The Court of Appeal has ruled that hospitals have a discretion but not a legal obligation to provide treatment for refused asylum seekers.
On 30 March 2009, the Court of Appeal handed down a ruling which contained both bad and good news for refused asylum seekers. The Court allowed the Department of Health’s (DoH) appeal against Justice Mitting’s decision that hospitals must treat refused asylum seekers who have been in the UK for over a year and have complied with the conditions of their temporary admission. The case was brought by a Palestinian man, YA, whose claim to have fled through fear of Hamas had been rejected, but who could not return home as the Palestinian Authority could not provide documents and the Israeli authorities refuse as a matter of policy to enable Palestinians to return home. YA suffers from liver disease. In 2005 he was told that he needed tests for lymphatic cancer, but following a referral to the overseas patients department, he was discharged in August 2006 on the basis that he was ineligible for the treatment, as a failed asylum seeker. He was also sent a bill for £9,000 for treatment he had already received. Before the High Court hearing, the hospital agreed to treat him for free, but he continued his challenge against the guidance issued by the DoH, which suggested that the hospital had no discretion to treat him without charge.
The Court of Appeal held that, since the purpose of the NHS, according to legislation, was to improve the health of the ‘people of England’ and not ‘people in England’, this suggested the need for patients to have a legitimate connection with the country. Failed asylum seekers had authority to be ‘at large’ as an alternative to being detained, but this was an indulgence, not a right, and being at liberty by ‘grace and favour’ didn’t create the necessary foundation. But the court also held that the DoH guidance didn’t make it clear that hospitals had a discretion to provide free treatment to those with no prospect of being able to pay, nor did it identify or clarify the sort of situations where treatment should not be withheld for want of funds.
The Chief Executive of the National Aids Trust, Deborah Jack expressed disappointment with the ruling, which, she said, ‘undermines social cohesion, increases avoidable illness and death, harms vulnerable children and older people, and contributes to the spread of infectious disease’. But Adam Hundt, a solicitor from the firm Pierce Glynn, which brought the case, was glad that the court had recognised that the DoH’s guidance didn’t make clinical, economic or humanitarian sense, and called on the DoH to tell hospitals to treat patients who can’t pay and can’t return home, and not to wait until they are at death’s door.
Download a copy of the YA judgement (pdf file, 2.1mb)