I spent this week scrolling through my news feed, watching war crimes committed by Russia in Ukraine. A hospital was just bombed. I sent more money to humanitarian organisations including Doctors of the World. Whilst it is easy to feel powerless in the face of terrible world events, there are ways we can stand in solidarity. And whilst our minds are focused on people fleeing conflict, it is a good time to consider how refugees are treated if they reach the UK and need healthcare. I was therefore pleased to be part of a panel this week, to launch the Southwark Patients not Passports campaign.
It included a screening of NHS Borderlands, an investigative documentary into the human cost of charging migrants for accessing the NHS, made by Bare Life Films. It features Angela who, after fleeing Zimbabwe in fear for her life, sought asylum in the UK where she has lived with her husband for 20 years. Following a vital hysterectomy operation Angela was – without warning – issued a bill for £8,000 by the NHS. Angela is not allowed to work and has no source of income and this bill jeopardizes her life in the UK forever. There are many stories like Angela’s, most untold and undocumented. This film shows how healthcare workers and campaigners are fighting alongside Angela to keep the border out of the NHS.
Following the film I was one of several speakers; Kam Adiseshiah, Senior Immigration Solicitor at Southwark Law Centre; Angela, whose story is told in the film; and Jan O’Malley, Lambeth and Southwark Patients Not Passports founder. I gave a brief overview of the MedAct report ‘Patients not Passports – challenging healthcare charging in the NHS‘. Below is a summary of some of the key points.
The NHS was founded on the principles that care is available to all on a non-discriminatory basis, based on need, not ability to pay. Yet the government prioritises certain lives over others, and through hostile environment policies, violates healthcare workers’ legal and ethical duty of confidentiality to patients, dismantling the system of universal healthcare in the UK.
A brief history of NHS charging
The NHS was founded in 1948 on the principle of care free to all at the point of need. In fact these principles started to be eroded quickly with The NHS Act of 1949 including provision that allowed for the Secretary of State to charge for NHS services people who were not ‘ordinarily resident’ in Great Britain, a provision that remained unchanged in both the 1977 and 2006 National Health Services Acts. Initially, although the provision for charging existed, no attempts were made to charge those seeking NHS care.
In 1982 the introduction of The National Health Service (Charges to Overseas Visitors) Regulations marked a new era in attempts to charge people to use the NHS. But it was during the 2010s that this escalated. The 2014 Immigration Act modified the definition of ‘ordinary residence’ to make it reliant on the person having ‘indefinite leave to remain‘ in the UK. This change excluded vast numbers of people from NHS care and allowed for the application of an Immigration Health Surcharge to those people applying for temporary visas (£624 a year, £470 a year for children and students). It excluded students, those on work visas, and those on family re-union visas from free NHS care. The 2015 regulations placed a requirement on NHS Trusts to identify and charge people not eligible for free NHS care; and increased the cost that people could be charged to 150% of the national tariff. The 2017 regulations placed a statutory duty on NHS Trusts to charge people upfront for treatment if they were thought to be ineligible for free NHS care and mandated that NHS Trusts record people’s chargeable status on their patient record. The 2017 regulations extended charging beyond secondary care and into areas of community care including: termination of pregnancy, community mental health services, and some district nursing services. The Department of Health and Social Care had originally planned to extend charges to A&E and some GP services by 2016 but have delayed this process. The intention to extend charging remains and the 2017 regulations should be understood in the context of Government plans to extend charging to all NHS services.
This increase in measures to charge ‘overseas visitors’ has also included measures to improve ‘detection’ of people ineligible for free NHS care such as an expansion in the number of overseas managers, incentives for Trusts to identify and charge ineligible users and sanctions if they do not.
There are exemptions from charging for certain groups of people. This includes: victims of trafficking or modern day slavery; victims of violence: domestic violence, sexual violence, torture and FGM; children under the care of a Local Authority; people detained under the Mental Health Act; asylum-seekers; and refugees.
There are also exemptions for certain medical conditions, including a long list of infectious diseases such as HIV, TB, cholera, meningicoccal meningitis and septicaemia, leprosy, malaria, measles, flu, SARS and viral hepatitis.
