debts.
We have also committed to a redraft of the full guidance in the autumn, after assessing the initial impact of the interim guidance. We will consult with key stakeholders to ensure that the final guidance is clear, operable and compliant with the Court of Appeal judgment. Our consultation will include counsel and representatives of YA, as well as medical professionals and hospital managers and could also include interested Members of both Houses.
In proposing Amendment 71, the noble Baroness, Lady Stern, has raised specifically the case of Section 4 failed asylum seekers, those whom the UK Border Agency accepts have a legitimate temporary barrier to leaving the UK. I know that my noble friend Lord Dubs feels strongly about this group of failed asylum seekers. Indeed, he raised their case specifically when he met with me recently. He and the noble Baroness make a strong case that it is unfair and indeed inhumane that access to healthcare should be restricted when they are willing but temporarily unable to return. I should point out that in these circumstances urgent treatment should not be denied. It would be subsequently chargeable, but of course such a charge is highly unlikely to be followed up. Indeed, any free treatment that had commenced before an asylum claim had been refused would continue free of charge.
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However, the Government have sympathy with the view that some special provision should be made for this particular group, and we are actively examining this issue in the context of our current review of rules on migrants’ access to free NHS services. I cannot pre-empt the outcome of that review today, but I can reassure the noble Baroness that my noble friend’s clearly expressed views will be taken fully into account. Any resulting change to the charging arrangements would be enacted through secondary legislation, and reinforced through the published charging guidance that is issued to the NHS.
I recognise the noble Baroness’s intentions to ensure that the basic rights of this potentially vulnerable group are protected. I hope I have been able to demonstrate the department’s recent actions and continued intentions to address the specific concerns that Peers have raised in this context.
Amendment 73 relates to refugees and failed asylum seekers. There are two distinct parts to this amendment: an addition to the existing category of refugees, and an extension to refugees and other human rights applicants to those whose applications have been refused—failed asylum seekers.
On the addition to the existing category of refugees, this definition is intended to cover any person who is seeking refuge or protection, whether that be under the 1951 United Nations convention—an asylum seeker—or through any other route, including the European Convention on Human Rights. The trigger, therefore, is not whether a person is designated an asylum seeker but whether they are formally deemed to be seeking refuge. This therefore already captures most human rights applicants. A small number may seek leave under other ECHR criteria, such as family life or marriage, but if they are not in need of immediate protection, we should not extend full rights and benefits unless or until leave to remain is granted.
I can confirm that the department is reviewing the regulations and guidance on charging and will ensure that the intended definitions are made fully clear when these are laid, which I hope will be later this year.
On the proposal to extend free hospital care to failed asylum seekers, as I explained in Committee, the issue of whether all failed asylum seekers—not just those who are unable to return home—should receive free and unrestricted treatment has to take account of a range of complex issues, and this should be left to the current review of access to the NHS for foreign nationals. That remains our principled position, but with two important caveats.
First, I have already indicated that the Government are sympathetic to the case for Section 4 failed asylum seekers, and the department will actively examine this issue with government colleagues. Any resulting change would be enacted through secondary legislation and is not required to be linked with this particular Bill.
Secondly, I have also referred to the actions that the department has taken following the recent Court of Appeal judgment regarding treatment guidelines. These should ensure that no failed asylum seeker is unreasonably denied necessary treatment, irrespective of ability to pay.
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It is also worth noting that any course of treatment that commences prior to an asylum claim being refused should continue without charge. For people who are appealing to remain, the treatment also remains free until the appeal is still being heard. In response to the noble Baroness, I confirm that it has always been a clinician’s decision; this has been clarified to me by my noble friend, and I suppose that he should know.
When treating diabetes, treatment must take into account how long the asylum seeker is likely to be in the community. However, there is no question that people will be denied such treatment. That would be counterproductive. If they are unlikely to be returned home within a reasonable time, the guidelines say that they certainly should be treated.
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In conclusion on this amendment, I hope that noble Lords would agree that we have made some progress on this issue. I am very grateful for the representations that noble Lords have made on this issue. I assure noble Lords that we take seriously the accessibility of healthcare for refugees, as our actions and commitments on the definition of refugees, on urgent treatment guidelines and on Section 4 asylum seekers demonstrate.
