Under the Immigration Act 2014, health professionals will have to classify the status of migrant patients and may be required to ask for payment before treatment. Bryony Hooper outlines the implications

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Access to healthcare for migrants has long been a contentious issue. The Immigration Act 2014 will lead to significant changes in who can access free NHS care and how potential charges will be levied.

The act introduced two important changes in how those from outside Europe access NHS healthcare. Under the act, only non-EEA (European Economic Area) nationals with more than five years’ residence in the UK will be able to access free NHS hospital care.

‘Those staying in the UK for a period of between six months and five years will be required to pay an “immigration health surcharge”’

Those staying in the UK for a period of between six months and five years will be required to pay an “immigration health surcharge” with their visa application fee, to cover the potential costs of any health care while in the UK.

This charge will apply to students and workers, and will be a fixed annual fee. It will enable access to both primary and secondary NHS care. The fee is likely to be in the region of £150 for students and £200 for others.

Migrant costs

In July the Department of Health published its own proposals for increasing NHS income from overseas visitors and migrants in the Visitor and Migrant NHS Cost Recovery Programme Implementation Plan 2014-16.

The changes proposed include charging for some primary care services, and accident and emergency care; increasing NHS rates for visitors; and altering the groups who are exempt from charges.

The proposals distinguish between:

  • UK residents who are entitled to free NHS hospital care;
  • those visitors from outside Europe who have paid the surcharge to entitle them to free care;
  • EEA nationals (and some others) entitled to care through reciprocal agreements between countries;
  • those groups which are exempt from charges through their status as asylum seekers, refugees and victims of human trafficking; and
  • chargeable patients

Primary care

There has previously been no legislation or statutory guidance in place to restrict access to primary care. Therefore, access to primary care has been free for all visitors, asylum seekers and refugees, as well as irregular entrants, undocumented migrants and failed asylum seekers.

‘There has previously been no legislation or statutory guidance in place to restrict access to primary care’

GPs have always had some discretion when registering patients – and often use catchment areas to determine who can access services. Under current legislation, practices cannot refuse registration on the grounds of race, religion, age, sex, sexuality or disability.

However, although the act makes no specific changes relating to GP services, the DH proposes to extend charges for some groups to include primary medical services, which would apply to pharmacy, optical and dentistry services, as well as community services.

Doctor and nurse consultations, and those services necessary to protect public health would not be subject to fees or charges.

Reciprocal agreements

There are agreements between the UK and EEA countries, as well as some additional countries such as New Zealand and Barbados, that entitle citizens to free healthcare while in the UK. There will be greater emphasis on identifying those patients that benefit from such reciprocal agreements, to ensure that payments are collected from the appropriate countries.

At present, asylum seekers, refugees and victims of human trafficking are entitled to access free NHS care, and this will not change under the new proposals.

In addition, those migrants who have been given “indefinite leave to remain” under the immigration system will be entitled to care – this is a tighter definition than used previously and will reduce the number of migrants eligible for free care.

‘There will be an increased focus on identifying whether patients are entitled to free A&E care’

There is likely to be confusion among vulnerable groups who seek care, and also those who will need to gather information to determine entitlement to care – for example, GP receptionists.

Those who fall outside these categories – for example, undocumented migrants – are currently able to access some secondary care services under the NHS.

Treatment for some communicable diseases, such as tuberculosis and measles, will remain free to everyone. This is also true for sexually transmitted infections, including HIV, family planning services and treatment under the Mental Health Act.  

Emergency care

Like GP care, A&E care has previously been free to all. The new regime will alter this, and there will be an increased focus on identifying whether patients are entitled to free care. Having to establish eligibility for treatment before providing A&E care or admitting the patient will be a new challenge for trusts.

‘Having to establish eligibility for treatment before providing care in the A&E department, or admitting the patient, will be a new challenge for trusts’

It remains to be seen how this impacts on the workload of already stretched A&E services, and whether it can be done without causing detriment to patients who need urgent treatment. 

Urgent care 

Those not entitled to free hospital care can still receive treatment before paying, if the treatment is deemed “immediately necessary” to save a life or prevent a condition from becoming immediately life threatening. This includes maternity care.

In these circumstances hospitals are obliged to provide the treatment whether or not any payment has been made, although they can later charge the patient for the treatment.

The decision about the urgency of treatment should be taken by a clinician. Failure to provide treatment could make the trust vulnerable to allegations of a breach of the Human Rights Act 1998.

‘The government also proposes to charge patients from outside the EU a tariff to increase the incentive for trusts to gather the fees’

Treatments that are considered urgent but not immediately necessary, such as surgery for benign gynaecological conditions that are causing severe symptoms, and cannot wait until the patient returns to their own country, should also be provided, whether or not the patient is able to demonstrate their ability to pay.

Trusts are, however, encouraged to take payment before the treatment starts where possible.

The government also proposes to charge patients from outside the European Union a tariff of 150 per cent for the NHS cost of treatment, to increase the incentive for trusts to gather the fees.

New responsibilities

The changes are likely to have a significant impact on an NHS that is already under huge pressures. GP practices will have to put in place new systems to identify patients in the various charging categories, and administrative staff will be required to gather information that has not previously been relevant.

The Department of Health proposes a responsibility for GPs to inform secondary care of known chargeable patients on referral, and to warn patients of the potential charges for secondary care.

‘The DH proposes a responsibility for GPs to inform secondary care of known chargeable patients on referral’

This has never been part of a GP’s responsibility and some patients are likely to refuse consent for such information to be passed on. The duties of GP practices will therefore need to be clarified, as no mention is made of this in the current proposals.

Fee collection

Any charges introduced will require a new mechanism for fee collection in general practice. Staff in GP and A&E departments will need to be familiar with the legislation and be able to enforce it without unnecessary detriment to patients’ safety or fear of allegations of discrimination. This will be difficult, and will require education and training.

Successful recouping of costs under reciprocal agreements or through the health surcharge may assist trusts financially. However, fear of alerting immigration bodies may prevent patients from coming forward, even when treatment of their condition is of benefit to public health. This could result in delayed diagnosis of conditions such as TB, HIV or even a potential case of Ebola.

‘Fear of alerting immigration bodies may prevent patients from coming forward’

GP consultations will remain free, but if investigations and further treatment require payment, GPs may find themselves unable to arrange appropriate tests, make diagnoses or treat ill patients.

The restriction on services available to patients with undiagnosed conditions is also likely to create many difficult professional and ethical dilemmas for NHS GPs.

Now that the government proposals have been published, all NHS bodies will need to monitor developments closely to remain aware of specific proposals for change. Secondary legislation will be brought in to clarify the way in which the Immigration Act changes will be implemented.

Providing fair and equitable NHS healthcare, managing resources and recovering costs appropriately without discriminating against some of the most vulnerable in our society is likely to present an ever increasing challenge.

Dr Bryony Hooper is senior medicolegal adviser at the Medical Protection Society