Health Bill [HL]

My Lords, I shall respond to the three related amendments. I believe they have a common principled intent of protecting the human rights of vulnerable groups with regard to the provision of healthcare. First, I emphasise that we recognise and respect fully our duty to ensure that the provision of healthcare is fully compliant with human rights principles. Noble Lords have raised genuine concerns about treatment being denied and have pointed to the recent Court of Appeal judgment in the case of YA as an example of where the department’s guidance was not clear. It has never been the department’s intention that necessary treatment should be denied, delayed or restricted, but we have accepted fully the court’s judgment, and indeed have welcomed the opportunity to act further to ensure that these rights to treatment are enforced. That is why we swiftly issued interim guidance on 2 April in a letter to the NHS clarifying that decisions on whether or not treatment should be considered urgent must necessarily take account of the patient’s plans and intentions to return home and their ability to do so. This interim guidance also stated that urgent treatment should always go ahead even if payment has not been received. If the patient genuinely has no funds or resources, hospitals may decide not to ask for deposits or may write off any debt. We expect hospitals to act reasonably when asking for payment or recovering debts. We have also committed to a redraft of the full guidance in the autumn, after assessing the initial impact of the interim guidance. We will consult with key stakeholders to ensure that the final guidance is clear, operable and compliant with the Court of Appeal judgment. Our consultation will include counsel and representatives of YA, as well as medical professionals and hospital managers and could also include interested Members of both Houses. In proposing Amendment 71, the noble Baroness, Lady Stern, has raised specifically the case of Section 4 failed asylum seekers, those whom the UK Border Agency accepts have a legitimate temporary barrier to leaving the UK. I know that my noble friend Lord Dubs feels strongly about this group of failed asylum seekers. Indeed, he raised their case specifically when he met with me recently. He and the noble Baroness make a strong case that it is unfair and indeed inhumane that access to healthcare should be restricted when they are willing but temporarily unable to return. I should point out that in these circumstances urgent treatment should not be denied. It would be subsequently chargeable, but of course such a charge is highly unlikely to be followed up. Indeed, any free treatment that had commenced before an asylum claim had been refused would continue free of charge. However, the Government have sympathy with the view that some special provision should be made for this particular group, and we are actively examining this issue in the context of our current review of rules on migrants’ access to free NHS services. I cannot pre-empt the outcome of that review today, but I can reassure the noble Baroness that my noble friend’s clearly expressed views will be taken fully into account. Any resulting change to the charging arrangements would be enacted through secondary legislation, and reinforced through the published charging guidance that is issued to the NHS. I recognise the noble Baroness’s intentions to ensure that the basic rights of this potentially vulnerable group are protected. I hope I have been able to demonstrate the department’s recent actions and continued intentions to address the specific concerns that Peers have raised in this context. Amendment 73 relates to refugees and failed asylum seekers. There are two distinct parts to this amendment: an addition to the existing category of refugees, and an extension to refugees and other human rights applicants to those whose applications have been refused—failed asylum seekers. On the addition to the existing category of refugees, this definition is intended to cover any person who is seeking refuge or protection, whether that be under the 1951 United Nations convention—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 formally deemed to be seeking refuge. This therefore already captures most human rights applicants. A small number may seek leave under other ECHR criteria, such as family life or marriage, but if they are not in need of immediate protection, we should not extend full rights and benefits unless or until leave to remain is granted. I can confirm that the department is reviewing the regulations and guidance on charging and will ensure that the intended definitions are made fully clear when these are laid, which I hope will be later this year. On the proposal to extend free hospital care to failed asylum seekers, as I explained in Committee, the issue of whether all failed asylum seekers—not just those who are unable to return home—should receive free and unrestricted treatment has to take account of a range of complex issues, and this should be left to the current review of access to the NHS for foreign nationals. That remains our principled position, but with two important caveats. First, I have already indicated that the Government are sympathetic to the case for Section 4 failed asylum seekers, and the department will actively examine this issue with government colleagues. Any resulting change would be enacted through secondary legislation and is not required to be linked