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LEGISLATION / POLICY
Added 10th August 2010 ESOL requirements Many applicants who wish to settle in How to satisfy requirements: 1. Successfully complete a course of study in ESOL with citizenship[1]. The qualification gained must show evidence of progress of at least one level and be taught on a course containing specific citizenship materials. 2. Passing a short test on knowledge of life in 3. Confirming that you have already done this to get ILR. NB You could do this in Welsh or Scottish Gaelic instead! Exemptions: “If you are aged 65 or over, or have a long term physical or mental condition that prevents you from learning English or being tested on your knowledge of life in [1] You must ensure that any course you undertake is offering an approved ESOL course with citizenship content and that Rights to Healthcare
Court of Appeal Judgment – YA v Secretary of State for Health So failed asylum seekers are no longer entitled to free hospital treatment? Correct, except for the services which are free to all people regardless of any other factor, such as treatment given in an A&E, compulsory psychiatric treatment and treatment for certain contagious diseases. However, Trusts may, in accordance with Guidance, need to provide urgent or immediately necessary treatment. Do we begin to charge them for courses of treatment already underway? Where a person was thought to be exempt from charges by virtue of having been in the UK for a year prior to treatment, the regulations state that courses of treatment already underway free of charge must remain free until complete or until they leave the country. New courses of treatment will be chargeable. What about those we considered Ordinarily Resident, rather than exempt? The regulations as drafted do not forbid a charge to be made for the remainder of a course of treatment for those who were thought to be ordinarily resident but who now no longer are. However, DH strongly advises NHS trusts to continue to treat these failed asylum seekers for ongoing courses of treatment, and to write off any debts as they occur. What constitutes a course of treatment? It is for a clinician to decide what constitutes a particular course of treatment but it can comprise of a range of measures, adapting over time due to the changing state of the patient's condition. Does this mean that we should not treat Failed Asylum Seekers? No. It only means that they are not entitled to treatment free of charge. Treatment should still be provided where the need for it is immediately necessary or urgent, even if they have not paid in advance, or where payment has been received in advance for non-urgent treatment. But I have read in the press that we can choose not to treat them. Some parts of the press have misleadingly reported the judgment. It is true that the Court of Appeal found that trusts do have the discretion to withhold treatment, pending payment, but that they also have discretion to provide treatment when there is no prospect of the patient paying for it. DH has written to NHS Chief Executives about the exercise of this discretion. Who establishes the urgency of treatment? Only clinicians can decide on the urgency of treatment needed, but they may need information from you on the intentions of the person to return home, in order to establish this. Do we always have to provide immediately necessary treatment? Yes. Immediately necessary treatment, including all maternity treatment, must never be withheld for any reason. It should be limited to that which is necessary to enable the patient to return to their own country, but in order to establish when treatment should be limited, you will need to consider the person’s plans and intentions of returning home and their ability to do so. Can we ask for payment in advance of immediately necessary treatment? This will usually not be appropriate or even possible. You should inform patients of possible charges at the earliest appropriate point but you must not delay treatment because of it. Do we always have to provide urgent treatment? Yes. Urgent treatment is that which clinicians do not consider immediately necessary, but which nevertheless cannot wait until the person can be reasonably expected to return home. This may be for conditions such as cancer. It will be necessary for an assessment to be made as to when the patient is likely to return home in order for the clinician to establish if the need is therefore urgent. Can we ask for payment in advance of urgent treatment? Yes. As the treatment is not immediately necessary, there will be a period ahead of treatment which you should use to secure a deposit equivalent to the estimated cost of treatment or an instalment, where possible. However, some patients will clearly not be able to pay in advance so should not be pursued at this stage. If, after treatment, it is also clear that they will not be able to pay their debt, it should be written off. What if they can’t or won’t pay – can we withhold treatment then? No. Urgent treatment must be provided even if payment has not been received, for whatever reason. However, it can be limited to that which is necessary to enable the patient to return to their own country, In order to establish whether treatment should be provided or if it should be limited, you will need to consider the person’s plans and intentions of returning home and their ability to do so. Then we are being asked in effect to provide everyone with urgent treatment free of charge. No, only if it is clear that a person does not have funds, perhaps because they are destitute, should they not be pursued for payment. For everyone else payment should be pursued in advance, or, if not, after