Failed asylum seekers and primary care

Act within the law, and let patients be your primary concern. Lucy Carter examines the ethical dilemmas surrounding failed asylum seekers, and finds out whether their healthcare needs are met

The United Kingdom, as a signatory to the 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol,¹ has acknowledged the plight of people suffering persecution in their country of residence and pledged to provide asylum to those deemed in need of protection.

During the asylum determination process, applicants are granted full access to the United Kingdom's health service, primary and secondary services. Indeed, in recognition of the particular healthcare needs of asylum seekers in the UK, a number of NHS primary care trusts have established dedicated primary medical services tailored to this group.² What though, of those whose claims for asylum are declined by the Home Office? How closely must the Home Office and the NHS align their approach to this group?

Who is a failed asylum seeker?

An applicant for asylum whose claim is rejected by the Home Office and who has exhausted all avenues of appeal against the decision is considered a "failed asylum seeker." At this point, accommodation and financial support provided by the National Asylum Support Service during the asylum determination process are withdrawn. Ineligible to seek employment, many thousands of failed asylum seekers are made destitute each year, and many depend upon charities to secure even basic food and accommodation. Failed asylum applicants might find themselves living in this uncertainty for many months or longer because "assisted returns" and enforced deportations are lengthy administrative processes, often complicated by the political and humanitarian instability in the destination country.

Access to healthcare and proposals for change

Currently, general practitioners can, at their own discretion, register failed asylum applicants as new or temporary residents. In this way, they can continue to provide care for failed asylum seekers free of charge until they are removed from the country or locality. Pending the outcome of a recent Department of Health consultation, however, this situation may be about to change.

The consultation outlines statutory changes by which failed asylum seekers will be charged for subsequent use of primary care services for the remainder of their time in England.³ The proposals aim to close loopholes in the NHS and curb the abuse of free services by "health tourists" - that is, overseas nationals entering the UK with the primary intention of gaining free treatment. Introducing these proposals, former secretary of state for health, John Hutton, asserted that "the NHS is a national institution, not an international one." But, can these measures be reconciled with a doctor's professional judgment and ethical code of practice?

Consequences for ethical practice

Ethical guidelines of the General Medical Council compel UK doctors to act within the law and under the guidance of governmental bodies but equally to "make the care of the patient your first concern."⁴ Doctors have an ethical obligation to act without prejudice in response to "clinical need" and to protect the health of their patients by seeking to alleviate suffering or distress.³ Can these obligations be wholly fulfilled when failed asylum seeking patients must be denied ongoing care unless payment well beyond their means is recouped? ^5-7 Many failed asylum seekers have significant but manageable physical and mental health needs,⁸ which may be susceptible to deterioration should free medical treatment be denied while awaiting repatriation. This raises a controversial but important question: can the duty of a doctor to patients seeking asylum legitimately outlive the process of asylum determination?

Defining genuine need

While introducing the proposals, the health minister asserted that "we will continue to meet our international obligations in providing care for genuine asylum seekers."³ But the ability of a doctor to fulfil those obligations must depend upon how one defines a genuine asylum seeker. Importantly, denial of asylum by the Home Office does not necessarily imply any gross fabrication of the applicant's testimony or any attempt at purposeful deception. The burden of proof demanded to warrant protection is difficult to meet.

Physical and psychological evidence of persecution are often difficult to document to the level of certitude demanded, and, similarly, proving acts of torture or violence to be systematic or state sanctioned rather than the product of individual recklessness poses further problems. Evaluation of the asylum determination process by the National Audit Office has highlighted weaknesses in the system, including "flawed tests of credibility," "case hardening" of staff and "basic errors of fact."⁹ There seems to be scope for sizeable discrepancy in what the Home Office and the doctor might identify as genuine. The possibility remains that some genuinely vulnerable and distressed people might be, correctly or incorrectly, declined asylum and in these people, some substantial physical and psychiatric clinical need will go unmet if the Department of Health proposals are implemented.

Barriers to effective care

Taking the considerations further, how might the proposed regulations affect the provision of services to those that we do accept as genuine? Placing asylum seekers in the category of overseas visitor falsely underplays the desperation driving many to seek asylum, and it is feared that this may propagate confusion and prejudice among both service users and healthcare staff, creating barriers to the care of asylum seekers and refugees.

