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Submission from CMF to the Department of Health on the Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services

Published: 13th August 2004

Introduction

Christian Medical Fellowship is interdenominational and has as members more than 4,500 British doctors who are Christians and who desire their professional and personal lives to be governed by the Christian faith as revealed in the Bible. We have members in all branches of the profession, and through the International Christian Medical and Dental Association are linked with like-minded colleagues in well over 100 other countries.

We regularly make submissions on ethical matters to Governmental and other bodies and are grateful for this opportunity to comment on this consultation.

Our response is divided into some general comments and then specific answers to individual consultation questions. We are willing to make verbal submissions to the Department of Health if invited.

General comments

Relevant Christian principles

The Bible makes it clear that God is sovereign over all peoples; his plans and purposes will prevail. He is compassionate and just, concerned for the poor and vulnerable from every nation. The Bible acknowledges the detrimental impact that being forced to leave one's own country has on people. The Old Testament consistently affirms that God's people have a duty towards the foreigners in their midst. The strangers in our midst should be treated with the same respect, care and dignity as everybody else.

As Christians we believe that we have a particular responsibility, and privilege, to care for those in our country who have fled their homeland. These people have often faced particularly adverse circumstances that have forced them into this situation. We believe that the current proposals unjustly and unnecessarily marginalise and place further burdens on an already suffering group of people. We firmly reject the proposals for these and other reasons, which will be outlined below.

The doctors duty of care

The first line of the GMC's Duties of a Doctor is 'make the care of your patient your first concern'.[1] This is an important statement, and in accord with the Hippocratic Oath that, 'I will apply measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.' The 1948 Declaration of Geneva Physicians Oath reiterates, 'I will practice my profession with conscience and dignity; the health of my patient will be my first consideration… And I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.'

It is fundamental that the doctor's prime consideration is the patient sitting before him, in need of his attention. One of the strengths of the NHS is that it allows doctors the freedom to exercise this duty regardless of the patient's financial abilities. We hold particular concern over the phrase in section 2.4 regarding a PCT's discretion over accepting patients that, 'The practice would thus have no discretion to register ineligible people as patients…' It is unjust to bind doctors' hands in this way. Furthermore, it is not the responsibility, nor should it be the concern of doctors to be checking a patient's 'eligibility'. This will only create further confusion, work, and bureaucracy for doctors' surgeries.

Ethical conflicts will arise when clinicians are expected – as the consultation implies – to determine who is eligible to be treated by them. A doctor who intentionally withholds treatment in order to check a patient's eligibility would be in breach of the Duties of a Doctor and thus liable to a charge of serious professional misconduct by the GMC.

The BMA has queried why doctors should be policing this system, and we reiterate that concern.

It is the government's responsibility to deal with failed asylum seekers and to generate the necessary routes for deportation where that is deemed appropriate, rather than trying to force them out by making their lives here as unhappy and unhealthy as possible in the interim.

Who are the 'overseas visitors'?

The distinction between overseas visitors and failed asylum seekers needs to be clearly established.

The premise that health tourism is resulting in a significant drain on the country's resources may well be false. No clear evidence has been presented that this is the case.[2] Even if occasional 'health tourism' does exist, there is a big difference between those who travel to the UK specifically to receive medical treatment, and those who find themselves here for other reasons and in need of medical care. Furthermore, the pretext of health tourism has not been found to be relevant to asylum seekers decision-making processes in coming to the UK.[3]

If there is clear evidence that significant proportions of wealthy people are coming to the UK to obtain free treatment, differentiation must be made between recovering charges from those who can pay and allowing free access to failed asylum seekers who cannot. It must also be ensured that the process of recovering these costs will be financially worthwhile (see 'Financial concerns?' below).

We sincerely hope that the pretext of 'health tourism' is not being used as a tool to drive other political agendas, such as the introduction of identity cards. Additionally, the statement that the NHS is only a 'national' health service could be questioned given that we already actively recruit health workers from a number of other countries, and UK nationals are increasingly travelling abroad themselves to access more affordable treatment which can't be provided quickly/cheaply enough for them here.[4] Our health service is part of an increasingly globalised health economy.

