Help/Discussion
On this page you can comment or discuss any problems that you have having with responding to the consultation. You can post a comment or question without logging in. You will be asked for your email addres, though this will not be posted.
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Hi Kirsten,
Thanks for your comment.
It is very important that as many individuals and organisations with an interest respond to the consultation. This indicates to the Department of Health that this is an issue of universal concern. Individuals can respond on their own and as a part of an organisation. The concerns of the individual may be a bit different than the organisation, even though broadly, they agree with the response of the organisation.
The model response is a set of one or two bullet points per question. It is a good idea to download and read the consultation document to familiarise yourself with the issues then take a look at the “areas of concern” section at the top of the website. After that, you can use the bullet points to help formulate a response.
If others have used the model response in a different way, please leave a comment and let us know how.
Best regards,
Ezinda
Hello,
my name is Kirsten Forkert. I’m involved with UCU at Goldsmiths, University of London and the Students Not Suspects campaign. I found this link through the Migrants’ Rights Network, and am concerned about how the results of the consultation might affect migrant workers and overseas students. At this point in time both are defined as ‘ordinary residents’ if they have visas lasting at least a year. But I’m concerned that this review might eventually lead to them being defined as ‘visitors’ who need to purchase health insurance (or lead to confusion that might lead to people being wrongly refused health care). One of the members of our group has already experienced this at a local clinic, due to the admin staff having the wrong information.
I’m going to suggest that members of Students Not Suspects respond to the consultation, using the model response. However, I have a couple of questions:
Would it be more effective if people responded as individuals or list themselves as members of an organisation?
Do you have any suggestions as to how people can adapt the model response highlighting these concerns (as we’re not medical professionals, we’re not that knowledgeable about the more technical aspects of the review)?
thanks
Kirsten
The contents page of the draft regs. says exceptional humanitarian protection is in Reg 13. But this heading for this regulation is seriously misleading.
Humanitarian protection is in fact included along with asylum / refugees in Reg 11.
Reg 13 is mis-titled – Reg 13 is ONLY for people who applied for and were granted entry specifically to obtain medical treatment – a type of entry visa which is exceptionally rare and difficult to get.
Children redefined
If we look at draft interpretations Reg 2(1) ‘child’ means a person who is (a) under the age of 16; and (b) a qualifying young person within the meaning of section 142 of the Social Security Contributions and Benefits Act 1992 (“child” and “qualifying young person”) or section 138 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992;
Significantly the UN Convention on the Rights of the Child, ratified by the UK government in 1991, states that a child “means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” (Article 1, Convention on the Rights of the Child, 1989) http://www.nspcc.org.uk/Inform/research/questions/definition_of_a_child_wda59396.html
In the 1989 regs the equivalent sub-para (b) included everyone under 19 who was treated as in FT education.
The amended regs redefine (b) and this appears to nibble away at that for some young people between 16 and 19.
Re Q3 your model response should address significant problems experienced over the interpretation of ‘ordinarily resident’ which defines who is, or is not, an ‘overseas visitor’ and therefore who is subject to the regulations.
The current Guidance and the slightly updated Guidance on this point are seriously inadequate for such a fundamental point determining NHS entitlements.
The statutory regulations regarding treatment rights are founded on the legal meaning of ‘ordinary residence.’ Interpretation Reg 2(1) says ” ‘overseas visitor’ means a person not ordinarily resident in the United Kingdom;” This is key – if you are ‘ordinarily resident,’ you are not an ‘overseas visitor’ and the rest of the regulations can be disregarded entirely: you have a legal entitlement to free NHS treatment.
The current Guidance and its general restatement here (4.4 – 4.10) is an opportunity missed to eradicate the most common source of complaints about entitlement and charging decisions that George House Trust has dealt with for HIV care.
The DH Guidance takes 6 paragraphs to say almost nothing of substance to help Trusts determine this entitlement.