with this particular Bill. Secondly, I have also referred to the actions that the department has taken following the recent Court of Appeal judgment regarding treatment guidelines. These should ensure that no failed asylum seeker is unreasonably denied necessary treatment, irrespective of ability to pay. It is also worth noting that any course of treatment that commences prior to an asylum claim being refused should continue without charge. For people who are appealing to remain, the treatment also remains free until the appeal is still being heard. In response to the noble Baroness, I confirm that it has always been a clinician’s decision; this has been clarified to me by my noble friend, and I suppose that he should know. When treating diabetes, treatment must take into account how long the asylum seeker is likely to be in the community. However, there is no question that people will be denied such treatment. That would be counterproductive. If they are unlikely to be returned home within a reasonable time, the guidelines say that they certainly should be treated. In conclusion on this amendment, I hope that noble Lords would agree that we have made some progress on this issue. I am very grateful for the representations that noble Lords have made on this issue. I assure noble Lords that we take seriously the accessibility of healthcare for refugees, as our actions and commitments on the definition of refugees, on urgent treatment guidelines and on Section 4 asylum seekers demonstrate. Finally, in response to Amendment 74, noble Lords have raised some genuine concerns in the course of this debate. I will address these shortly, but first I want to clarify the extent to which full treatment for HIV is already provided for migrants and other visitors. Exemptions for charging are in place for all asylum seekers as long as their application and any appeal remain current. If the asylum application and any appeal subsequently fail, a person already receiving HIV treatment will continue to receive it free of charge up until they are deported or leave the country. HIV treatment, once started, is never withdrawn. NHS guidance also makes clear that urgent or immediately necessary treatment should not be delayed, irrespective of a person’s inability to pay, and that such decisions to treat must always be clinical. The guidance also makes clear that antenatal HIV treatment must be considered as immediately necessary and provided without delay. I have also referred to how we have reinforced this guidance following the recent Court of Appeal judgment. HIV is an important public health issue, and I acknowledge the breadth of knowledge and expertise which have informed noble Lords’ interventions both today and during Committee stage. I am aware that HIV treatment and prevention strategies are constantly evolving. Noble Lords touched on some of the more topical issues linked to the benefits of early treatment, the need to continue to reduce undiagnosed and late HIV diagnosis and the role of HIV treatment in reducing HIV viral load and infectivity. This research is recent and still evolving, but the department recognises that it needs to evaluate its conclusions and implications. Much of the debate in this area focuses, understandably, on the very important humanitarian and medical-ethical issues associated with HIV care, especially for very marginalised groups, and that is quite right. However, an exemption from charging as proposed would apply to all visitors to the UK, irrespective of their residency status. We must therefore consider the benefits of treating perhaps a small number of very marginalised people currently in the country, against the potential risks and costs to the NHS of a significant increase in numbers of people from overseas. I recognise that one of the challenges is an absence of robust information to quantify numbers around these scenarios. HIV is, of course, a cross-government issue, and we need to consult with other government departments, including ensuring alignment with the Government’s international AIDS strategy. The department has therefore decided to initiate further work to review the current policy of excluding HIV treatment from the exemptions set out in regulations. This internal review will consider the latest clinical and public health evidence, as well as a more robust assessment of the likely capacity and cost implications. We will also examine how the current regulations and guidelines are being applied in practice. We would be happy to receive representations from interested parties to inform this work. The conclusions of this work will be published and may lead to consultation on any resulting proposals. I should point out that changing HIV charging policy in the way that the noble Baronesses are intending requires amendments to secondary regulations rather than primary legislation, as has been tabled here. In conclusion, I hope that noble Lords will appreciate that their strongly held views presented during two recent debates have been recognised. While it is not possible agree to an immediate change, the department is willing to commit to a review of the current policy, informed by more comprehensive and current evidence and information. In the light of these assurances, together with my previous assurances regarding Section 4 failed asylum seekers, the revision of treatment guidelines and the definition of refugees, I hope that the noble Baroness will feel able to withdraw the amendment.