The position of failed asylum seekers

Our primary concern however, is that failed asylum seekers will be excluded from free NHS treatment under these proposals. Our response is therefore focused on this particular group of persons. We believe firstly that this group will be unfairly and unjustly treated under these proposals, and secondly that there will be a significant negative impact on public health.

Asylum seekers' primary reason for coming to the UK is to seek refuge from difficult situations in their home countries. Of 79,385 appeals received by the Immigration Appeals Tribunal in 2003/4 the initial decision was overturned in 21% of cases. However, that still leaves more than 60,000 people whose asylum applications failed last year. Only 17,135 people were removed from the UK by the Immigration Nationality Directorate of the Home Office (IND) in 2003/4 – leaving over 40,000 failed asylum seekers still resident in this country. This number will continue to grow, and with the policy of dispersal, this will be a nation-wide problem.

An adjudicator may accept an asylum seeker's account of previous torture but refuse their claim for other reasons. Therefore, there is no reason to believe that failed asylum seekers have less need for primary health care, or are less vulnerable than those whose claims are accepted. Failed asylum seekers may still be victims of inhumane treatment at the hands of their own country. We should be careful not to inflict further suffering on top of this.

A negative asylum decision has far reaching consequences on a person's health. Asylum seekers frequently have a history of depression, anxiety and other psychological difficulties, which can intensify when their claim is refused.[5] Suicidal thoughts often increase, and there is a greater need for ongoing support, observation and treatment to prevent unnecessary deaths. Limiting access to primary care could increase risks of self-harm and suicide among failed asylum seekers.

Asylum seekers may be resident in this country for a number of years before their asylum claim is finally determined. To all intents and purposes they are 'ordinarily resident' throughout this time and are still living in the UK once the process is over - until they either leave voluntarily or are removed.

In R v Barnet LBC 1983,[6] which is the leading case in this area, the House of Lords held that ''ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.' The residence has to be lawful (eg. not in breach of the immigration laws). Temporary absences of short duration do not normally discontinue ordinary residence and it is possible to be ordinarily resident in two countries at the same time. It is not necessary to determine what the long term plans or intentions of a person are. The concept of 'ordinary residence' is different from 'habitual residence' that is used to determine a person's entitlement to certain benefits. Although this case was concerned with the meaning of 'ordinarily resident' in relation to the Education Acts it is generally recognised as having a wider application, for example in relation to immigration and nationality legislation. We would therefore contend that by this definition, failed asylum seekers are 'ordinarily resident' in the UK, and that it is highly questionable that they should be included in the scope of this consultation in the first place.

Failed asylum seekers are already not entitled to housing, benefits, or work. The House Of Commons Home Affairs Committee report on Asylum Removals[7] found it 'absurd to refuse leave to remain to people who, for whatever reason cannot be removed. We recommend that such people be granted a temporary status which allows them to support themselves.' However, refusal is precisely what happens: large numbers of people from countries where there is anarchy, war or systematic human rights abuses are living in the UK without support or official status.

The denial of primary health care at this point does not appear to serve anyone's interests, as what is needed at this point is an efficient immigration removals system rather than the intentional destitution of persons by the state.

Children

The proposals do not indicate if they apply to children. If they do then denial of opportunities for developmental screening, immunisations and routine childhood healthcare is likely to be in direct contravention to the Children's Act 1989 and the UN Convention on The Rights of The Child.

Financial concerns?

John Reid estimated the cost to the NHS of 'health tourism' at £200 million a year in a 2003 announcement. Given that the annual NHS budget is £66,500 million, this is only 0.3% of the total budget. Does this really equate to 'significant abuse'?

Based on the 2001 population statistics for England of 49,138,831, this amounts to a cost of c£4 per citizen per year – little more than a pint of beer for those of us living in the capital, less than a trip to the cinema, less than an adult daily travel card for the London Underground.

