Sandra Gidley (Romsey, Liberal Democrat)

I beg to move, That the clause be read a Second time.

This new clause is similar to the amendment tabled by my noble Friend Baroness Tonge in the other place. It seeks to end the situation where refused asylum seekers, including children, the elderly, victims of torture and other seriously ill and extremely vulnerable people, can be denied secondary health care unless they can pay for it. There are many who regard this policy as inhumane. It puts asylum seekers’ lives at risk and is likely negatively  to impact on public health in general. The policy is also very difficult for health care professionals to administer and enforce.

It may be worth providing some background to this. In 2004, as part of the National Health Service (Charges to Overseas Visitors)(Amendment) Regulations, the Government introduced charges for all refused asylum seekers to access hospital care except for emergencies. In practice that has meant that treatment in an A and E department is free but all other hospital and specialised medical care is chargeable; that strikes many as a blunt instrument. That includes patients on section 4 support, pregnant women, children, cancer patients, diabetics and those needing treatment for HIV/AIDS. Treatment for most communicable diseases, except HIV/AIDS, is an exception to this rule and can be provided free of charge; there seems to be an anomaly in not including HIV/AIDS. Given how difficult it has become for asylum seekers to access health care, it is questionable whether they will come forward for screening or treatment for diseases such as tuberculosis or mental health problems.

The rationale at the time for this policy seemed to centre on health tourism. That was something the media were concerned about at the time, but there has been relatively little evidence that it was a significant problem. The occasional person will come to the UK specifically to access health care, but there is no evidence that that is the prime motivation for most people entering this country. In 2009, the Royal College of General Practitioners concluded:

“There is no evidence that asylum seekers enter the country because they wish to benefit from free health care.”

It also stated that GPs have a

“duty of care to all people seeking healthcare”

and

“should not be expected to police access to healthcare and turn people away when they are at their most vulnerable.”

The Royal College of Psychiatrists has also observed:

“The psychological health of refugees and asylum seekers currently worsens on contact with the UK asylum system.”

During its scrutiny of the Bill, the Joint Committee on Human Rights noted:

“We remain as concerned as we were more than two years ago when we concluded our inquiry into the Treatment of Asylum Seekers that a highly vulnerable group of people in the UK...continue to be denied access to fundamental healthcare”.

In the first two years following the introduction of the regulations, the Refugee Council worked with dozens of refused asylum seekers who had been denied or charged for the health care they urgently needed. To give a snapshot of the sort of cases that have fallen foul of the regulations, 15 women and two girls were charged more than £2,000 for maternity care and in some cases were denied that care if they could not pay in advance. I would contend that the unborn children had a right to care in utero, but others decided differently. Ten people who needed operations for different medical conditions or treatment for injuries sustained in the UK were denied treatment, as were people with cancer. A gentleman with bowel cancer was admitted to A and E, but his operation was cancelled when he was unable to pay for it and he was told to come back when his condition deteriorated. There are many similar examples.

Refused asylum seekers face considerable obstacles to accessing care, including confusion about entitlements, GPs using their discretion whether or not to register or treat them, language barriers and so on. This all paints a very confused picture. Despite having been refused asylum in the UK, some of these people have horrendous stories. They sometimes have health problems linked to torture, poverty in their country of origin or even mental health problems caused by their detention. The numbers may be relatively small but the problems are quite specific. I alluded earlier to the problem women asylum seekers face; if they are pregnant, they do not get good anti-natal care.

There was a successful legal challenge to this policy in April 2008, but the ruling was overturned on appeal by the Government. The Court of Appeal handed down its judgment on 30 March, finding that failed asylum seekers cannot be considered ordinarily resident in the UK and are not exempt from charging, even if they have lived in the UK for a year. However, the court also found that existing guidance is unlawful as it is not sufficiently clear on what treatment should be considered urgent and immediately necessary.

In response, the Department of Health issued interim guidance on the 2 April 2009. That makes it clear that immediately necessary treatment, including maternity care, must never be withheld; urgent treatment for conditions such as cancer, which would deteriorate significantly if untreated, should not be withheld; trusts should not pursue charges beyond what is reasonable; and non-urgent treatment that can wait until the person returns home should not be started until payment has been made. By contrast, in Scotland, refused asylum seekers receive free health care until they return home, and in Wales, the Welsh Assembly have confirmed that they will not charge refused asylum seekers for access to secondary health care despite the outcome of the appeal.

