Published 1 August 2008, doi:10.1136/bmj.a1111
Cite this as: BMJ 2008;337:a1111

Feature

NHS Care for Overseas Patients

Free for all?

¹ London

The UK government is due to issue guidance on treatment for foreign nationals later this year. But doctors say they should concentrate on giving appropriate health care and not worry about policing the UK borders, as Jane Cassidy reports

Doctors concerned about government attempts to restrict free NHS care for vulnerable migrant groups are gearing up for a fresh battle over treatment charges. The question of fees for foreign nationals is currently being revisited jointly by the Department of Health and the Home Office. A review of their findings is expected shortly and may lead to changes in regulations governing entitlement to free NHS primary care.

The government first consulted on proposals to deny free access to primary care for failed asylum seekers and undocumented migrants in 2004, but it never published the results of its public consultation exercise. But medical students and doctors from the group Medsin have summarised in a report¹ the contents of submissions to the 2004 consultation from doctors, primary care trusts, and non-governmental organisations working with migrant communities.They contacted those who responded to the consultation individually to ask for copies of their submissions—after a request in 2007 under the Freedom of Information Act to the Department of Health yielded only the names of 275 respondents. Concerns highlighted in the report include damage to doctor-patient relations, risks to public health, and discrimination.

Medsin member Tom Yates said: "The government proposes dramatic policy changes based on flimsy evidence. The information we’re gathering is valuable to the public debate on this." The group has now taken its freedom of information appeal to the information commissioner, a government officer who deals with freedom of information challenges.

Others are also lining up to attack restrictions on free primary care. An online petition has been signed by 743 doctors, and 90 members of parliament are backing an early day motion by MP Neil Gerrard. This supports the aims of the charity Medact, which challenges barriers to global health and is currently running a campaign against any measures that would compel general practitioners and other primary care staff to be forced to charge refused asylum seekers or other vulnerable foreign nationals for NHS care.^{2 3}The BMA has also pledged its support for a motion by its Junior Members Forum to promote the right of failed asylum seekers and undocumented migrants, such as trafficked people, to receive free health care while they are living in the United Kingdom, and to lobby the Department of Health and the Home Office to ensure that this right is recognised and upheld.

The 2004 government consultation led to confusion, says health charity Médecins du Monde UK. The government proposed barring some migrants from free primary and secondary care, but acted only to limit secondary care. Administrative staff responsible for registering patients with GPs often act as if the proposed limits on free primary care are in place, said the charity.⁴

Confusion over duties

Doctors’ confusion over whom they can treat means patients with serious medical conditions are wrongly being turned away from hospitals and general practices. Some conflict can occur between managers trying to control budgets by limiting care and doctors who are unhappy about being told there are patients they cannot treat.

Specialist healthcare solicitor Adam Hundt won a landmark judicial review at the High Court in April 2008 restoring the right of failed asylum seekers to free NHS hospital care.⁵The case involved a Palestinian failed asylum seeker with chronic liver disease, who could not return home, even though he wanted to, because of travel restrictions. The patient went to West Middlesex University Hospital when his condition worsened and was asked to pay in advance for treatment. He was living on government support of £35 (44, $70) a week. Doctors performed no biopsy to determine whether or not he had cancer or liver failure and promptly discharged him.

The government appeal against the High Court judgment linked to this case is due to be heard in November. In the meantime it has issued a table outlining revised entitlement to NHS treatment.⁶Failed asylum seekers placed with a hospital clinician before November will be able to continue their care, even if the government succeeds in overturning April’s judicial review decision.

But since this case many doctors have contacted Hundt seeking legal clarification, and clinicians have started attending seminars run by the solicitor for non-governmental organisations.

"A few [doctors] said that what I am telling them is completely different to what they had previously understood to be the law. They are telling me they’d been led to believe they didn’t have any choice about whom they can treat," he said. "Some managers are interpreting the rules too restrictively and are saying unless someone is at death’s door you shouldn’t treat them unless they pay. This is wrong."

