Failed Asylum Seekers can be denied NHS Treatment

Monday, 30 March 2009 23:16

The Court of Appeal has now decided the case of YA -  a failed Palestinian asylum seeker who sought to challenge the Government guidance to hospitals on NHS charges. A summary of the decision is below.

Whilst the court held that it was open to hospitals to charge, it also said that hospitals have the discretion not to charge and that the guidance did not cover what to do if a patient could not pay in advance.

The Court ruled that failed asylum seekers cannot as of right receive free secondary health care (hospital care etc but not including treatment in casualty / drop-in centres and for certain communicable diseases). Asylum seekers who have not had a final decision on their case and those granted status are unaffected by the decision. The judgment also does not affect courses of treatment begun before an asylum application was finally determined, but continuing after that date. GP treatment is also unaffected. A BBC news item on the case is here.

The full text of the decision is on the Bailii website - click on 'read more', below, for our summary of the case.

Summary of decision

The court decided that:

1. The leading case of Shah had an exception from ordinary residence for those who were unlawfully resident (para 53).  An asylum seeker, whilst lawfully present if on temporary admission or release, was not lawfully resident.
2. As a general principle of law, a failed asylum seeker not lawfully here should not profit from their unlawful action (para 53)
3. An asylum seeker was not ordinarily resident because temporary admission or release meant that they had conditions as to where to live and to report.  This was extra-ordinary (para 61).
4. no exception from charge, where ordinary residence was not established, was made for failed asylum seekers in the NHS (Charges to Overseas Visitors) Regulations (para 62)
5. Lawful presence whilst on temporary admission or release was not the same as ‘lawful residence’.  Thus, a failed asylum seeker could not take advantage of Regulation 4(1) exempting those who had lawfully resided for 1 year from charge.(paras 63-65).
6. Hospitals and NHS Health Trusts etc DID have a discretion to treat patients who would ordinarily have to pay.  TheSecretary of State supported a declaration that they could treat people in immediate need who could not pay, and supported other cases (R v Hammersmith Trust ex parte Reffell) which stated that they could treat:a. where refusal to treat was going to lead inevitably later to an emergency that the hospital would have to treat free of charge andb. on humanitarian grounds.
7. However, the exact nature of this would have to wait for guidance from the Secretary of State, but in the meantime the Court did not disturb, but did criticise, the parts of the existing guidance (para 3.1) which allows treatment for those in need of:

A. immediately necessary care because:

1. the condition is life threatening, or
2. because if treatment is not immediately given it will become life threatening, or
3. because serious damage will be caused by any delay

The treatment in those cases is supposed to be limited to that which is clinically necessary to enable the patient to return to their country.  The court pointed out that guidance did not say what investigation should be made as to when a patient would be likely to return (para 74).

B. urgent treatment which is not immediately necessary but cannot wait until the patient returns home.(para 75):
In these cases the guidance says a deposit should be taken but does not state what should happen if the patient cannot pay a deposit or who cannot return home before the treatment becomes necessary.

C. Routine elective treatment
The guidance says this can wait until the patient returns home, but does not give guidance as to what should happen in respect of those who have no prospect of returning within a medically acceptable time.  The Court said the Guidance was not clear enough here as well.

Conclusion

The court case extinguishes the near absolute right to treatment for failed asylum seekers that followed the decision in the High Court.  Hospitals are now entitled to refuse treatment but will need to make decisions on the matters that concern their discretion and in particular are unclear because the guidance is unclear.  This leaves room for negotiation with Hospital trusts as to criteria that could be followed in the interim.