The new interim guidance is welcome, but it does not address the fundamental concerns relating to the charging regime and the way guidance has been implemented since 2004. There has been a lot of confusion and the new clause is an attempt to clarify some problems from the past. The policy remains burdensome on health care professionals. They may have to assess when a patient is likely to return home, or whether waiting until that time would lead to an unacceptable deterioration in the patient’s condition. This can be difficult and time consuming. It is also inappropriate to make health care professionals consider a person’s immigration status when their duty of care should be their only concern. In addition, there are still likely to be differences of opinion between clinical and non-clinical staff as to which cases are immediately necessary or urgent, because hospitals will not be reimbursed for the treatment they give to refused asylum seekers.

We are moving into the argument about whether it is a good thing to charge for health care, but if people do not come forward there are public health risks, because they may not be screened for treatment or they may not receive inoculations. The policy is not consistent with the ethos of the NHS constitution, which we discussed at length earlier in the Committee.

Andrew Turner (Isle of Wight, Conservative)

How many asylum seekers live in England, and how many in Wales and Scotland?

Sandra Gidley (Romsey, Liberal Democrat)

I do not have that information, but if the hon. Gentleman is interested we can table a question to the Home Office and it will provide the answer.

In May 2009, the committee on economic, social and cultural rights voiced its concern over the low level of support for and difficult access to health care for rejected asylum seekers. The charging structure also runs counter to other Government policy objectives on public health, social exclusion, combating HIV/AIDS and TB, and the Every Child Matters agenda.

Restoring refused asylum seekers’ access to free secondary health care would ensure more efficient use of NHS resources. Treatment that prevents or cures illnesses is obviously more efficient and effective than waiting for a condition to deteriorate until it reaches the thresholds of immediately necessary or urgent treatment, which cannot wait until the person is expected to return home. That conclusion was also reached by the Joint Committee on Human Rights, which repeated a previous recommendation that

“free primary and secondary healthcare be provided for all those who have made a claim for asylum or under the ECHR whilst they are in the UK, in order to comply with the laws of common humanity and the UK’s international human rights obligations, and to protect the health of the nation”.

It also stressed the very difficult position of refused asylum seekers who cannot be returned and recommended that the Government issue guidance to set out clearly their entitlement to free health care while they remain in the UK.

If the Department of Health issues further guidance before that has been done, it should help to ensure the proper implementation of existing guidance and relieve some of the burden on health care professionals by specifically stating that the decision whether to treat somebody rests entirely with the commission. That was confirmed in another place by Baroness Thornton on 6 May 2009.

Refused asylum seekers on section 4 should be exempt from charges as the grant of section 4 support means that the Government accept that those people are temporarily unable to return home and would otherwise be destitute. All HIV treatment should be considered immediately necessary. That has been recommended by the British HIV Association and there is clearly a public health implication here. The Government should also take steps to reimburse hospitals in areas where large numbers of asylum seekers are grouped so they do not have to bear an unreasonable extra cost from properly implementing the guidelines. There would obviously be a disproportionate impact on those areas.

Earlier, a comment was made from a sedentary position about how much all this would cost. The more important question is, how much less would it cost if we treated early? Community-based health care is cheaper than secondary health care. Seeing a nurse at a GP’s practice costs £33 an hour. Seeing the GP costs £116 per hour of patient contact. Prompt referrals to hospitals for care that is required can be very cost-effective. For example, seeing a doctor who is a medical consultant based in a hospital costs £163 per patient-related hour and out-patient attendance at a hospital for a face-to-face meeting, non-consultant led, would cost £55 for first attendance and £71 for the follow-up.

Compare that to the cost of treating someone whose condition is allowed to deteriorate until care is absolutely  necessary. The average cost for a journey in an emergency ambulance is £263, or £344 in a paramedic unit. If surgery is required, the cost for a surgical consultant to perform an operation is £388 per hour. Similar arguments can be extended to mental health issues. In short— [Interruption.]

The hon. Member for Eddisbury has spoken at length on a number of amendments. The first one I speak at length on, he seeks to mock me. He is being rather churlish.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

It was me.

Sandra Gidley (Romsey, Liberal Democrat)

I must correct that—it was the hon. Member for Hemel Hempstead, who has been brief in his comments. In short, the amendment— [Laughter.] I could go on for longer if the Committee requires, but I will not. [Interruption.] Yes, there are a lot more yellow pages of notes, so the Conservative Whip should be careful before he comments further because I could probably speak on this matter until 5 o’clock if I so wished, but other important amendments need to be discussed. He can have it whichever way he likes.