The first decision about treatment is always clinical and in the hands of the doctor. If a doctor thinks treatment is "immediately necessary" it has to be given, regardless of immigration status, says Mr Hundt.

Vivienne Nathanson, the BMA’s head of science and ethics, reinforces this view: "The advice I’d give to doctors is if somebody needs treatment, sort out eligibility later. If in doubt, treat." Doctors must feel able to base clinical decisions on the needs of the patients sitting opposite them without fear of punishment, she said.

Department of Health guidance says hospitals should treat all patients who need immediate care regardless of their ability to pay. This may be because their condition is life threatening, because it will become life threatening if treatment is not given immediately, or because any delay will cause permanent serious damage. The decision is a matter of clinical judgment, which should not be second guessed by administrative staff.⁷

Wrongly turned away

Mr Hundt says he has come across several cases of "appalling" decisions made by some hospital overseas visitor managers, designated by each trust to oversee implementation of patient charging systems and recover money owed. He says some of these managers seem to see their role as one of limiting access wherever possible. In some cases expectant mothers have wrongly been told they would not get care if they turned up at a hospital in labour.

Lisa Power of the Terrence Higgins Trust said some patients with HIV who had no income received lifesaving treatment followed by four figure bills. Debt collectors even parked outside one of the trust’s offices, hoping to catch a patient. HIV testing and counselling are universally free in the UK, as is treatment for sexually transmitted diseases and infectious diseases such as tuberculosis, but treatment for HIV or AIDS is chargeable for those ineligible for free care.

Poor decision making can have "catastrophic consequences" for patients. Some have been refused chemotherapy, biopsies, antiretroviral therapy for HIV, and clinically effective treatment for a leukaemia—in this last case the patient subsequently died, Hundt says.

"Three of my clients—including a child—have died after treatment was refused. We’ll never know whether they would have died anyway, but they weren’t given the chance to survive," said Mr Hundt.

Inaccurate advice continues to be given after April’s High Court judgment. One troubled group of doctors contacted Mr Hundt about a patient with a brain tumour they were anxious to treat. Their trust’s overseas visitor manager insisted that the patient, a failed asylum seeker, was not entitled to treatment unless he paid £20 000 in advance. Mr Hundt advised them that this was wrong, and the doctors are now treating the patient. While checking the patient’s notes, he found the man had also been illegally turned away from an emergency department.

Every primary care trust has a counter fraud specialist. According to Mr Hundt, even though general practitioners have the power to register anybody as a patient, some counter fraud specialists wrongly challenge the eligibility of patients because of their immigration status. This can "scare GPs witless" says Mr Hundt, who has seen patients wrongly taken off the lists of family doctors as a result.

Whom can doctors treat?

Not everyone who comes to the UK is entitled to free care. People who don’t normally live in the country are not entitled to use the NHS free of charge, regardless of nationality, holding a British passport, or having at one time lived in the UK as a taxpayer. People from European Economic Area countries and Switzerland are exempt from charges, as are visitors from countries with bilateral healthcare agreements. Visa holders, asylum seekers, and failed asylum seekers who have not been issued with deportation notices are also covered.

Campaigners say it is wrong that vulnerable migrants such as trafficked people and others without documents face the same charges for NHS care that better off overseas visitors are legitimately billed for and can easily pay.

Dr Nathanson said she agreed the NHS shouldn’t be treating people who chose to come to the UK for free treatment, but failed asylum seekers were here because they couldn’t continue to live in their country of origin. "Even if they fail the test applied for asylum seekers, it doesn’t mean they’ve chosen to come here as ‘health tourists,’" she said.

Claiming that health tourists underpin the government’s rationale for limiting free NHS access is "an evidence free zone," say critics. Detailed statistics are hard to come by, even at West Middlesex University Hospital Trust, where a pilot project aimed at strengthening the management of charging regulations for all overseas visitors is being evaluated by the Department of Health.