Finally, in response to Amendment 74, noble Lords have raised some genuine concerns in the course of this debate. I will address these shortly, but first I want to clarify the extent to which full treatment for HIV is already provided for migrants and other visitors. Exemptions for charging are in place for all asylum seekers as long as their application and any appeal remain current. If the asylum application and any appeal subsequently fail, a person already receiving HIV treatment will continue to receive it free of charge up until they are deported or leave the country. HIV treatment, once started, is never withdrawn.
NHS guidance also makes clear that urgent or immediately necessary treatment should not be delayed, irrespective of a person’s inability to pay, and that such decisions to treat must always be clinical. The guidance also makes clear that antenatal HIV treatment must be considered as immediately necessary and provided without delay. I have also referred to how we have reinforced this guidance following the recent Court of Appeal judgment.
HIV is an important public health issue, and I acknowledge the breadth of knowledge and expertise which have informed noble Lords’ interventions both today and during Committee stage. I am aware that HIV treatment and prevention strategies are constantly evolving. Noble Lords touched on some of the more topical issues linked to the benefits of early treatment, the need to continue to reduce undiagnosed and late HIV diagnosis and the role of HIV treatment in reducing HIV viral load and infectivity. This research is recent and still evolving, but the department recognises that it needs to evaluate its conclusions and implications.
Much of the debate in this area focuses, understandably, on the very important humanitarian and medical-ethical issues associated with HIV care, especially for very marginalised groups, and that is quite right. However, an exemption from charging as proposed would apply to all visitors to the UK, irrespective of their residency
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HIV is, of course, a cross-government issue, and we need to consult with other government departments, including ensuring alignment with the Government’s international AIDS strategy. The department has therefore decided to initiate further work to review the current policy of excluding HIV treatment from the exemptions set out in regulations. This internal review will consider the latest clinical and public health evidence, as well as a more robust assessment of the likely capacity and cost implications. We will also examine how the current regulations and guidelines are being applied in practice. We would be happy to receive representations from interested parties to inform this work. The conclusions of this work will be published and may lead to consultation on any resulting proposals. I should point out that changing HIV charging policy in the way that the noble Baronesses are intending requires amendments to secondary regulations rather than primary legislation, as has been tabled here.
In conclusion, I hope that noble Lords will appreciate that their strongly held views presented during two recent debates have been recognised. While it is not possible to agree to an immediate change, the department is willing to commit to a review of the current policy, informed by more comprehensive and current evidence and information. In the light of these assurances, together with my previous assurances regarding Section 4 failed asylum seekers, the revision of treatment guidelines and the definition of refugees, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Tonge: My Lords, I think that I have just heard some very good news but, because it is late and I have been listening very hard for a very long time, I cannot say whether I am absolutely sure that it is very good news until I have read it very carefully tomorrow and until I have read between the lines, too. I thank the Minister very much indeed for her help and consideration on this matter. It seems to me that the Government are living up to their—dare I say it?—humanity at last on this issue. I thank her very much, but I reserve a little bit of judgment until I have looked at it again tomorrow morning.
Baroness Stern: My Lords, I, too, am grateful to the Minister for what I am fairly convinced was an extremely helpful reply. I have no doubt that she takes this matter very seriously, and her efforts and commitment have been widely appreciated on all sides of the House. We are all grateful to her. On that basis, I beg leave to withdraw the amendment.
72: After Clause 32, insert the following new Clause—
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(1) The Health and Social Care (Community Health and Standards) Act 2003 (c. 43) is amended as follows.
(2) In section 15 (private health care), after subsection (4) insert—
“(4A) The Secretary of State may by regulations make provision for the regulator to permit exceptions to the restriction mentioned in subsection (2) if it is satisfied that in all the circumstances it is appropriate to do so in the interests of the National Health Service.
(4B) The regulations may specify conditions upon which such exceptions may be permitted.””
Earl Howe: My Lords, I bring us back to an issue that we debated in Grand Committee on an amendment tabled by the noble Baroness, Lady Meacher. I am referring to the private patient income cap. The cap applies only to foundation trusts. Its effect is to prevent a foundation trust from generating a higher proportion of its income from private patients than in 2002-03—the year before foundation trusts were authorised. The cap was seen as a necessary restriction because of anxiety expressed during the passage of the 2003 Act that foundation trusts might quietly and with impunity change their character and become less than fully fledged NHS bodies.