Language barriers, a mistrust of authority, and fears about confidentiality are well documented obstacles to the effective care of asylum seekers in current practice.² However, the prospect of making application dependent provisos on the delivery of health care to newly arriving asylum seekers threatens to further complicate the process of establishing rapport and understanding. With the interaction between asylum seekers and primary care services perhaps becoming as transitory as this group's involvement with so many other professional bodies, the proposals could introduce new precariousness to the doctor-patient relationship forged with asylum seekers. Further ramifications on the help seeking behaviour of both new and settled asylum seekers, even when fully entitled to NHS services, has validly been anticipated.¹⁰

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Hug the hood, but dont neglect us

Public health and economic ramifications

In addition, some important public health matters and issues surrounding the role of primary care as the gatekeeper of further NHS services must not be overlooked. In the interests of public health the treatment of serious infectious diseases, including tuberculosis, will be exempted from charge.³ But it remains to be seen whether these measures will adequately tackle the risk and potential burden of infectious disease on wider public health.

Some potentially important omissions in this area are worthy of attention - for example, vaccinations, diagnostic investigations for suspected disease, and all treatment of HIV/AIDS with the exception of the diagnostic test and preliminary counselling will be subject to charges. "Emergency and immediately necessary" is a further category of care to be provided free of charge,³ though the longer term management of important chronic illnesses such as diabetes by primary care doctors will be curtailed by the regulations. The possibility that these conditions will present late to secondary medical services and be treated without charge as acute or emergency cases, like the issue of communicable disease, prompts speculation that these regulations might in fact come to be counterproductive to NHS economics.

The Department of Health's proposals to exclude overseas visitors from eligibility to free NHS primary medical services raise complex issues on balancing the use of NHS resources with international obligations to provide for those fleeing persecution. Yet acknowledging a potential fallibility of the asylum determination process, ethical, professional and humanitarian responsibilities as well as the medicopolitical debate on the impact of health tourism, might it not validly be argued that general practice is neither an equipped nor an appropriate candidate to police the use of NHS services by failed asylum seekers?

Competing Interests: None declared

I thank Andrew Keefe, specialist team, the Refugee Council, and Paul Williams, North Tees Primary Care Trust.

Lucy Carter, third year medical student, King's College London School of Medicine
Email: lucy.m.carter@kcl.ac.uk


studentBMJ 2006;14:309-352 September ISSN 0966-6494

1. United Nations High Commissioner for Refugees. The 1951 refugee convention: questions and answers. Geneva: UNHCR, 2003. www.unhcr.org/cgibin/texis/vtx/home/opendoc.pdf?tbl=BASIC S&page=basics&id=3c0f495f4 (accessed 9 Aug 2006).
2. Department of Health and the Refugee Council. Caring for dispersed asylum seekers: a resource pack. London: Department of Health. 2003. www.dh.gov.uk/assetRoot/04/05/09/ 15/04 915.pdf (accessed 9 Aug 2006).
3. Department of Health. Proposals to exclude overseas visitors from eligibility to free NHS primary medical services: a consultation. London: DoH, 2004. www.dh.gov.uk/assetRoot/04/08/22/67/04 26 7.pdf (accessed 9 Aug 2006).
4. General Medical Council. Good medical practice. London: GMC, 2001.
5. Singer R. Asylum seekers: an ethical response to their plight. Lancet 2004;363:1904.
6. Borman E. Health tourism: where healthcare, ethics and the state collide. BMJ 2004;328:60-1.
7. Williams P. Why failed asylum seekers must not be denied access to the NHS. BMJ 2004;329:298-30.
8. Burnett A, Peel M. Health needs of asylum seekers and refugees. BMJ 2001;322:544-7.
9. National Audit Office. Improving the speed and quality of asylum decisions: a report by the comptroller and auditor general. London: Stationery Office, 2004.
10. Hargreaves S, Holmes A, Friedland JS. Charging failed asylum seekers for health care in the UK. Lancet 2005;365:732-3.
11. Immigration and Nationality Directorate. Asylum fact sheet. London: Home Office, 2004. www.ind.homeoffice.gov.uk/applying/ asylumapplications/asylumfactsheet (accessed 9 Aug 2006).
12. Immigration and Nationality Directorate. Asylum applications: a brief guide. London: Home Office, 2004. www.ind.homeoffice.gov.uk/applying/asyluma pplications/asylumapplicationabriefguide (accessed 9 Aug 2006).
13. Home Office. Asylum statistics: 3rd quarter 2005 United Kingdom. London: Home Office, 2006. www.homeoffice.gov.uk/rds/pdfs05/asylumq3 05.pdf (accessed 7 Feb 2006).