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Case Study
Overview
In April 2004 the Government introduced regulations limiting access
to hospital treatment for refused asylum seekers and other migrants
who are classed as ‘overseas visitors’. The regulations
said that overseas visitors should be charged for hospital treatment,
and that if they could not pay in advance for some kinds of treatment
then they should not get it at all.
The Department of Health’s guidance to hospitals on when to
charge people for treatment, and when to refuse treatment if someone
could not pay, did not take account of the fact that many of the patients
affected by these regulations are destitute, are waiting for decisions
from the Home Office having made applications for leave to remain
in the UK, and cannot return to their countries of origin.
The Claimant
Mr YA was referred to us by the Refugee Council. He was Palestinian
and had fled to the UK to avoid persecution by Hamas. His application
for refugee status failed, and he reluctantly agreed to return home.
However he was prevented from doing so by Israeli travel restrictions.
Mr YA was suffering from chronic liver disease. He was then told he
may have lymphatic cancer. His conditions were life-threatening and
he required urgent medical care. However he was refused treatment
because he was unable to pay for it. He was unable to pay because
he was prevented from working by the Home Office and was destitute.
We agreed to help Mr YA secure the life-saving treatment he needed,
and to use his case as a test case to try to help to other people
facing similar difficulties.
Other organizations involved
In order to demonstrate to the Court the wider impacts of the regulations
and guidance we worked with campaign groups, national charities and
international NGOs who are active in this area, including Medicins
du Monde, Medact, National Aids Trust, Terrence Higgins Trust and
the Refugee Council.
They provided evidence about the wider impact of the Government’s
rules, in particular on pregnant women and people suffering from chronic
illnesses such as cancer and HIV. Their evidence showed that the Government’s
guidelines were not clear enough and were leading to hospitals incorrectly
refusing to provide treatment. It also showed the human cost of such
draconian limits on healthcare provision.
What happened
Initially we sent warning letters to the hospital involved and to
the Department of Health. When they refused to change their positions
we immediately began a judicial review case in the High Court in light
of Mr YA’s need for urgent treatment.
Soon after we did so the hospital agreed that they were wrong to refuse
to treat Mr YA, and they provided him with treatment. His condition
had deteriorated badly by that stage, but he is now much better.
Although it can be difficult to persuade the High Court to allow a
judicial review case to continue when the person bringing the case
has been given what he or she has asked for, we successfully persuaded
the Court to allow the case to continue because of the wider public
importance of the issues it raised.
As a result, in April 2008, after a two day High Court hearing, Mr
Justice Mitting ruled that the Government’s guidance to hospitals
was wrong, and that everyone in Mr YA’s situation should receive
free treatment.
The Government appealed and, in March 2009, the Court of Appeal modified
the High Court decision.
The Court of Appeal decided that the correct approach was that hospitals
had a choice about whether to treat someone in Mr YA’s position
and that the Government had acted unlawfully by failing to provide
clear guidance about when they should exercise that choice in particular
cases.
The government must now amend the guidance. Once the government does
so, it should be easier for people with very serious illnesses to
secure the urgent assistance they need, and make it easier for individual
hospitals to make lawful treatment decision.
Postscript
Although the government must now amend the guidance, many of the charities
and NGOs we have been working with are still concerned about the extent
of the current limits on the availability of secondary healthcare.
As a result, this case may now progress to the new Supreme Court.
This is very unusual and most judicial review cases are resolved far
more quickly (indeed Mr YA secured the treatment he need soon after
he first contacted us). However, in test cases where the issues in
dispute affect large numbers of people it is sometimes important for
everyone involved for there to be a definitive ruling on how the law
should work.
Links
For a copy of the High Court judgment click
here.
For a copy of the Court of Appeal judgment click
here.
For some examples of press coverage see:
BBC
– 30/3/09
Channel
4 News – 30/3/09
BMJ
– 1/8/08
Guardian
– 12/4/08
Telegraph
– 30/3/09
Daily
Mail – 31/3/09
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