In Grand Committee, the noble Baroness, Lady Meacher, made a powerful case for allowing the restriction to be relaxed. Foundation trusts are well and truly part of the NHS and will continue to be so. There is no risk of them ceasing to regard NHS patients as their prime concern and responsibility. The terms on which foundation trusts are authorised to operate, their supervision by Monitor, their governance arrangements and other safeguards all see to that. However, foundation trusts are now saying that the private patient cap is denying to a substantial and growing part of the NHS income from privately funded work that could be invested in improving services and delivering innovation for NHS patients.
This is not an issue of empire-building or generating private income for the sake of it. It is about enabling foundation trusts to invest in new services for NHS patients where the business case for that investment stacks up only if an element of private patient income can be assumed. In other words, it is about deploying additional private income in order to give a better standard of service to NHS patients. It is also about enabling foundation trusts to fulfil some of the Government’s more general objectives; for example, delivering the well-being agenda and ensuring continuity of care for patients who choose to top up their NHS treatment with privately purchased services.
The quantum of the private patient cap varies tremendously, and there is often no logic behind it, apart from the fact that it happened to be the product of a trading pattern of seven years ago. One feature of the cap is that it skews the playing field within the NHS: different foundation trusts have different caps, and ordinary NHS trusts are not subject to the cap at all. Some foundation trusts have a cap of 30 per cent, some work to only 5 per cent, and mental health foundation trusts have a cap of zero. The argument for these different and arbitrary income ceilings no longer holds good—if it ever did. I would like to believe that there is sympathy for this argument across political parties.
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I am particularly glad to see the noble Lord, Lord Warner, in his place. In his admirably frank and open way, he has publicly spoken out against the private patient cap. He did so last month in an interview with the Health Service Journal. As the Minister who took the 2003 Act through this House, it was particularly courageous of him to call this part of the Government’s policy a mistake.
In Grand Committee the Minister said that she was not minded to give the amendment tabled by the noble Baroness, Lady Meacher, favourable consideration. I feel that it is right to ask her to think again. My amendment would enable exceptions to the private patient income cap to be permitted by Monitor when Monitor was satisfied that the requested departure from the cap would be in the interests of the National Health Service. It would be open to the Government to lay down any further conditions that were felt appropriate. A formula roughly along those lines is workable as well as desirable. I hope that the Minister can give me some encouragement that she will look constructively on it. I beg to move.
Lord Warner: My Lords, I rise to confess my sins and to support the noble Earl’s amendment. Before doing so, I should declare an interest. I am a paid adviser to the General Healthcare Group, but I am very even handed as I am also the chairman of NHS London Development Agency and am trying to get more trusts into foundation trust status in London.
It would be honest to say that the provisions in the 2003 Act, as the noble Earl has rather eloquently described them, are a bit anachronistic. They were put in for another time because of the anxieties at the beginning of the foundation trust idea. If we are absolutely honest, they were put in as much as sops to parts of the Labour Party as for any other reason. We need to face up to the fact that we were in that position.
I have confessed my sins. Briefly, because the hour is late, why do we need to change? First, as the noble Earl said, the present provisions are absolutely arbitrary on their impact on different trusts around the country. There is an equity issue on why we should change. Secondly, on occasion they stop particular trusts becoming foundation trusts because part of their business case rests on the fact that they have a particular expertise or specialism. Great Ormond Street would be one such case. It cannot get its business case through in a way that will satisfy Monitor because of the arbitrariness of the cap on its business case. It is counterproductive in some instances.
Thirdly, as the noble Earl said, it is potentially a source of income for trusts that they can use for the benefit of NHS patients. Something that was put in to protect the NHS is in practice often damaging to the NHS because of a trust’s inability to conduct its affairs in a way that generates income that can be invested in the development of new services for NHS patients. Fourthly, there is the small matter of UK plc. Some of these hospital trusts have international reputations. People are prepared to come from abroad for services in this country, for which they are prepared to pay and without any detriment to NHS patients. The cap restricts some of that activity so we are at a
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Baroness Meacher: My Lords, I, too, rise to speak to Amendment 72. It provides for the regulator, Monitor, to permit exceptions to the private patient cap if,
- “in all the circumstances it is appropriate to do so in the interests of the National Health Service”.
Clearly, that would be an improvement on the present situation, but I believe that this amendment could be enhanced to provide better protection for NHS patients in particular. One could envisage within this amendment that some detriment might be caused to NHS patients even if overall there would be a benefit to the NHS. We have to be careful that we do not permit private patient work to be developed when this could have a direct detrimental effect on some NHS patients.
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