If this consultation is merely about saving money, it should be noted that it could create more problems than it solves through the implementation process and running costs. Any perceived cost savings must be offset against the additional bureaucracy of introducing and processing charging. New charges are invariably complicated, with many eligible exceptions and there is the cost of administration. They will act as a deterrent for those with genuine illness, and patients who cannot access primary care will end up in Accident and Emergency Departments at greater cost to the NHS.

On the other hand, if the consultation is about excluding specific people groups from healthcare as a knee-jerk response to public prejudice, media spin and misinformed opinions, then it will achieve that aim at cost and disadvantage to the public – both financially and health wise. It will also be an inhumane response towards needy people who have thrown themselves on our mercy.

Furthermore, it is important that the size of the 'problem' is put into perspective, something that is frequently missing from often biased media reporting. Last year's 60,000 failed asylum seekers only make up ~0.12% of the UK population (based on the 2001 census figure).

One of the founding principles of the NHS is that there should be no payment at the point of access (ie. primary care services). This is a principle we should preserve at all costs.

Responses to specific questions raised in the document

Who will be eligible for free NHS primary medical services?

3.1 - Do you agree that strengthening the rules around access to free NHS primary medical services for overseas visitors, to better match those for hospital treatment will bring clarity to both the overseas visitor and frontline staff working in practices and PCTs?

• No

3.2 - If not, please specify your reasons.

• The definition of 'immediately necessary treatment' is open to interpretation. For example does prophylactic bronchodilator therapy for asthma count as 'immediately necessary'? Some might deem not. However, withholding such treatments will result in deterioration of the asthma until the patient requires emergency treatment.
• There are many prophylactic treatments provided at the primary care level, preventative care being the core of primary care. This provision is not only best for patients, but is also more cost effective than leaving illnesses to develop until emergency care is necessary.
• Since failed asylum seekers will frequently remain resident in the UK, it would be preferable to enable their continued access to preventative medicine both for their own health and for NHS costs, as well as for the wider benefit of public health (see response to 3.18 below).

Primary medical services for visitors ineligible for free NHS care

3.3 - Do you agree that a system of charging should be introduced?

• No.

3.5 - If you have answered no, what would be your reasons?

• Failed asylum seekers are not entitled to work, housing or benefits. They are therefore unlikely to have the means to pay for health care. How then are such costs to be recovered?
• Furthermore, if non-payment of bills results in a custodial sentence, the asylum seeker would then become fully exempt from any further charges!
• This is where a clear distinction between the true 'health tourists' and vulnerable people groups such as failed asylum seekers is necessary – between those who have come here specifically to access free treatment and may be able to pay, and those who are here because of other circumstances and have no means to pay or return to their own country for treatment.
• However, since the evidence regarding health tourists is unclear, it may be best to maintain a 'benefit of the doubt' attitude, at least at the initial point of contact.
• As previously outlined, the doctor's duty is to consider the health of his patient, and questions of payment should not be brought into the consultation process. We would re-iterate the principle of no payment at the point of access.
• One of our key concerns with these proposals is that denial of access to free primary care for failed asylum seekers would be a de facto denial of access to primary care, period.

How would the proposed new scheme operate?

3.6 - Should the onus of proving eligibility for free NHS primary medical services be the responsibility of the overseas visitor?

• No.

3.7 - If not, please specify your reasons.

• Paragraph 2.22 is incorrect to claim that a doctor would not be drawn into discussions about eligibility – especially in the area of general practice. Certain categories of treatment will remain free for everyone attending a general practice. Thus, a clinically trained person will have to make a decision regarding the eligibility of patient's for treatment. (Deciding which category the patient falls into, and whether treatment is 'immediately necessary'). Clinical staff will therefore inevitably be drawn into arguments about entitlement.
• Placing the onus of proof onto an already disadvantaged group is likely to result in widespread discrimination. The likely result is that some practices will refuse to treat any asylum seeker regardless of their 'eligibility'.
• Asylum seekers already face multiple barriers to accessing health care. This has been acknowledged by the Department of Health through their funding of dedicated asylum seeker primary care services across the country. Requiring asylum seekers to prove their entitlement to primary health care will accentuate problems with access.
• Furthermore, it will also create a climate of suspicion. This is contrary to the relationship of trust that needs to be established between patient and clinician for effective health care.