The amendment would create fairness in a situation which is unfair on a lot of failed asylum seekers and does not treat them compassionately. It is ironic that the Government, in the form of the Department for International Development, put a lot of resource into improving health care in some of those countries, yet refuse the same people treatment if they are in this country. That is not fair.

Andrew Slaughter (Ealing, Acton & Shepherd's Bush, Labour)

I congratulate the hon. Lady, who was taking a bit of flak, on bringing the matter forward. Having said that, it does not sit easily with the Bill and I am not sure that the new clause is the way to address what is a complex issue—in several parts, as she suggested. However, one has to take one’s opportunities where one can. She has done that and she was right to do so.

This is a matter of concern to my constituents and to me—particularly to refugee organisations in my constituency, my law centre and other practitioners who represent refugees and asylum seekers. I am not sure that the original legislation was well conceived by the Government back in 2004, but we are where we are and the hon. Lady has indicated some of the problems that have come from that.

I want to highlight three separate areas. The first, which has already been mentioned, is refused asylum seekers under section 4. This appears to be entirely anomalous and I do not think that the new clause is dealing with that. It might deal with it in passing, but the issue goes much further.

I shall listen carefully to the Minister. I hope that we get some indication—if not today, then in the near future—of the Government’s intention. It is a highly anomalous situation whereby asylum seekers who are due for return are, with the Government’s agreement, not being returned for good and practical reasons—often to do with temporary situations in their country of return. In such circumstances, the Government do not have a leg to stand on in withholding health care.

The second problem, which recent legal proceedings have highlighted, is that the situation is confusing to medical practitioners and to asylum seekers. That has led either to asylum seekers not receiving the proper  care to which they are entitled, such as primary care or maternity care, or to the types of care that are available not going far enough. I agree that the new guidance issued in April 2009 is helpful in clarifying some of those anomalies, but it shows that there were anomalies and confusion, and that there is continuing confusion in some areas.

I hope that the Government look at the matter again. It is principally an issue for regulations under secondary legislation and guidance, rather than primary legislation. However, the Committee offers an opportunity to ask the Government to look again at the circumstances in which there is either a clear humanitarian need or a pressing practical need for conditions to be dealt with.

One of those conditions is HIV, which is primarily excluded from treatment. I cannot see why that condition does not fall under the type of urgent and necessary care that would allow immediate treatment, with later charging, if necessary, rather than being excluded from other contagious and infectious conditions. That is another area that I hope the Government address. It appears that the Liberal Democrats wish to go further than simply repealing the legislation wholesale.

During the Division, I had an opportunity to talk to my hon. Friend the Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights, and who, in April 2009, produced a powerful argument along those lines. The Government should look at it again. The cost arguments can go backwards and forwards. The costs in terms of overall health service spending are clearly de minimis, although I am not saying that they are not large. However, there are substantial arguments that the bureaucracy, the waste of clinical time and the delay in treatment that permits a condition to worsen are on purely practical, let alone humanitarian, grounds matters that should be looked at again. I am talking of conditions such as cancer, which, perhaps in its early stages, may not receive the type of secondary treatment necessary in this respect, but which in later stages clearly would receive treatment.

I believe, as probably all hon. Members believe, that when asylum applications have failed and due process has been carried out, it is right to return people to their country. Indeed, people who abuse the asylum process in that way do no service to genuine asylum seekers. However, for those caught up in the process of bureaucratic delay and who remain in the United Kingdom—we have heard about the anomalies between the different constituent countries—the system is not achieving a great purpose.

I do not believe that a large number of people come as bogus asylum seekers to receive medical treatment or significantly delay their return for spurious reasons to prolong that medical treatment. In the end, the Government will need to decide largely to abandon the position they have taken—on practical as much as humanitarian grounds. Today, I emphasise the point of detail I have raised, which is essentially to do with failed asylum seekers not being returned because of a Government decision or because of conditions where treatment is in fact urgent and necessary, requiring care that may fall outside the provisions.

I look to the Minister to explain the Government’s line and to say whether further announcements or guidelines will be produced.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Everything that needs to be said on the matter has definitely been said. While some important and sensitive issues lie behind the new clause, as well as those of equity, it does not show real understanding of cost implications and it would premature and difficult to include it in a legislative provision at this stage. Were the new clause pressed to a Division, regrettably, Conservative Members would be unable to support it.

