healthcare update - issue five
Court of Appeal rules on entitlement of failed asylum seekers to free healthcare
You may have seen our bulletin in May last year,
'Are failed asylum seekers entitled to free healthcare?',
commenting on the High Court case of Mr A, a failed asylum seeker
who suffered chronic liver disease. Mr A was in an unenviable
position, his presence in the UK was unlawful but he couldn’t
return to the Middle East because he had no travel documents. The
Palestinian authorities cannot issue such travel documents because
it is not a recognised state and as a matter of course Israel
refuses to facilitate the return of Palestinians to the occupied
Palestinian territories.
The issue before the Court was whether he should be charged for
his treatment at West Middlesex University Hospitals NHS Trust now
he was a failed asylum seeker. This is an important issue for
Trusts because the cost of treating overseas visitors is not
reimbursed by commissioners. Attracting a number of such patients
requiring expensive treatment will have a significant impact on
budgets and will alarm all Chief Executives and Finance
Directors.
In the first instance decision last year, the High Court
considered the NHS (Charges to Overseas Visitors) Regulations 1989,
which stipulates when a Trust should charge for NHS care, and the
accompanying Ministerial Guidance on the Regulations and decided
that failed asylum seekers who have yet to return home, like Mr A,
would no longer automatically be charged for NHS care. It was
estimated that there were 11,000 failed asylum seekers, whose
return home had been delayed, who would now qualify for free
healthcare.
The Secretary of State for Health appealed to the Court of
Appeal against the High Court’s decision that Mr A was ordinarily
resident in the UK for the purposes of obtaining NHS treatment and
there was no discretion to withhold treatment. The Court of Appeal
gave judgment on 30 March 2009.
The Court of Appeal allowed the Secretary of State’s appeal on
the issue of whether a failed asylum seeker could be said to be
ordinarily resident in the UK. The court held that free NHS care
was available to those people with a legitimate connection with the
country and that did not include those who should not be here.
Whilst an application for asylum was being processed, the applicant
was entitled to free NHS treatment but that right ended once it was
determined he should not be here.
It was held that asylum seekers are not ordinarily resident
because they do not have permission to be here but are here through
“grace and favour” whilst their applications are determined. Their
presence here for 12 months or more does not entitle them to NHS
care.
However, Mr A’s cross appeal, arguing that the Ministerial
Guidance was unlawful, was also partially successful. As far as
Trusts’ discretion to withhold treatment is concerned, the Court of
Appeal confirmed that there is discretion to either withhold
treatment or to give treatment even when there is no prospect of
the patient being able to pay for it. Trusts are required to
exercise this discretion rationally and therefore risk challenge to
their decisions by way of Judicial Review.
The Court of Appeal was critical of the Ministerial Guidance.
Treatment is divided into three categories:
- Immediately necessary treatment
- Urgent treatment
- Non-urgent treatment
In respect of ‘immediately necessary treatment’ it was not clear
what investigations a Trust should undertake to find out when
someone might return home in order to consider what limits, if any,
should be placed on their treatment.
In respect of ‘urgent treatment’ the guidance encourages Trusts
to collect a deposit in advance, equivalent to the full cost of
treatment, but no guidance is given on what Trusts should do if
that deposit cannot be paid and the patient cannot return home
before the treatment is required. The guidance was also found to be
lacking in respect of ‘non-urgent treatment’ where there was no
prospect of the person returning home within a medically acceptable
time.
The DH promptly wrote to all Trusts on 2 April with an update to
the Ministerial Guidance. The DH is planning to re-draft the
guidance in the autumn, following a period of consultation. In the
meantime, pending any appeal to the House of Lords (permission to
appeal was refused by the Court of Appeal, it is not known whether
Mr A has petitioned the House of Lords direct) the position is:
- Failed asylum seekers are not entitled to free NHS care
- Trusts have discretion whether to withhold treatment pending
payment
- Trusts have discretion to provide treatment even though there
is no prospect of the patient being able to pay for it
- Prior to exercising this discretion Trusts should make sure
appropriate investigations are carried out and documented
This is going to be a sensitive area for Trusts, pending
publication of the revised guidance from DH. This issue will have
financial implications in relation to the ‘cost’ of providing
treatment that is not paid for by the patient or commissioners, and
is also one where Trusts may be vulnerable to their decisions being
challenged through the courts.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.