The problem with these exemptions is that people do not arrive in a healthcare settings pre-labelled with their status or condition. A significant level of trust is required between patient and clinician for them to feel able to disclose a history of FGM, torture or trafficking. In addition, someone with a cough and weight loss worried that they may have Tuberculosis (and therefore exempt), could have TB excluded and be diagnosed with lung cancer. Lung cancer is not on the list of exemptions, and the patient would then be chargable for all tests and treatments. This could lead to someone being given the news of a devastating life threatening condition, and a bill for thousands of pounds with it, having fled violence and with no source of income.
Care that can’t wait
Despite the fact that Trusts have a statutory duty to charge upfront, emergency care can be provided without first obtaining payment. Specifically, immediately necessary treatment can be given:
- to save their life
- to prevent a condition from becoming immediately life-threatening
- to prevent permanent serious damage from occurring
Urgent treatment can be given if clinicians state that the treatment is not immediately necessaty but cannot wait until the person can be reasonably expected to leave the UK. Clinicians need to know when a patient can reasonably be expected to return home in order to decide if their need for NHS community or secondary care is urgent, or if it can safely await their return. Guidance suggests assuming 6 months if this is unclear.
It is vital that healthcare workers understand these rules, in order to ensure timely access to treatment for patients under their care. But there is no education programme for medical professionals covering the regulations. My expeirence is that healthcare workers are unaware of the rules, and therefore disempowered. This leaves patients at the mercy of bureaucracy; their only information source overseas officers, who are working in the best interest of the Treasury, not the patient or public health.
The Hostile Environment
It is important not to view the NHS charging regulations in isolation. They are part of a suite of policies which are designed to make it harder for all migrants to access work, housing, education, services, and healthcare, or live without the fear of deportation.
Too often headlines reduce migrants to a crisis of costs and numbers, rendering their humanity dispensable. This dangerously obscures the violent racism these policies espouse to those who do not experience it. Telling the stories of real people affected, such as Angela, is essential to show these policies for what they really are: racist, dehumanising and deadly.
Healthcare spaces should be sanctuaries, providing safety, protection and care. When the hostile environment enters the NHS it destroys safety and trust. By requiring healthcare organisations to ID check patients and share information with the Home Office, ‘everyday bordering’ as part of the Hostile Environment has turned what was an external, territorial border into an internal border. Healthcare workers are forced to become border guards.
All maternity treatment is deemed to be immediately necessary and as such should never be withheld as a result of the person’s ability to pay. However, as a result of the charging policy many women are deterred from seeking care. In addition, the confusing way charges are communicated by Trusts often leads women to withdraw from care. Maternity Action surveyed women that had been impacted by charging for maternity care and found that none of them had been given any information about support they might access to manage the debt they would incur. As documented in the report ‘What Price Safe Motherhood?‘ it does not matter whether charges are demanded upfront or pursed after care is given, for many women the prospect of being charged at all is enough to stop them accessing maternity services. A futher report ‘Maternal Health: exploring the lived experiences of pregnant women seeking asylum,’ documents: stress and poor nutrition affecting the growth of unborn babies and subsequent difficulties breastfeeding; swelling and skin conditions from having to wash clothes by hand; pelvic pain from climbing multiple flights of stairs and health impacts such as rashes and asthma in young children resulting from poor housing conditions, including damp.
Researchers surveyed service users at Doctors of the World’s London clinic and found that around 80% of undocumented migrants reported fear of arrest as a deterrent from seeking care, and around 30% of asylum seekers stated that having been denied healthcare previously was a barrier to accessing further care (The lived experiences of access to healthcare for people seeking and refused asylum 2018). A later study (Delays and destitution: an audit of Doctors of the World’s Hospital Access Project 2018-20) found that those who were facing charges for secondary care faced an average delay to treatment of 37 weeks, with this delay remaining essentially the same (36 weeks) for those people who needed ‘urgent’ or ‘immediately necessary’ care.
Myths and legends
The Cost Recovery Programme of 2014 was introduced to “increase the revenues available to the NHS by introducing more effective practices to recover costs from visitors and migrants ineligible for free healthcare“. In documents published before implementation it was recognised that most chargeable users of NHS care have no means to pay.
Cost recovery is also compromised by the fact that undocumented migrants make up the largest group of chargeable overseas visitors – approx. 500,000, many of whom have few resources to pay charges incurred.Sustaining services, ensuring fairness: a consultation on migrant access and financial
contribution to NHS provision in England. 2013
Health tourism is cited in this document and others as a reason to clamp down on ‘free-riding’. So-called ‘health tourism’, where people travel to the UK with the express purpose of accessing free NHS care, is a political concept that is almost ubiquitous in the media and is often pointed to as a major drain on NHS resources. However, in reality there is very little evidence to substantiate the existence of the phenomenon, with some studies even suggesting that migrants are more likely to return to their home country to access treatment when they need it. On the other hand, there is robust evidence to show that on the whole migrant populations are healthier and use health resources less than host populations.