Patrick Hall (Bedford, Labour)

I want to make it clear to my right hon. and learned Friend the Minister that I take the issue seriously and welcome the contributions made by the hon. Member for Romsey and my hon. Friend the Member for Ealing, Acton and Shepherd’s Bush. I will not repeat what they said, because there is no need to do so. In fact, while the hon. Member for Romsey was speaking, I had the impression that some Opposition Members regarded the matter as a waste of time and were more interested in other things. [Hon. Members: “No.”] I do not want to misrepresent anyone, but that feeling came across.

I want to make it clear to my right hon. and learned Friend that that is not the attitude adopted by many Labour Members. This is not a question of dealing with such matters as quickly as possible. It might not be suitable to add such a provision to the Bill—that is fair enough—but I hope he will acknowledge that he, too, takes such matters seriously and that there may be an opportunity for him to consider the issue further on Report, or at least suggest how such matters might be more properly addressed in the future.

I remember my right hon. and learned Friend introducing a White Paper some years ago, when he was at the Home Office. I think it was entitled “Faster, Firmer, Fairer”. Many improvements have been made to the immigration control system, some parts of which are faster, but people can still exercise appeal rights and some will not be returned for other reasons, such as the country of origin being deemed unsafe and no safe third country being identified. Genuine issues should not be treated or dismissed lightly.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I begin by being clear that the Government recognise and respect the fact that their duty is to ensure that the provision of health care is fully compliant with human rights principles. That is important, and we want to ensure that it is firmly on the record.

There are two distinct parts of the new clause, both of which seek exemption from charging for NHS hospital care—an addition to the existing category of refugees and an extension to those refugees and other human rights applicants to include those whose applications have been refused, generally referred to as failed asylum seekers.

On the addition to the existing category of refugees, I should make it clear that the definition in the regulations is intended to cover any person seeking refuge or protection, whether under the 1951 UN convention—in other words, an asylum seeker—or through any other route, including the European convention on human rights. The trigger, therefore, is not whether a person is designated an asylum seeker, but whether they are deemed to be  seeking refuge—that is an important category. That means that, in addition to asylum seekers, others may be included.

That definition, in practice, already captures most human rights applicants. As such, they are entitled to free health care while their claim is being considered. A small number may seek leave under the articles of the ECHR relating to family life or marriage. That is a separate category, as they are not seeking refuge but are seeking entry in relation to family life and marriage. We would not extend full rights and benefits unless, or until, leave to remain was granted, as is the case with any other foreign national who seeks to remain in the UK. That exception is important, but for those seeking refuge the position is clearer, although I am not saying that it is entirely clear.

The existing regulation is therefore sufficiently broad to cover genuine humanitarian needs and does not require amendment. However, the Department is looking at the issue with care and wants to update its guidance on charging. For the avoidance of doubt, we will certainly ensure that the intended meaning of the definitions is made fully clear when the guidance is published.

On the proposal to extend free hospital care to failed asylum seekers, the issue of whether they should receive free and unrestricted treatment must take into account a range of complex health conditions, in particular balancing migration strategy with the need to support human rights and public health. Hon. Members will be aware that a review of access to the NHS for foreign nationals is looking at that issue and will report shortly. It would not be appropriate for me to prejudge the outcome of that review. The issue is being looked at, and it is right that it should be.

I should set out some of the key rights that people have. I want to look at the human rights of the people mentioned, many of whom are here because of their circumstances. We are aware that failing an asylum test does not mean that a person’s human rights are somehow invalidated—that is not the case.

First, any course of treatment that commenced before an asylum claim was refused will continue free of charge until a clinician considers it complete. Only new courses of treatment will incur a charge.

Secondly, treatment in a hospital A and E, or any emergency treatment at a GP surgery, is free of charge. Treatment for many infectious diseases and sexually transmitted diseases—I will come back to HIV—is also free.

Thirdly, urgent hospital treatment must not be denied, delayed or restricted. Hon. Members may be aware that a recent Court of Appeal judgment found that the Department’s guidance on that was not entirely clear. The Department has fully accepted the court’s judgment and welcomed the opportunity to act further to ensure clarity on the rights to treatment and their being enforced.

We issued immediate interim guidance to the NHS to clarify matters related to urgent treatment, which is what clinicians judge cannot wait until the patient is likely to return home—whether or not some treatment can genuinely wait and that not exacerbate a condition seems to be the real issue. That urgent treatment should always go ahead even if payment has not been received. If the patient genuinely has no funds or resources, a hospital may decide not to ask for deposits or may write  off any debt. We expect hospitals to act reasonably when asking for payment or seeking to recover any costs.

