LIBERTY has welcomed Monday’s (12th November), ‘huge legal victory’ which protects NHS patients by pulling doctors out of the Tory government’s hostile environment policy.
A backroom deal allowing the Home Office to request patient data from the NHS to target people for deportation has been scrapped following a legal challenge.
The agreement gave the Home Office access to confidential patient information to aid immigration enforcement. It was written in secret before being published in January 2017.
Migrants’ Rights Network (MRN), represented by human rights organisation Liberty and Matrix Chambers, took legal action against the arrangement because it violated patient confidentiality, discriminated against non-British patients and left seriously unwell people fearful of seeking medical care.
Under the pressure of the legal challenge, the government announced in May 2018 that the data-sharing deal would be suspended – but remain in place. NHS Digital has now confirmed to the court it will completely withdraw the data-sharing deal made between itself, the Department of Health and the Home Office.
Rita Chadha, Interim Director of Migrants’ Rights Network, said: ‘On the 70th Anniversary of the NHS it is absolutely vital that our great British institutions uphold the best British values. ‘The right to privacy and the access to health care, is a right that many of us take for granted, sadly this has not been the case of health services for migrants.
‘We are delighted that the government is starting to dismantle the hostile environment by conceding that deterring people from accessing health services is cruel, inhumane and ultimately more costly.’ Lara ten Caten, Lawyer for Liberty, said: ‘This secret data-sharing deal undermined every principle our health service is built on, showing contempt for confidentiality and forcing people to choose between self-medicating and detention and possible deportation.
‘This stand-down by the government is a huge victory for everyone who believes we should be able to access healthcare safely – and particularly for doctors and nurses who had become complicit in the government’s hostile environment against their will.
‘This triumph shows that if we stand up to xenophobic policies, we can and will dismantle them.’
The memorandum of understanding between the Department of Health, NHS Digital and the Home Office was created in November 2016. It allowed the Home Office to request access to certain non-clinical information including patients’ last known address. It was drawn up in secret, without consulting NHS staff, medical organisations or the public – but came to prominence in January 2017 when raised by former head of NHS Digital, Kingsley Manning.
MRN and Liberty – instructing Guy Vassall-Adams QC, Sarah Hannett and Aidan Wills of Matrix Chambers who worked pro bono – started legal proceedings against the agreement with assistance from the National Aids Trust and Doctors of the World. They were granted permission to challenge it by the High Court in March 2018.
MRN argued the data-sharing arrangement:
• violated patients’ right to privacy under the Human Rights Act • did not pass the considerable public interest test required to breach the doctor-patient relationship
• left migrants too scared to access healthcare services they are entitled to
• discriminated against non-British patients.
Under pressure to withdraw the arrangement, the Government announced in May 2018 that it would be suspended, and would only apply to people who had committed serious crimes. The legal challenge was placed on hold pending amendments to the deal. On Friday 2nd November, NHS Digital confirmed the deal would be completely withdrawn.
• Doctors of the World opposes turning medical professionals into border guards.
Volunteers at Doctors of the World have seen many people deterred from going to the doctor because they are worried they can’t afford the charges or that they will be reported to – and deported by – the Home Office. People’s health conditions often get worse as a result, as research by Doctors of the World has shown.
One year ago, the Tory government introduced upfront NHS charges for certain ‘migrants’ as part of its ‘hostile environment’. Before that, bills were sent after people received medical care. Primary care (i.e. GP visits), visits to accident and emergency, and treatment for some infectious diseases remains free for all.
However, secondary care (such as being on a ward in the hospital or X-Rays), community care (including midwifery and abortion services), and care deemed ‘non-urgent’ is now liable for upfront costs for many non-UK citizens. The Windrush scandal has shown how ‘hostile environment’ policies – which are also present in housing, banking, employment and other areas – can devastate people’s lives.
Women have not been accessing antenatal, perinatal and postnatal care because they are scared of mounting up debts or being reported to the authorities, a recent Maternity Action report found. This means unborn babies and mothers are more at risk of poor outcomes, including death, low birth weight and the transmission of various diseases. Doctors of the World’s research at their London drop-in clinic reached similar conclusions.
Under current regulations, if people incur healthcare debts over £500 they can be reported to the Home Office after only two months of non-payment. Maternity Action found that women – many of whom had just given birth – were being sent threatening NHS bills and some had been chased by debt collection agencies. They also spoke to women who had been wrongly charged for their care.
NHS charges deter and delay vulnerable people from seeking the healthcare that they need, increasing harm to the individual and putting the health of the public at risk, as research conducted by post-graduate students at Kings College London at a Doctors of the World clinic has confirmed.
If people don’t go to the doctor when they need to it will increase the spread of infectious diseases, including drug resistant strains of tuberculosis (TB). Although treatment for many infectious diseases do not incur charges under the current system, many migrants do not know that this is the case.
Research in the European Journal of Public Health looking at 100 recent migrants diagnosed with tuberculosis, found that at least 69% of them did not know that TB treatment was free prior to their diagnosis. Another recent study in the journal Thorax looking over 2,000 tuberculosis cases showed a significant association between the roll out of NHS charging and worsening delays in diagnosis amongst the non-UK born population.
The Department of Health previously estimated that it was unclear whether the NHS charging system generated a net benefit or a net loss in an Internal Review of the Overseas Visitor Charging System. This is in large part due to the administrative cost of charging people and running an overseas charging team.
Quantifying the cost of healthcare visits requires a vast amount of administration time, taking doctors and nurses away from providing care. It requires a huge investment in time providing training in costing, determining who is eligible or not, then ongoing time allowed to cost medical interventions.
This needs to be supported by administration, managerial and accountancy staff to process bills and chase payments. Billing equipment is also needed as well as training, engineering and IT support to maintain the above.
When people don’t go to the doctor early on, many health conditions can also become much more difficult and costly to treat, especially if they worsen, become chronic and/or spread if infectious, resulting in more people turning up to A&E. For example, high blood pressure can be relatively cheap to treat and manage early on, but if left unchecked it places patients at risk of a number of conditions including cardiovascular disease.
Untreated high blood pressure may end up in A&E with a heart attack and require much costlier interventions – such as heart bypass surgery – with all the associated costs of stays in hospital. ‘Health tourism’ is currently a very small percentage of NHS costs – the upper end of the government’s rough estimates are around 0.3%.
When Aneurin Bevan – a former miner and Trade Union activist – led the creation of the NHS as Health Minister after the Second World War, he intentionally ensured that the healthcare system was universal for all, including visitors to the UK. He wanted to set a positive example, in part to ensure British people are treated when abroad, but also as a positive example of what can be done internationally.
This policy denies basic human rights to healthcare and asks healthcare workers and receptionists to determine whether someone can access healthcare – which is not the job they have trained for and distracts from what should be their priority: the care of the patient. Indeed, many NHS professionals are confused on how the new rules should be applied, with some incorrectly thinking that some patients are ineligible for life-saving medical care.
