NHS (Foreign Nationals)

Virendra Sharma Excerpts

Tuesday 22nd May 2012 Westminster Hall

[Chris Skidmore (Kingswood) (Con)]

Thank you, Mr Streeter, for calling me to speak. It is an honour to serve under your chairmanship.

I very much appreciate having the opportunity to speak on the issue of foreign nationals’ use of the NHS today. I know that it is of concern to all Members of the House, regardless of political party, because for many of us it is a huge issue for our constituents, who are genuinely concerned about the NHS, which is free at the point of use.

Obviously, the constituents I speak to accept that we should never turn away at the door anybody who is in genuine need, whether they are asylum seekers or not. Obviously, there are big public health issues and I welcome the fact that the Government have extended HIV treatment to those people in need regardless of nationality, because that will benefit the whole of our society. However, we cannot get away from the fact that there is a large issue, and one that is growing, regarding the use of NHS facilities by foreign nationals who are ineligible for free care.

As a member of the Health Committee, I am particularly concerned about this issue and I have put down several parliamentary questions, dating back to last year. The Government responded that roughly £35 million had been written off by hospital trusts, in terms of debts that had been accrued by foreign nationals and that had neither been paid back nor claimed back. The trusts involved did not include foundation trusts, so I made a freedom of information request of all trusts across the country. The data that I received back from the 118 NHS trusts that replied to me showed that just over £40 million of debt accrued by foreign nationals had been written off.

Those data also showed that there is a huge variation in relation to the collection of debt accrued by foreign nationals. The highest figure for such debt was for Guy’s and St Thomas’ NHS Foundation Trust, which had written off almost £6 million of such debt since 2004. My own local trust, North Bristol NHS Trust, had written off £1.7 million of such debt. The data showed that some trusts were acting contrary to the regulations and the current guidance, which

“place a legal obligation on the trust providing treatment to identify those patients who are not ordinarily resident in the United Kingdom; establish if they are exempt from charges by virtue of the Charging Regulations; and, if they are not exempt, make and recover a charge from them to cover the full cost of their treatment.”

That is what trusts should be doing when foreign nationals who are ineligible for free care come through their doors. However, it was clear from the information that I received in response to my FOI request that many trusts were not even collecting those data, which is contrary to the guidance. Of those trusts that were collecting the data, some had gone back to 2000 to collect them and some had gone back to 2004. There was a large variation in the data that cannot simply be explained by the fact that some trusts were more willing than others to claim back the debt that they were owed from foreign nationals.

There is anecdotal evidence, too. I have heard from some Members who wanted to be in Westminster Hall today for this debate but were unable to make it, and they asked me to raise some issues. In particular, one MP had a constituent who had come to them regarding an American visitor who was staying with them. During their holiday, the American visitor became ill and attended NHS facilities for treatment. They then contacted their medical insurer in the US, which suggested that they provide proof of the cost of their treatment; the American visitor would need a receipt from the NHS, so that they could claim back the money from their medical insurer. However, when they contacted the trust in question, they were told that no such receipt was available and the trust itself had not collected the data about the nature and cost of their treatment, even though this visitor was a foreign national and ineligible for free NHS care, and actually wanted to pay the bill because they were very grateful for the fantastic treatment that they had received. Consequently, a receipt could not be provided.

So there are examples of how trusts are clearly not following the guidance and collecting NHS debt from foreign nationals. It is particularly worrying that a 2008 survey of NHS managers suggested that a third of them did not even bother to ask patients whether they were eligible for free treatment when they arrived at hospital.

[Mr Virendra Sharma (Ealing, Southall) (Lab)]

Is the hon. Gentleman now talking about those foreign nationals who arrive here specifically to receive treatment, or those foreign nationals who come here as visitors, become ill and are then unable—for whatever reason—to pay for their treatment? We must not mix the foreign nationals with political asylum seekers, overstayers and others who, for whatever reason, live here for many years but are not eligible to receive NHS treatment. Is the hon. Gentleman mixing those two groups, or separating them?

[Chris Skidmore]

No, I am certainly not mixing them and I will come to the issue of eligibility that is defined around the term “ordinarily resident”. I want to talk about that in terms of the historic issues that determine whether foreign nationals should be charged for treatment. Obviously, there have been various reports in the past decade, including a 2007 report by the Joint Committee on Human Rights that examined services available to asylum seekers, and those reports have raised that very issue. If access to care and treatment was denied to those who are vulnerable and in genuine need of care, that would undeniably make the situation worse and cause them far greater distress and harm. In those circumstances, we have a right and a moral duty to ensure that people are treated.

On the other hand, we have what some red-top newspapers might call “health tourism”. I use that phrase with some trepidation, because the situation is certainly more complicated than that phrase implies; it suggests that people are simply flooding in across our borders to ensure that they can receive NHS treatment, and that is certainly not the case. There are eligibility criteria that apply, but my concern is that they are not being applied strictly enough by various trusts. On the back of the previous Government’s consultation on this issue, between February and June 2010, the current Government have now decided to tighten certain eligibility criteria, particularly regarding asylum seekers and specifically when asylum seekers have their right of asylum refused.