treatment has been provided. You can consider arranging payment by instalments or using debt collection agencies where this is likely to be fruitful. This judgment means that we are being told to treat more patients. DH has always intended the current guidance to be interpreted in the way the Court of Appeal has found. Unfortunately, there has been inconsistent interpretation across the NHS so we are reiterating it, and making it clearer where the Court found it unlawful. Can’t we discourage people from receiving urgent treatment? No, you should not do this. It is important that a person receives treatment which a clinician considers urgent. However, you can point out to a person who can easily return home that by doing so they will not incur the cost that they will face if they go ahead with their treatment in the Do we always have to provide non-urgent treatment? No. Non-urgent treatment is routine elective treatment which could, in fact, wait until the patient returned home. An assessment of how long the patient will likely remain in the Can we ask for payment in advance of non-urgent treatment? Yes, you should not initiate treatment until a deposit equivalent to the estimated full cost of treatment has been received. However, if a person’s condition changes to ‘urgent’ either because their condition unexpectedly increases in severity, or because their circumstances change and they are no longer able to return home within a medically acceptable time, then they should be provided with the treatment even if payment cannot be secured in the meantime. How are we meant to decide when a patient is going to be able to return home to get their treatment there? Ultimately, you have to make an informed decision based on the individual circumstances of the patient. Firstly, you can ask a person their plans and intentions on returning home and their ability to do so. You may also wish to consider, for example, whether the patient is a failed asylum seeker who is being supported by the State because they are unable to return home. Alternatively, the patient may be, for example, a tourist or business traveller who is able to return to their home country relatively quickly. These factors will assist a clinician in deciding if their need for treatment is urgent because it cannot wait until they can realistically be expected to return home. How might the application of these new guidelines impact on specific illnesses like cancer and HIV? For all conditions, the level of urgency will depend on the state of the patient’s health and the stage of their disease compared with whether they are likely to return home for the treatment within a time which is acceptable for the clinician. If the clinician does not consider that they can return soon enough for the treatment needed, and that there could be an unacceptable deterioration in the patient’s condition, then it will be considered urgent, and should be provided even if it is not possible to secure advance payment. If the clinician considers that they are likely to return home before treatment is needed, or that their condition is stable and not serious, then it will be classed as non-urgent and should not be provided until advance payment is secured. However, this will then need to be assessed from time to time in case the need changes to urgent.
Who bears the cost of treating chargeable overseas visitors who don’t pay? Your PCT is not responsible for funding these patients. That is why it is important to recover the costs of treating chargeable overseas visitors from the patient themselves, who is almost always the only person liable. However, clearly it will not be possible to recover costs from people genuinely without the resources to pay, for instance because they are destitute, and so these costs should be written off as early as is thought appropriate. This means that the hospital trust will have to bear the cost. In relation to failed asylum seekers, this Court of Appeal judgment re-establishes the position prior to the High Court judgment of April 2008. Does this judgment have a wider bearing than failed asylum seekers? The judgment relates to all overseas visitors where it concerns what to do when a person is in need of treatment but either cannot pay in advance or is unlikely to return home within a medically acceptable time. When will there be more guidance? We will redraft the guidance to make clear what should happen, taking into account the Court of Appeal’s findings. This will be done in the autumn after receiving feedback on applying this interim advice. In the meantime, we will write to NHS Chief Executives this week so that trusts are formally aware of the judgment and what it means for the NHS. Where can I find a copy of the judgment? A transcript of the judgment can be found at: http://www.bailii.org/ew/cases/EWCA/Civ/2009/225.html Aren’t you still undertaking a review of the charging regime? Yes, this has taken longer than expected due to some very complex issues but remains ongoing. Is this the final position on failed asylum seekers? The opposing party has been refused immediate leave to appeal to the House of Lords on the ordinary residence and lawful residence judgements, but could still challenge this decision. However, this Court of Appeal judgment is now the law and must be followed with immediate effect. Separately, we are continuing to consider the position of failed asylum seekers accessing primary and secondary care as part of the ongoing review. A letter was sent from the department of Health to all Chief Executives in the NHS giving clear interpretation of the ruling. It can be downloaded here:
http://mighealth.net/uk/images/7/7a/Dhund.pdf
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