Tuesday, 18 May 2010

Q & A: Asylum seekers who need dialysis

Q: Dear Donal, I would be grateful for guidance on this issue. In recent years, and perhaps as a function of the proximity of Yarls Wood detention centre and Luton and Stansted airports, we are seeing increasing numbers of foreign asylum and residency seekers with established renal failure presenting for dialysis. The problem is however that these people are not entilted to full NHS services, rather what is described as 'emergency treatment' only. The PCTs wash their hands of them, the Home Office are painfully slow in processing their cases, and local Trusts unwilling to support regular dialysis. These poor people end up trailing around emergency rooms around the country, picking up ad hoc dialysis sessions on ITUs and differing renal units, until presumably they die.

We have one such woman who is on her 8th or 9th admission to a local ITU/renal unit, whose application for residency status has lasted about 18 months without any signs of progress, and to who I am not allowed to offer a regular slot. Indeed after I recently put her on our programme but she was removed last week (when her family refused to pay). I do feel strongly that we owe these people at least a basic humane level of care, if the Home Office are unable or unwilling to process their applications in a speedy fashion. This can’t be right. The ridiculous situation is that she has cost the NHS about £90K so far for less than a year - whereas to offer her regular HD would cost only circa £25K. This lady is likely to be discharged later this week and I therefore would value advice and help as soon as possible.
Thanks, Dr Paul Warwicker, Renal CD. Lister Renal Units

A: Dear Paul, foreign asylum and residency seekers with established renal failure , are exempt from charge for all hospital treatment, including dialysis, under the “NHS (Changes to Overseas Visitors) Regulations 1989”, as amended, if they have made an application for asylum, which has not yet been determined, including all appeals . This includes those applying for leave to remain under Article 3 of the European Convention of Human Rights on protection from serious harm grounds. They should receive the same level and quality of service and be subject to the same waiting lists and processes as anyone else, based on clinical need. Therefore, it is not correct to say that they are entitled to emergency treatment only.

Failed asylum seekers are not entitled to free hospital treatment, unless the service they receive is exempt (eg treatment provided inside an A&E) or, in most cases, for the continuation of a course of treatment begun whilst they were still awaiting the decision on their application. It is for a clinician to decide what constitutes a particular course of treatment such as maintenance dialysis

Those who are making other applications to remain as residents may not be exempt from charges until they have been accepted or until they have accumulated 12 months’ lawful residence whilst awaiting a decision.

However, Department of Health guidance is clear that anyone who a clinician considers to be in need of immediately necessary treatment must receive it regardless of charges, and it is usually inappropriate or impossible to request charges before treatment. Therefore, the payment is arranged after treatment, and if the person cannot pay then the debt is written off. Urgent treatment is that which, whilst not immediately necessary, cannot wait until the patient can reasonably be expected to return home. Clinicians may base their decision on whether treatment can wait on a range of factors. In many cases maintenance dialysis can be considered urgent. Trusts should take the opportunity ahead of treatment to secure deposits but if this is not possible, the treatment should go ahead. Trusts have a duty to recover charges, but can ultimately write them off if it is not reasonable to pursue them. Only when the clinician considers the need for treatment to be non-urgent should it be denied if the patient does not pay in advance.

Therefore, a clinician may well consider that the need for treatment (regular maintenance dialysis in this case) of a person, including a failed asylum seeker, who is not in a position to return home soon will be “urgent”, in that they cannot wait. As you point out this course of action may indeed be cost less than relying on repeated emergency treatments

I understand guidance on this may be redrafted and issued for consultation soon as part of a larger exercise on access to the NHS by foreign nationals. I attach a summary of the existing guidance as it relates to foreign nationals’ access to dialysis, which was circulated to all Specialised Renal Commissioners for information and to cascade to clinicians on 12 February 2010. I hope this is helpful, Donal.