The Government released its response to the consultation on Access to the NHS for foreign nationals on 18 March 2011. While important exemptions for certain groups such as some refused asylum seekers and unaccompanied children will now be included in the new regulations, concerns still remain.
In April 2004, NHS regulations were introduced which made some ‘overseas visitors’ subject to charging for accessing secondary (hospital) care. This included refused asylum seekers and victims of trafficking and children. Subsequent amendments to the regulations exempted victims of trafficking.
A number of treatments were exempt from charging. These included treatments delivered in A&E departments, family planning services, treatments for certain communicable diseases, and treatments which started before an asylum claim was refused. Treatment deemed ‘immediately necessary’ or that which is needed to prevent serious damage to health is chargeable. However, such treatment cannot be refused due to an inability to pay. While the full scope of ‘immediately necessary’ treatment was not clear, it did include maternity and antenatal care. “Urgent treatment” was defined as treatment which is not immediately necessary but could not wait until the patient could reasonably be expected to return home. Where a return date was not obvious, a period of 6 months should be used. In these cases, treatment should be limited to the care required to prevent a worsening of the condition.
Bills could be chased by debt collection agencies as far as was ‘reasonable’, including the use of debt collection agencies, though destitute individuals could have uncollectable debts written off.
The current consultation
The current consultation sought input on a number of new proposals along with new draft guidance from the Department of Health which was found insufficiently clear by the Court of Appeal in an April 2009 ruling.
The draft includes further details about how a patient’s eligibility should be verified and how charges should be made;
The main changes that were consulted in brief are as follows:
- Refused asylum seekers who are supported by the UKBA because there are recognised barriers to their immediate return or because they have minor children (section 4 and Section 95) will be exempt from charges;
- The right to enter to UK may be denied to overseas visitors with extensive debts to the NHS;
- The government is considering ways to make health insurance compulsory for visitors.
The government also consulted on whether consolidation of charging regulations and revised guidance were a clearer reflection of existing regulations or whether they imply a material change in policy.
Importantly, these proposals relate only to secondary care. GPs continue to have discretion as to whether to add a patient to his/her list though he cannot refuse patients on a discriminatory basis. Proposals to exclude foreign nationals from access to free primary care were previously consulted in 2004, results of that consultation were finally released in June 2009.
There were a number of concerns voiced by those who responded. A majority of respondents disagreed that the consolidated regulations were a clearer, more accurate and succinct reflection of existing regulations. A greater majority believed that the consolidated regulations implied a material change in policy.
The complex rules around who is eligible and for what kind of care remains confusing. The government has promised to establish better processes across the NHS to screen for eligibility. However, they conceded that the rules around charging remained complex and difficult to apply and did not apply the right balance between fairness and affordability. These provisions will therefore be the subject of further review.
There were also concerns that the draft guidance was worded in such a way as to suggest that the treatment patients received could be dictated in part by their ability to pay. The government confirmed in its response that clinicians considering the financial consequences when choosing a course of treatment for a chargeable patient who can’t pay would be discriminatory and this will be revised. However, they maintained that clinicians already have a duty to consider the costs of treatment.
Some respondents highlighted the risk that sharing information between the NHS and the UKBA with the aims of refusing person with outstanding NHS bills could result in breaches of confidentiality if clinical information were shared. The government in response expressed confidence that relevant information could be shared without including clinical information or breaching data protection rules already in place.
Others were concerned that vital health services are being carried out but then recipients are being chased for payment when they are unable to pay, creating distress in ill people. In response, the government has stated that NHS bodies will not use debt-collection agencies when it is not cost-effective to do so.
Public health risks
Critically, the issues of public health risks of sections of the community disengaging from health services remained unaddressed.
While the exemptions for some refused asylum seekers and unaccompanied children were welcomed by the majority of people responding and the government has promised a new draft of the guidance which will address concerns such as provisions for diagnosis and investigation, serious concerns remain. Chief among these is the statement that that charges should apply equally across all providers of NHS services including primary care providers. The government has stated that it will carry out further reviews on
- Qualifying residence criteria (ordinary residence)
- Whether GP services (primary care) could be charged for
- Whether to introduce a requirement for health insurance tied to visas.
It is unclear to what extent the government will take into account responses to a previous consultation on the issue of primary care charging carried out in 2004 entitled ‘Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services’.
Though many responding to that consultation were in favour of charging, there was wide support for exemptions for all refused asylum seekers, students, pensioners, victims of domestic violence and people with mental health problems among others.
Concerns raised that offering treatment on a discriminatory basis to those within UK jurisdiction could breach international obligations were dismissed by the government. It is possible that this position could be tested in legal cases.
The government also failed to address serious issues raised around the public health risks associated with having an underclass without access to health
It is expected that the consolidated regulations and revised guidelines will be updated shortly and the government has stated that this change will be carried out as soon as possible. Proposals for further review will be put to consultation in 2012.
It is important to note that the issue of whether HIV treatment free of charge on public health grounds for all is currently the subject of a separate consultation.