3.8 - What practical difficulties do you envisage that practices would have in operating the proposals outlined in this document?

• To avoid accusations of racial discrimination, proof of eligibility will need to be asked on every visit from every patient - otherwise it is likely such requests to prove eligibility will be targeted solely at those who are non-white, non English speakers - and hence applied in a racially discriminatory fashion.
• There is considerable ambiguity around the point at which these proposals would apply to failed asylum seekers - and what exactly constitutes such a 'failure.' Where new evidence emerges, or the political situation deteriorates in a particular country, a person is entitled to mount a fresh claim. Due to the substantial delays by the Secretary of State in taking the decision whether to treat the further representations as a fresh claim, and then the further delay caused by lengthy judicial review proceedings against any refusal by the Secretary of State to treat the representations as a fresh claim, a failed asylum seeker may take considerable time to reinstate his entitlement to free treatment and support. Are practices to be expected to grasp the finer nuances of this when deciding if a person is eligible for free primary care?
• Proof will go out of date. Where an asylum seeker registers with a GP while still entitled to free NHS care, they will retain their documentation even after their final asylum decision has been reached. A periodic check on documentation would therefore be necessary to ensure practices are abiding by the law - and not treating failed asylum seekers. Such checks will be extremely time consuming to perform, needing additional training for GP reception / administration staff, and substantial amounts of time to operate on a daily basis. The consultation document does not indicate whether additional funds will be available for such work.
• Denying access to primary care may increase the pressure on Accident and Emergency departments as 1) people will go to A&E for minor problems that could have been dealt with by a general practitioner and 2) people will present at A&E with a serious or advanced illness that could have been treated earlier and more effectively at the primary care level if the patient had access a GP.

3.9 - What other measures do you think the Government should consider which would reduce the instances whereby persons who are not ordinarily resident in this country access and receive free NHS primary medical services?

• The assumption that significant health tourism exists needs to be proved.

3.10 - Would you agree that a form of self-certification would help reduce the number of people who receive free NHS primary medical services to which they may not be legitimately entitled?

• No.

3.11 - If not, please specify your reasons.

• The papers referred to in section 2.25 are proof that a patient was at one point entitled to care - but do nothing to prove ongoing entitlement.

3.12 - Should members of EEA countries or 'insured' Swiss residents visiting the UK be required to carry a form E111 completed by their home country, or from 1 June 2004, the European Health Insurance Card?

• No strong views.

3.13 - If not, please specify your reasons.

How would eligibility be confirmed?

3.14 Are there any other options that the Government should consider for checking a person's eligibility, and, if so, what are they?

• No strong views.

Existing overseas visitors who currently receive free primary medical services

3.15 - Do you agree with this approach to existing overseas visitors who currently receive free services?

• No.

3.16 - If not, please specify your reasons.

• Where a practice has an existing arrangement with a patient, there is an agreement and a relationship of trust that should not be betrayed lightly.
• The proposals will apparently discriminate in the future on the grounds of a current registration at a particular general practice. This goes against the heart of our health care system – to treat everybody the same.
• The place where primary medical services are given is secondary to the place of residence, and not vice versa. If patients will lose free NHS care when they report a new address, they may be tempted not to report their latest move. The proposals may therefore encourage patients to travel long distances, for example across London, to their old practice even after moving away. This would result in secrecy about a new address outside the practice area and could lead to future confusion if the patient requires hospital referral or emergency treatment.

3.17 - Are there any alternative options for handling existing overseas visitors who currently receive free NHS primary medical services that the Government could consider, and, if so, what are they?