The trust says it sees more overseas visitors than other hospitals because of its proximity to Heathrow Airport. Last year it treated 39 patients from countries without reciprocal healthcare agreements with the UK, but recorded no details of the nationality or immigration status of these patients.

Precisely quantifying the saving made by its "stabilise and discharge" policy is difficult, says the trust. Income generation manager, Andy Finlay, who designed the policy, was quoted in a BBC online article taking a tough approach to overseas patients whom he judged ineligible for NHS treatment.⁸ Mr Finlay is no longer available for media interviews, says the trust’s press office.

Trust medical director, Andrew Winning, defended the policy. A "three wise men" panel of senior doctors, including Dr Winning, decided when a patient was stable after treatment for an acute episode, so the decision was not put on the shoulders of one doctor and was given a degree of clinical anonymity. "Clinicians don’t feel pressure to turn people out before they are stable and fit for discharge," he said.

The West Middlesex pilot project is linked to a joint scheme by the Department of Health and the UK Border Agency called Securing Our Borders. Critics say this is where the government agenda lies, and hospital staff should stay out of immigration matters.

Moyra Rushby of Medact said: "From a health professional’s point of view our interest is in providing care for people. We don’t have the expertise or knowledge to make decisions about people’s legal status. It’s not our role to do that."

The Medsin report Medsin found three quarters of submissions from healthcare providers showed they were concerned that denying care would place them in breach of professional codes of conduct. Many also thought questioning patients about their immigration status could damage the doctor-patient relationship, and they questioned the workability of asking frontline healthcare workers or NHS administrators to determine immigration status. Doubts over the cost effectiveness of the plan were raised by more than half, with many arguing that administrative costs and the uptake of expensive emergency services would exceed savings made in primary care. The risk to public health from delayed detection and treatment of infections was highlighted by more than two thirds of respondents, along with the potential effect on children and other vulnerable groups. Discrimination, social marginalisation, and damage to the public perception of migrants were all highlighted, with 27% concerned that the proposals would violate several international human rights agreements, which could lead to legal challenge. Most people who responded thought that refused asylum seekers settled in the UK should not be categorised as "overseas visitors". For the full report go to: www.wherestheconsultation.org

Exceptions to limitations imposed on access to free NHS secondary care for overseas visitors Treatment that is immediately necessary in the opinion of a doctor Treatment in hospital emergency departments and in some walk-in centres Treatment for infectious diseases such as tuberculosis and polio Treatment for sexually transmitted diseases (except HIV infection) Compulsory psychiatric treatment for people detained under the Mental Health Act. For a full list of exempt conditions see the Department of Health’s guidance 7

Cite this as: BMJ 2008;337:a1111

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Competing interests: None declared.

References

1. Medsin. Proposals to exclude overseas visitors from eligibility to free NHS primary medical services. 2008. www.wherestheconsultation.org.
2. GoPetition. Medical justice for asylum seekers. 2008. www.gopetition.co.uk/online/15682.html.
3. Gerrard, N. Early day motion: access to healthcare. 2008. http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=34322&SESSION=891.
4. Médecins du Monde UK. Improving access to healthcare for the community’s most vulnerable. 2008. www.medecinsdumonde.org.uk.
5. High Court of Justice. R (on the application of A) v Sec of State for Health (Def) & West Middlesex University Hospital NHS Trust (Interested Party). April 11, 2008. www.medact.org/article_refugee.php?articleID=777.
6. Department of Health. Asylum seekers and refugees. 2008. www.dh.gov.uk/en/Healthcare/International/asylumseekersandrefugees/index.htm.
7. Department of Health. Implementing the overseas visitors hospital charging regulations: guidance for NHS trust hospitals in England. Revised guidance Jan 2007. www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4080313.
8. Furlong R. Getting tough with "health tourists." BBC News 2008 Apr 29. http://news.bbc.co.uk/1/hi/health/7367806.stm.

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