We have also committed to a full redrafting of the guidance on the urgency of treatment—in the autumn, after assessing the impact of the interim guidance. We want to see what the guidance we have issued so far has done and then look at how it needs to be changed. We want to do that in reasonably good time in the autumn.

Sandra Gidley (Romsey, Liberal Democrat)

I am not sure whether the Minister is saying that the guidance will be reviewed or that new, revised guidance will be produced in the autumn. When does he expect new guidelines to be produced?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I am saying, in effect, both. We want to see the impact of the interim guidance—how it deals with the problems that have arisen, some of which were outlined by the hon. Lady and others—but we also want to review how the guidance can be further developed. A review of the guidance and a review of how the interim guidance has operated—we want to ensure that we do both. In that context we want to consult the key stakeholders to ensure that the final guidance is clear, operable and compliant with the Court of Appeal judgment.

Andrew Slaughter (Ealing, Acton & Shepherd's Bush, Labour)

I am pleased to hear what my right hon. and learned Friend says about looking at such matters again, including charging. He will consult with no doubt better qualified people, but will he also consider meeting me and other hon. Members who are interested in the issue?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I shall be happy to meet my hon. Friend and others to discuss the issue. Let me add that the Government are committed to re-examining the case for exemption from charges for those failed asylum seekers whom the UK Border Agency accepts have a legitimate, temporary barrier to leaving the UK—of the sort he identified—and who are given section 4 support. I confirm that the review of access is actively considering that.

We take the issue seriously in relation to not only human rights, but people’s most basic rights and the principles of the NHS. I assure the Committee that the Government want to deal effectively with the issues of accessibility to health care for refugees, as shown by our actions and commitments on the definition of “refugees”, the urgent treatment guidelines and those failed asylum seekers covered by the section 4 provision—legitimate temporary barrier to leaving the UK.

Given those safeguards and commitments, the Government do not feel that a more explicit and extensive exemption from charging is appropriate now. We want to see what the impact of the interim guidance is. We want to have a look at the issue in the round and we do not deny that there are related issues. There is no Government denial that the issue is sensitive and needs to be resolved with a degree of care and concern for people who may well be vulnerable. On that basis, I hope the hon. Member for Romsey will not press her new clause to a Division.

Sandra Gidley (Romsey, Liberal Democrat)

I am inclined not to press the new clause to a vote. I do not think that I would receive support from Conservative Members. Interestingly, I might receive some support from Labour Members, but I shall not push it at this stage.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

That is not because of the issues that lie at the heart of this. I hope I made that clear. Indeed, it needed to be made clear to the hon. Member for Bedford, who cast completely unfounded aspersions about the motives of Conservative Members. [Interruption.] Completely unfounded, and he should withdraw the remark.

It is important to recognise that there is a real issue here, because what is contained in the new clause is a very large spending commitment, which at the moment is not costed, making things very difficult for anyone looking at the deployment of resources either in the NHS or in any other Government budget. A much better cost assessment would be needed in order to proceed to support what lies at the heart of the issue—the substance—on which the hon. Lady made some very fair points. However, without costings, the measure presents difficulties, of which I dare say she might be aware, for her own party’s economic policy.

Sandra Gidley (Romsey, Liberal Democrat)

I thank the hon. Gentleman for that clarification. I can assure him that my hon. Friend the Member for Twickenham (Dr. Cable) would have my guts for garters if I proposed an unlimited spending commitment. However, neither of us knows the truth of the matter at this stage and I accept that the hon. Gentleman supports the sentiment behind the new clause.

I am reassured that there is an active review of section 4 payments, because it struck me that this area is particularly unclear. I retain some concern over the public health aspects, but there seems to be quite a lot of work going on. At this stage, therefore, I think it better to withdraw new clause and to review what is happening, prior to consideration on Report.

Something may be produced at that time, but it would be helpful if the Minister wrote to me on any other points of clarification, because significant numbers of people working in the health service find the guidelines difficult to work under. They are not exactly clear and the sooner we have clarification on this matter, the better it will be for the people who are suffering as a result of the policy. It will also be better for managers and clinicians, who are sometimes caught, having to make difficult decisions. We need greater clarity. I beg to ask leave to withdraw the motion.