The Government’s own estimate puts the cost of deliberate misuse of the NHS by overseas visitors at £300 million at most, equating to roughly 0.3% of the NHS budget. This figure does not represent what could be considered recoverable through charging people for care as it includes the use of primary care and A&E services and does not take into account an assessment of the likelihood of the people charged being able to pay the bill. The Government itself admits that even if it did extend charging to all services it would still be unlikely to recoup the total costs of this supposed 0.3%.
This estimate also obscures the cost of deterring people from care that arises from the policy, and the cost of implementing and administering ID checks and invoicing patients. Emergency care is more expensive care. The people most likely to be charged for care are those who are least able to pay, many of whom are long-term residents who have been unable to regularise their immigration status. Three quarters of Trusts are now using private firms to pursue patients suggesting that not only are Trusts failing to use their discretion to write off debts owed by people that have no means to pay; but also that private companies are now profiting from exclusionary Hostile Environment policies. In 2019 Health Secretary Matt Hancock provided an additional £1 million funding to NHS Trusts to increase the number of ‘cost-recovery experts’ in an attempt to address the administrative burden on NHS Trusts.
The financial impact of restricting care has been investigated by three recent studies across Europe that found providing universal access to preventative healthcare, including access for undocumented migrants, is more cost effective than restricting access to people with certain migration statuses thus forcing them to rely on emergency care.
Research at the Doctors of the World clinic concluded that delaying seeking care until emergency treatment is required is incentivised if it is the only service that is free to access. Not only is this behaviour risky for individual health but it also puts additional pressure on the health system through increasing demand on an already stretched emergency service, shifting utilisation away from cheaper preventative care, to expensive emergency treatment.
A threat to public health
A system in which people are too frightened to seek care because of the threat of charging and data sharing, is a threat to public health. Evidence shows that since the introduction of the Cost Recovery Programme in 2014, there has been a significant delay for Tuberculosis (TB) treatment among non-UK born patients. Strategies to control TB centre around three key principles: early diagnosis; effective treatment; and preventative interventions for those at high risk. The non-specific nature of symptoms associated with TB, such as fevers and weight loss, often mean that diagnosis people present more than once to multiple healthcare providers before diagnosis. The window of time that elapses between symptom onset and treatment is critical. If the time-to-diagnosis increases, the individual concerned is exposed to higher risk of longterm damage and death, and, for infectious cases, the wider public is exposed to the risk of disease transmission.
The same is true of SARS-CoV-2, the cause of the current COVID19 pandemic. ‘Migrants’ Access to Healthcare During the Coronavirus Crisis’ highlights numerous cases of migrants being denied healthcare outright; or refusing to seek care due ot fear of governmentpolicies or racial profiling. This is a stark example of the fact that none of us are safe until all of us are safe.
Patient confidentiality is a core obligation for all healthcare professionals. The General Medical Council (GMC) makes it clear that ‘patients have a right to expect that their personal information will be held in confidence by their doctors’ (GMC, 2013). In April 2017, the GMC re-emphasised that ‘[a]sking for a patient’s consent to disclose information shows respect, and is part of good communication …’ (GMC, 2017). Breaching confidentiality is accepted in certain circumstances. The GMC states that, for a disclosure to take place, it must be clear that ‘the benefits to an individual or to society of the disclosure must outweigh both the patient’s and the public interest in keeping the information confidential’.
The Hostile Environment and the demand that healthcare workers breach confidentiality to share data on patients with the Home Office, knowing that this risks negatively affecting their health and possibly threatening theor life, presents a significant challenge to the ethical frameworks that underpin the work of healthcare practitioners. Policies that require staff to check a person’s immigration status; the datasharing systems that send patient information to the Home Office; the decisions made about what care a person can afford, or how much pain they can bear before being expected to leave the UK; make healthcare workers complicit in a system that causes harm to patients by default. These policies could change the doctor–patient relationship potentially irreparably, creating even greater harm.
The concept of moral injury as applied to healthcare workers has gained attention in recent years, particularly during the COVID-19 pandemic.