There is obviously an issue with border security as well, and I welcome the fact that the Government have introduced measures, through the Home Office, in relation to those who have left the country with unpaid debts to the NHS of more than £1,000. I put down a written question that suggested that each year there are 3,600 foreign nationals who accrue such a debt for their NHS treatment and that they should not be allowed re-entry to this country unless those debts were paid off. There is a spectrum through which one has to view who is a foreign national and who is “ordinarily resident”.

I do not deny that establishing the difference between those two groups can be very difficult and that there is a very fine balance to strike. Nevertheless, it is clear from the data that I have received in response to my FOI request that the current system is not working. If there is a situation, as there is at the moment, whereby debts are being accrued and not reclaimed, and whereby a third of NHS managers are not even asking patients whether they are eligible for free treatment or whether they are a foreign national, that is a very big issue.

In many ways, one can understand why someone working within an NHS trust would not want to ask someone about their nationality; it might simply be easier to provide treatment. That is because of the simple fact that, once someone has been categorised as a foreign national and therefore they must be charged because they are ineligible for free care, those charges must be recouped. The costs of recouping those charges could far outweigh the charges themselves.

Moreover, I do not deny that some patients will turn up at an accident and emergency department or trust with a particular complication, which becomes severely worse. For whatever reason, they happen to die and there is no way in which the charges for which they would have been liable can be recouped. All those particular situations need to be taken into account.

In the Health Committee, we looked at how different trusts operate and collect their debts, or even monitor which people coming through their doors are eligible for free care and treatment. West Middlesex University hospital has what is called a “stabilised discharge system”. If a foreign national is admitted to hospital, the doctor first establishes whether there is a need for urgent life-saving treatment, which is obviously a priority for the NHS. If that is not the case, the person is told what treatment is required and how much it costs. If they are unwilling to pay, they are asked to leave. That policy in the hospital nearest Heathrow airport has saved the hospital £700,000 in each separate year. Even within the existing guidance and criteria, there are the means and possibilities by which trusts can ensure that the criteria are followed correctly and that savings can be made. I am sure that if every trust acted in the same way as the West Middlesex University hospital, we would see the amount of debts incurred by foreign nationals drop significantly.

The hon. Member for Ealing, Southall (Mr Sharma) mentioned the criteria around a foreign national and who is and is not eligible for care. The context of this debate, as I mentioned, is an historic one. It was not until 1989 that the British Government began to require certain overseas visitors to pay for hospital treatment. That was defined in regulations in 1977, when legislation permitting persons not ordinarily resident in the United Kingdom to be charged for NHS services began to be looked at.

How we define someone who is not ordinarily resident, as opposed to someone who is ordinarily resident, is interesting. In a way, it is a common law concept, but in NHS health care legislation there is no definition of “ordinarily resident”. The only definition comes from a 1982 judgment in the House of Lords, which was actually in the context of the Education Bill that was passing through the other place at the time. The definition of “ordinarily resident” was:

“living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as ‘settled’ ”.

That means that UK citizenship and past or present payments of UK taxes or national insurance contributions, contrary to what many of our constituents might think, are not directly taken into account in the way that “ordinarily resident” has been defined.

In the review that they are currently conducting, I urge the Government to consider how we will define “ordinarily resident” in future. The NHS is a contributory system that people pay into to receive free care at the point of treatment. That is right. The NHS is free for citizens who have paid into the system. It cannot be a free-for-all for everybody to use. Our constituents wish us, as legislators, to address that concern.

It is clear that the current rules and regulations, having been addressed and re-addressed over time, have caused some confusion. In 2007, the Joint Committee on Human Rights produced a report on services to asylum seekers. It suggested that the new rules introduced in 2004 regarding asylum seekers and whether they were eligible for free care—or, once their asylum application had been turned down, whether they were still eligible for free care—caused confusion about entitlement. It suggested that the interpretation of the rules appeared to be inconsistent, and that in some cases people who were entitled to free treatment had been charged in error.

At the time, the Labour Government began a consultation looking at the use of primary care by foreign nationals using the NHS. It is clear that in acute and secondary care, charging regulations apply. The problem is that the implementation of those charging regulations has not been effective, and we need to be more stringent about the implementation of current guidance.

Currently, there are no charges for primary care, whether people are eligible or not. People can register with a GP for primary care, regardless of status. The Labour Minister at the time, in 2004, held a consultation on whether there should be charges for foreign nationals and people who were ineligible for free care. He suggested that the consultation was necessary because

“the rules about entitlement to primary care are best described as a muddle.”

I agree. In my own experience as MP for Kingswood, I have found a firm of lawyers in Bristol—Deighton Pierce Glynn—that has been writing to doctors urging them to register patients and saying that if they do not, it will take legal action, regardless of the patients’ nationality and eligibility for free care. I raised the matter in the local media, in the Bristol Evening Post. It is wrong, and I am concerned that our NHS will become a legal paradise for lawyers piggy-backing on doctors who are doing the best that they can with the resources that they have. They know that NHS resources are stretched and need to be rationed and that there is a big problem.

