HIV LEGAL CORNER
WHEN NHS CARE IS NO LONGER FREE
If you’re HIV positive and come from
aboard, you may not always be entitled to free treatment, as our lawyer explains
I’m an HIV positive man and have recently arrived in the UK
from Jamaica to live with my boyfriend. Can I get free HIV treatment on the
NHS?
You’re only entitled to free NHS treatment if you’re ‘ordinarily
resident’ in the UK. This phrase has a specific legal meaning.
Someone is ‘ordinarily resident’ if they are living lawfully in
the UK for what is known as ‘settled purposes as part of a regular order
of their life for the time being’. This is a bit of a mouthful and can
be confusing. In addition they must have ‘identifiable purpose for their
residence here which has a sufficient degree of continuity’. British
citizens, and those with permanent residency in the UK, will usually be ‘ordinarily
resident’ unless they are resident abroad and are only visiting the
UK temporarily with no intention to remain here. If you are not ‘ordinarily
resident’ then you are subject to the NHS (Charges to Overseas Visitors)
Regulations and you will have to pay for most treatments. The good news is
that these regulations set out a number of categories of people who although
not ‘ordinarily resident’ in the UK are exempt from charges.
Those exempt include people in lawful employment in the UK, those who have
resided lawfully in the UK for 12 months, full-time students in the UK, registered
asylum seekers and persons granted refugee status or what is known as ‘discretionary’
or ‘humanitarian’ leave to remain.
Claiming asylum
It is possible to submit an asylum claim stating that to remove you from the
UK would cause you to be subjected to inhuman treatment contrary to Article
3 of the European Convention on Human Rights. People with HIV have made such
applications in the past and although they are difficult to win, the applicant
is entitled to free NHS treatment while their application is being considered.
Some countries have special agreements with the UK to provide treatment to
their nationals for illnesses that arise while a person is here. Most of these
are EU states but they also include countries such as Australia, New Zealand,
Russia and a number of Eastern European countries that have not joined the
EU. Jamaica is not one of these. The responsibility falls on the NHS hospital
to establish whether a person is ordinarily resident and decide whether people
are exempt or liable for charges. A hospital is entitled to ask you to provide
evidence, such as a passport, to support any application to free treatment.
Foreign nationals liable to face difficulties accessing free NHS
hospital treatment are those here as tourists, those who have entered the
country illegally or have overstayed their visas. These include long-stay
visitors, anyone living in the UK without documentation, and anyone
refused asylum or leave to remain, but not removed from the UK.
Exceptional circumstances
But there are some circumstances when these groups of people will not have
to pay for treatment. These include when treatment is given in an A&E
department or a walk-in centre providing similar
services to an A&E department. Treatment is also free for certain communicable
diseases like tuberculosis (but not HIV). This has led, in some instances,
to people co-infected with HIV and TB having their TB treated for free but
being charged for their HIV treatment. For HIV and Aids treatment, the
first diagnosis and connected counselling session is free to all, regardless
of your immigration status but any subsequent treatment should be charged
for unless you are ordinarily resident or exempt from charges. The medical
profession has a good record of supporting HIV patients regardless of their
immigration status. But in recent years, government pressure has grown on
hospital administrators to enforce the regulations more strictly and collect
payments. Many HIV charities in the UK are currently campaigning against regulations
that deny any HIV positive in the UK free access to HIV treatment and care.
Similar regulations apply to registering with a GP. If you are not ordinarily
resident, or exempt, you will only be able to register with a GP as a private
paying patient.
Matthew Davies, solicitor, Wilson & Co. Solicitors www.wilsons-solictors.org.uk
• Department of Health guidance and policy on eligibility for
treatment www.dh.gov.uk
• This column is not intended as legal advice and should not be relied
upon as such. If you are faced with a employment problem whether similar to
the above or otherwise, your are advised to seek specialist legal advice.