• Please refer to 3.16, above. The 'alternative option' we advocate is to maintain the current system of no payment at the point of access, and to not discriminate between failed asylum seekers and the rest of the UK population.
• Whether it is possible to differentiate between failed asylum seekers and 'health tourists' and between those who can and cannot pay may or may not be an issue worth addressing (see point 3.5 and 'Financial concerns?' under our General Comments section).
• We reiterate that it is the Government's responsibility to deal with failed asylum seekers and to generate the necessary routes for deportation where that is deemed appropriate. While they remain resident in England they should have access to free primary care services.

Public Health

3.18 - Are there any primary medical services which you consider should continue to be freely available on public health grounds?

• All primary care services should be available to all asylum seekers - regardless of exact immigration status.
• Tuberculosis infection: Most TB is not detected by screening at a TB/chest clinic, but through clinical suspicion in primary care when a patient with risk factors presents with a chronic cough, weight loss or other warning symptoms. GPs are best placed to notice changes in an individual registered with them, as they will have records on weight and previous medical history. If failed asylum seekers are denied access to primary care, the chance to detect such conditions early will be lost. This will 1) increase public exposure to individuals with infectious TB and 2) mean that the TB will only be detected in the later stages when it required emergency treatment. Full access to primary care serves a far more effective public health function than specialist treatment facilities, is better for the patient, and is likely to be more cost effective.
• The health of asylum seekers generally deteriorates with the refusal of their claim. Any latent TB is more likely to reactivate with the destitution and poor health accompanying failure. Under the proposals, failed asylum seekers will lose access to primary care services at the very time they are most vulnerable to infection.
• HIV and tuberculosis: These frequently exist as co-infections. Denial of highly active antiretroviral therapy for HIV (HAART) to failed asylum seekers may result in rapid decline in their immune status. Reactivation of latent tuberculosis is therefore likely. Co-infected patients have far larger numbers of tubercule bacilli disseminated throughout their bodies and are therefore more likely to be infectious and constitute a public health risk.
• Although HAART is expensive, the cost of an ITU admission for an AIDS patient with tuberculous meningitis is several orders of magnitude higher. There are also considerable public health risks.
• HIV infection: Dispersal of asylum seekers has increased the rate of new HIV infection in major cities across the UK.[8] Denial of HIV treatment to failed asylum seekers increases the risk of further spread of HIV. This may be exacerbated by the fact that enforced destitution of failed asylum seekers makes them vulnerable to sexual exploitation.
• There is strong evidence that providing anti-retroviral therapy is an effective way of curbing the spread of HIV.[9] Diagnosis and counselling is important as knowledge of HIV status can be beneficial and the individual can be encouraged to be sexually responsible to prevent others' being infected. However, anti-retroviral treatment also helps by reducing the individual's viral load and makes them less infectious.
• Where a patient has previously been on HIV treatment but is subsequently denied access, there is a considerable risk of their developing resistant strains of HIV, decreasing the options for future therapy, and meaning that they are at risk of infecting others with resistant strains of the virus. There is real concern that the current process of dispersal of asylum seekers is leading to interruption of treatment and may exacerbate the risks of resistance. Denial of access to free primary healthcare will only add to this problem.[10]
• The National Service Framework for Mental Health strongly encourages prevention and early diagnosis of mental illness. Denial of access to primary health care contravenes this approach.

Conclusion

It is not in the interests of individuals, the general public or primary health professionals to create a marginalised semi-illegal group of people with no or limited access to primary health care services. Whilst such persons remain in UK territory they should be able to freely access good primary care.

This response was written with input from a number of our members and
associated colleagues with a particular interest in this area of medical practice

For further information:

Steven Fouch (CMF Head of Communications) 020 7234 9668

Media Enquiries:

Alistair Thompson on 07970 162 225

About CMF:

Christian Medical Fellowship (CMF) was founded in 1949 and is an interdenominational organisation with over 5,000 doctors, 900medical and nursing students and 300 nurses and midwives as members in all branches of medicine, nursing and midwifery. A registered charity, it is linked to over 100 similar bodies in other countries throughout the world.

CMF exists to unite Christian healthcare professionals to pursue the highest ethical standards in Christian and professional life and to increase faith in Christ and acceptance of his ethical teaching.