One lawyer responded in the Bristol Evening Post by saying that lawyers were not trying to change the law:

“We are trying to apply the law as it is. Nobody is excluded from GP treatment. It is very clear. Hospital treatment is different. People come to us when they have been refused registration with a GP. There is nothing in the law that permits them to do that. Refusing them isn’t lawful.”

This particular case concerned asylum seekers who had had their asylum applications refused. When the GP in question received the letter from Deighton Pierce Glynn, an unnamed member of staff said:

“Someone at the PCT read the letter and panicked. Do we just register everyone who is illegal?”

There is clearly confusion being stoked by certain members of the legal profession who seem to be taking advantage of the uncertainty of eligibility within primary care so that they can profit when their clients wish to apply to the NHS.

On the situation in primary care, I was interested in a question asked by the right hon. Member for Birkenhead (Mr Field) on 23 April 2012. He asked the Secretary of State for Health

“(1) what documentation a foreign national who seeks to register with a GP is required to provide;

(2) whether a foreign national on a six month visitor's visa is entitled to register with a GP;

(3) on what grounds a GP whose list has not been closed may refuse an application to register from a foreign national.”

The reply was:

“Under the terms of their existing contract, general practitioners (GPs) have discretion in accepting applications to join their lists. However, they cannot turn down an applicant on discriminatory grounds. They can only turn down an application if the primary care trust has agreed that they can close their list to new patients or if they have other reasonable non-discriminatory grounds.

There is no formal requirement to provide documentation when registering with a GP. However, many GPs, when considering applications, request proof of identity and confirmation of address, but in doing so they must not act in a discriminatory way.

A decision on whether to register a foreign national who has a six-month visitor visa is therefore currently for the GP to consider.”—[Official Report, 23 April 2012; Vol. 543, c. 701-02W.]

That raises issues. I do not like to quote Sir Andrew Green, the chairman of Migration Watch UK, but he stated:

“What this means is that someone getting off a plane with a valid visitor’s visa is, in effect, able to access the GP services of the NHS without ever having paid a penny into the system. Over one and a half million such visas were issued last year.”

Once someone is registered with a GP, the regulation and guidance mean that if they need further secondary care, it is the relevant NHS body’s duty and not the GP’s to establish the requirement for free hospital treatment. That raises the issue of the extent to which that takes place. Once someone is on the GP’s books, that is almost a rubber stamp into receiving secondary care.

I am not suggesting that GPs act as pseudo-immigration officials checking people’s eligibility for free care, but there clearly needs to be a more joined-up approach between the people who end up on GPs’ books and who are then referred by GPs to secondary care specialists, and what that then involves in terms of charging. When it comes to the issue of primary care and foreign nationals, I do not believe that foreign nationals should be entitled to free primary care. We should extend the charging regulations further.

[Mr Virendra Sharma]

I apologise; I should have congratulated the hon. Gentleman earlier on securing this debate, which is important not only to his constituents but to people all over the country, who take the issue seriously. It is also important in my constituency, where it is discussed every day.

I am a bit confused; I hope that the hon. Gentleman will clarify. He is mixing foreign nationals and those who have been here for many years. As I see it, in this debate, foreign nationals are those who come especially to register themselves for a few days, who receive treatment and who disappear without paying, due to system failures, although I will not get into that debate. For those already here, if GPs act as immigration officers or work on behalf of the UK Border Agency, that will mean health problems.

[Mr Gary Streeter (in the Chair)]

Order. Interventions should be brief.

--- Later in debate ---

[Mr Virendra Sharma (Ealing, Southall) (Lab)]

We are all proud to have such a wonderful NHS in Britain. It is a unique service compared with those available in the rest of the world. Everybody appreciates that, but at the same time we need to consider how much it costs us and how best we can improve it. This debate is not only about the NHS, but about immigration, the role of the UK Border Agency and the Home Office, and the delays in the Ministry of Justice that mean that people have to wait for years before learning whether they can stay, until which point they need the services. That is why I intervened on the hon. Member for Kingswood (Chris Skidmore) to ask which foreign nationals he was talking about. My main concern is to control those people who abuse NHS services by coming here especially to receive treatment.

Other foreign nationals, however, have been here for many years, yet their position has still not been recognised. There is no clarification about whether they are entitled or not entitled. We have all heard about GPs who have a dilemma when somebody approaches them and says, “I’m living in this area. I want to register with a GP”, but from a health service point of view, everyone must receive a good quality of health provision. We—and GPs—need to consider whether we can deny such families or individuals the ability to register. That is what needs to be clarified before we can find the solution.

Through the Minister, can we put pressure on the Minister for Immigration to ensure that the Home Office takes such cases seriously and decides on them as quickly as possible? In my experience—and I am sure that of many other Members who deal with immigration cases—people are waiting for many years for a decision. What will happen to those people? We need to clarify that point.

I did not intend to make a major speech, but I was impressed by the contributions made. I can assure the hon. Member for Kingswood that there is no question about his credibility on the subject or about there being any intention on his part to criticise an individual or a particular community. He has raised a serious issue that affects all of us in our constituencies and our lives. I hope that the Minister will note that it is not only a question of the £40 million or £60 million, but of how we can solve the problems relating to immigration and health together rather than separately.