Moral injury can occur when someone engages in, fails to prevent, or witnesses acts that conflict with their values or beliefs and when they experience betrayal by trusted others especially when this is perceived as avoidable, or they are powerless to change it.Technical Advisory Group: moral injury in health care workers during the COVID-19 pandemic. Gov.wales
There has been inadequate research on the impact of the hostile environment policies on healthcare workers, but for many healthcare workers, bringing borders into the NHS directly conflicts with their values and beliefs. The NHS is a trusted institition, and destroying that trust by opening the doors to the Home Office is damaging. Healthcare workers often feel powerless in the face of statutory obligations, the power of the immigration system and the threat of censure or legal action.
Power in numbers
We are not powerless.
There is a strong history of healthcare workers fighting against racist charging policies in healthcare, wich is documented in the New Economics Foundation report ‘Patients not passports: learning from the international struggle for universal healthcare’ . In Spain a mass movement of healthcare workers formed a campaign entitled Yo Sí Sanidad Universal. They organised conscientious objection from healthcare workers, created schemes to support people to access care, and created a national case study reporting mechanism to track the impacts of the RDL 16/2012 charging policy. Alongside the grassroots mobilisation from Yo Sí Sanidad Universal, a network of civil society organisations collectively known as REDER worked to challenge the policy by monitoring the harm caused and by challenging the human rights impact of the policy through the Committee on Economic and Social Rights (CESR). The CESR found that the policy contravened Spain’s obligations to Article 12, citing that denying healthcare on the basis of migration status represented unacceptable discrimination. These campaigns eventually led to the Spanish Government repealing RDL 16/2012 and restoring undocumented migrants’ right to access healthcare.
No Pass Laws to Health, formed as a coalition of law centres and migrant organisations in North London and sought to document and resist passport checks and charges introduced in the UK in 1981. The campaign took their name – No Pass Laws to Health – from the pass law regime of Apartheid South Africa, a system of governance that has its roots in British colonialism. As the campaign continually argued, the NHS charges for overseas visitors were unlikely to generate significant revenue. And unlike todays hostile envionment, the charges were not a statutory duty. Burdened with the signifcant costs of administering the passport checks and charges, along with continued resistance from unions, healthcare workers, and the affected patients, by 1984 many hospitals had dropped the charging regime having made a fianancial loss.
Today, there is a growing movement of people opposed to the Hostile Environment and NHS migrant charging. This takes the form of campaigns around individuals such as Angela featured in the documentary film ‘NHS Borderlands’, and Simba, Simba faces a bill of £100,000 following a stroke that may have been preventable had he been able to access preventative NHS care. The Justice for Simba campaign includes local individuals, Medact Sheffield, Docs Not Cops Sheffield, South Yorkshire Migration and Asylum Action Group (SYMAAG), Sheffield – Student Action for Refugees – STAR, and These Walls Must Fall. Albert Thompson’s story was widely reported, when his cancer care was delayed after being presented with a bill for £54000. Thompson (also known as Sylvester) had lived and worked in London for 44 years but had never regularised his status, being part of the Windrush generation. Campaigning led to him receiving NHS treatment, and he was later given indefinite leave to remain.
The movement also takes the form of Patients not Passport groups, working locally and nationally, supported by organisations such as Docs not Cops, MedAct and Migrants Organise.
Campaigners have successfully lobbied medical unions and Royal Colleges to speak out and demand an end to policies which damage the health of our communities.
- The BMA has called for an end to migrant charging and a clear separation of the roles of the healthcare sector and the Home Office.
- The Royal College of Paediatrics and Child Health has published a position statement and hosts a reporting tool, to facilitate ongoing data collection on the impacts of NHS charging, and wider immigration policy, on child health.
- The Royal College of Physicians, Royal College of Paediatrics and Child Health (RCPCH), Royal College of Obstetricians and Gynaecologists (RCOG) and the Faculty of Public Health (FPH) have called on the Department of Health and Social Care (DHSC) to suspend the National Health Service (Charges to Overseas Visitors) Regulations 2015 and the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017, pending a full independent review of their impact on individual and public healt
A decade on from the start of the Hostile Environment; a decade of injustice; racism; xenophobia; and irreparable harm to some of the most vulnerable and valuable members of our communities, and it is time to stand together and say no. We must demand the removal of all migrant charging polcies and the reinstatement of universal healthcare.
I am not a border guard, I am a doctor.