The Guidance needs to be much more substantive and should include examples to help staff understand the various elements which are set out in the House of Lords judgment. It should also make plain that a flexible, reasonable view should be applied and the benefit of the doubt should be given.
Our experience is that clumsy and legally ignorant interpretations of ‘ordinary residence’ commonly lead to treatment charging for HIV care that are wrong in law.
This causes distress and anxiety to people who have a legal right to treatment without charge, and unnecessary wasted time and costs for the HIV community sector and for NHS Trusts in dealing with reviews of erroneous decisions.
The inadequate Guidance is reinforced by the Department itself when Trusts call the Overseas Unit for advice on this point. This has reinforced Trusts in making several legally wrong decisions, in our experience.
There is considerable evidence of a pattern here in the Guidance and the informal advice the DH Overseas Unit offers to Trusts who do ask for further clarification.
The Equality and Human Rights Commission could well decide this inadequate Guidance and the poor informal advice provided to Trusts that seek clarification would warrant formal investigation of this key point of entitlement, and of Trusts, under the Equality Act, for disability discrimination, because of the evidence of its impact on people with HIV.
Re Q4 Your model response second bullet, first box – I intend to give treatment which is immediately necessary to save the patient’s life or to prevent a condition from becoming life-threatening or prevent serious damage from occurring. Note: all maternity care is considered immediately necessary.
To this please add HIV treatment – which is the British HIV Association’s view in a letter to Dawn Primarolo, Minister of State for Public Health, dated 7 October 2008. http://www.nat.org.uk/Media%20library/Files/Policy/2010/BHIVA%20letter%20to%20Primarolo.pdf
In 3rd bullet your model response says ‘We have concerns about asking clinicians to sign an administrative form which results in patients getting inferior or no treatment. Clinicians should not be asked to sign the form and their opinion should be documented as at present.’
In the case of both maternity care and HIV treatment, this is a pointless bureaucratic exercise in busy clinical units. Above, we recommended that HIV, like maternity services, be singled out by the DH as always ‘immediately necessary’.
Q7 is left unanswered in the model response but we believe this requires a response – it affects UK pensioners living abroad who return – and there are hundreds of thousands of these.
It suggests requiring 6 months residence before entitlement to free care. However the statutory regulations regarding treatment rights are founded on the legal meaning of ‘ordinary residence.’ Interpretation Reg 2(1) says ” ‘overseas visitor’ means a person not ordinarily resident in the United Kingdom;”
Applying a 6 month maximum (reg 16 (b)) ignores the flexibility of interpretation to suit individual circumstances that the regulation’s ‘ordinary residence’ criteria allows.
The Guidance must not attempt to prescriptively interpret the law in this way.
The Guidance must follow the law. – see comments on Q3 above for more details.
Under “Other Comments” we would point to the conspicuous lack of any independent process for Reviews and Appeals.
In our experience the staff making these decisions are not effectively trained for the complexities of this work, have no legal training and this shows in the poor quality of a significant number of decisions.
Apart from attempting to persuade a Trust to informally reconsider a decision, the only way to challenge a decision is to make a formal complaint to the NHS Trust. But that does not provide for any independent review and the people dealing with NHS complaints have no expertise under these regulations nor legal training in the principles of independent reviews to enable them to carry out this quasi-judicial role .
We have learnt from experience to insist that the Overseas Patients Managers (OPM) refer our requests for decisions to be reconsidered to the Trust’s lawyers. That has normally been an effective way to resolve disputes.
The Guidance should advise OPM not to seek advice from the DH Overseas Unit but instead from Trust lawyers. Our experience is that the DH Unit is as legally ignorant as the Trust’s OPM.
20 years after the 1989 Regs were brought in and over 25 years since their predecessors of 1982, this lack of independent Reviews and Appeals is legally anachronistic – particularly for a public service right which often involves far more than a year’s welfare benefits, where people do have the right to independent reviews of entitlement by Tribunals.
Hope this helps and thanks
Chris