At present, government policy differentiates between access to primary and secondary care and between entitlement to ‘routine’ or ‘emergency’ treatment. The government also differentiates between failed asylum seekers and those who are applying for asylum. Current Department of Health guidance is summarised in .39
Current entitlement of ‘overseas visitors’ to NHS treatment.
This two-tier system gives rise to several situations in which care may be deliberately withheld. For example, in the case of HIV, failed asylum seekers are entitled to testing and counselling but not to treatment of HIV with antiretroviral drugs. In the case of diabetes, patients may complete a course of treatment for complications but would not be entitled to ongoing care if their asylum appeal was subsequently unsuccessful.
Prior to the recent high court ruling, the government has advised that ‘best practice is to ensure that overseas visitors are aware of the expectation to pay charges … before they start treatment, so they can consider alternatives like a return home, if they are well enough to travel’.40
Most undocumented and failed asylum seekers will, of course, be unable to pay and in effect will be refused treatment.
A further implication of this policy is that the onus is placed on healthcare staff to discern a patient's immigration status. Some argue that this places doctors in the impossible position of either breaking the law by maintaining the principles of ‘Good Medical Practice’ and providing care on the basis of need, or complying with the current political imperative by applying a discriminatory policy.41,42
Perhaps the fundamental issue here is the extent to which an individual doctor practising within the NHS is governed by a moral versus a political obligation. At present there is an uneasy tension between the NHS as a monopoly provider of health care on one hand, and on the other, the duty of the medical professional as an advocate for the care of the sick irrespective of issues of citizenship.
The case of HIV
The case of HIV exemplifies some of the implications of recent policy. People of ‘uncertain immigration status’ are currently entitled to treatment for sexually transmitted infection and illnesses that may be a threat to public health. However, despite meeting these criteria, HIV is explicitly excluded from this list. There are a number of practical, ethical, and moral problems with this position.
First, there is a clear clinical case that treatment early in the disease may prevent long-term death, disease, and disability. Harm can therefore either be avoided in the present or at some point in the future (when there is a ‘life-threatening situation’ as defined by the Department of Health). There is no clear ethical argument for withholding intervention in the present, while permitting action in the future.43
Second, the concept of ‘duty of easy rescue’ holds, whereby minimal cost to an individual (the tax payer) should not prevent significant benefit to another (that is, to provide life-saving treatment).44
In the context of the NHS as a whole, the cost of treating refused asylum seekers with antiretroviral therapy is minimal compared to the cost of not acting and treating the eventual consequences.45
Third, current ‘loopholes’ in the system lead to discrepancies that may be inconsistent and arbitrary. For example, HIV treatment may be available through genitourinary departments where residential status may be withheld, but not in obstetric departments where the full cost of care would payable. Treatment is allowed for ‘life-threatening’ or ‘immediately necessary’ situations and it could be argued this should include antiretroviral treatment for all women of childbearing age.