Other secondary care

‘Secondary care’ refers to treatment that is provided by hospitals. Although HIV treatment is now automatically free, a person with HIV may also need hospital treatment for another health condition, such as diabetes, heart disease or cancer, or require antenatal care. They may therefore be affected by the regulations described below.

The National Health Service (Charges to Overseas Visitors) Regulations 2011 is the key piece of legislation that governs entitlement to care.

The general principle of the regulations is that people who are not considered ‘ordinarily resident’ in the UK are ‘overseas visitors’ who are chargeable for treatment in NHS hospitals. There are, however, a number of important exemptions, described below.

The regulations place a legal obligation on NHS bodies that provide secondary care services to establish if patients are ordinarily resident in the UK. If they are not, they are meant to be charged for treatment. Most NHS trusts employ ‘overseas visitors managers’ or ‘private patients managers’ to carry out this task.

Rules can be interpreted differently by different doctors, departments, and NHS bodies. People refused or charged for treatment at one hospital could try other ones who may understand the rules differently.

Unless otherwise stated, the following information applies to the regulations in England. Similar, but sometimes slightly different, regulations exist in Scotland, Wales and Northern Ireland.¹

An overseas visitor is someone who is not ‘ordinarily resident’ in the UK. The latter term does not have a precise meaning, but a person who is lawfully in the country, intends to stay for several months or more, and is here for work, study or another clearly defined purpose is likely to be considered ordinarily resident.

‘Ordinary residence’ is not about nationality or payment of national insurance contributions. For example, a British citizen who is currently living abroad is not ordinarily resident in the UK, and so may not be entitled to free NHS treatment, unless one of the exemptions described below applies.

Overseas visitors can therefore include tourists, people visiting relatives, expatriates and undocumented migrants.

Some kinds of people who might otherwise be considered overseas visitors are exempt from charges.²

In relation to some particularly vulnerable groups, the following are exempt:

• Asylum seekers whose applications are still being considered
• This includes asylum seekers whose appeals are still being considered
• This includes people who have made a fresh claim that has been acknowledged by the UKBA (UK Border Agency)
• People whose applications for humanitarian protection (for example, on the basis of Article 2, 3 or 8 of the Human Rights Act) are still being considered
• People with refugee status
• People with discretionary leave to remain, exceptional leave to remain or humanitarian protection status
• In England, refused asylum seekers who are receiving section 4 ‘hard cases’ support or section 95 support (provided to a parent living with a child under 18) from the UK Border Agency. Note that refused asylum seekers who do not receive this support are still liable to be charged.
• In Scotland and Wales, all refused asylum seekers^3,4
• Victims of trafficking who have been identified as such by the UK Border Agency or the UK Human Trafficking Centre
• Immigration detainees and prisoners
• Children under local authority care – this will include minors without a parent, family member or guardian in the UK
• Family members (spouse, civil partner, children) of a person who is exempt under any of the above categories, usually as long as they are living together and the family member is in the UK lawfully.

Some of these exemptions only came into being in 2011. For example, in the previous regulations, refused asylum seekers had no exemption.

In addition, some other groups are exempt from charges, including some people who are lawfully employed, some full-time students and some UK pensioners living overseas. A person who is lawfully taking up permanent residence in the UK (for example to join relatives here) is also exempt. Although this person’s visa may be marked “no recourse to public funds”, NHS treatment is not listed in the immigration rules as “public funds”, so the person would be eligible for treatment.

In addition, a number of countries have a bilateral healthcare agreement with the UK. Their citizens or residents are exempt from charges, as long as their health condition arose after arrival in the UK. In particular, this applies to residents of most European countries.

Department of Health guidance reminds NHS staff that they should not discriminate when implementing the charging regulations. This means that all patients should be assessed for their eligibility to free NHS care, not just those of a particular appearance or accent.⁵

An important exemption is that a “continuing course of treatment” cannot be charged for. In other words, the NHS cannot charge a patient for the rest of the course of a treatment if the patient was exempt for charging when the treatment was begun. This might be relevant, for example, for a person who began treatment while claiming asylum, but whose claim has now been rejected and who is not eligible for ‘section 4’ support from the UKBA.⁶

In other words, a course of treatment that was begun before the asylum claim was refused must be continued, free of charge. But the patient would not be eligible to begin a new course of treatment.

“Course of treatment” is not defined in the legislation. In the case of HIV, it has usually been considered to include regular monitoring and blood tests, not just taking antiretroviral medication. In other words, free ARV treatment could be begun after the individual’s asylum claim was rejected, as long as he or she began to be monitored while the asylum claim was still being considered.

Continuity of care for asylum seekers

Asylum seekers’ uninterrupted access to antiretroviral medication and health care can sometimes also be threatened by the dispersal process, removal from the UK and by being held in immigration detention.

These issues are addressed in two publications from NAT (National AIDS Trust) and BHIVA (British HIV Association):

• The dispersal process for asylum seekers living with HIV: advice for healthcare and voluntary sector professionals, 2006.
• Detention, removal and people living with HIV: advice for healthcare and voluntary sector professionals, 2009.

Available online at: www.nat.org.uk

Department of Health guidance notes that withholding “immediately necessary” treatment could be in breach of the Human Rights Act.⁷ As such, it cannot be withheld, even if the patient is chargeable and unlikely to be able to pay the cost of the treatment.

The Department of Health guidance makes a distinction between “immediately necessary treatment”, “urgent treatment” and “non-urgent treatment”. The table below summarises the guidance on this topic.

The guidance says that “only clinicians can make an assessment as to whether a patient’s need for treatment is immediately necessary, urgent or non-urgent”. Overseas visitors managers and other non-clinical staff must not make these decisions.

The guidance explicitly states that all maternity treatment is considered to be “immediately necessary”. This includes all routine antenatal treatment.⁸

A doctor’s judgement that a patient’s treatment is immediately necessary, especially when the patient is unlikely to be able to return to their country for the foreseeable future, is often key in allowing a patient to access treatment.

The guidance acknowledges that in relation to undocumented migrants and refused asylum seekers, there may be circumstances beyond their control which affect their ability to return to their country. In such cases, urgent or immediately necessary treatment should not be delayed or curtailed.

So, if treatment is “immediately necessary”, what should the hospital do? The guidance says:

“Relevant NHS bodies must always provide treatment which is classed as immediately necessary by the treating clinician irrespective of whether or not the patient has been informed of, or agreed to pay, charges, and it must not be delayed or withheld to establish the patient’s chargeable status or seek payment.”⁹

As noted above, failure to provide such treatment would be unlawful under the Human Rights Act.

For urgent treatment, NHS bodies are instructed to collect a deposit equivalent to the estimated full cost of treatment before treatment begins. But if it is not possible to secure payment, treatment should not be cancelled or delayed.¹⁰

The regulations specify that no charge can be made for:

• Treatment at a casualty or accident & emergency department
• Emergency treatment provided at a walk-in centre
• Treatment for tuberculosis, viral hepatitis, malaria, yellow fever and several other infectious diseases
• Treatment for sexually transmitted infections, including HIV
• Treatment provided to those detained under the Mental Health Act 1983
• Family planning services (i.e. contraception, but not termination of pregnancy).

While treatment within an accident & emergency department is free, if the patient is then transferred and treated in a different hospital department, this treatment may be chargeable.¹¹