Access to health care is as important as the right to access food, housing, education, and other essential services to all people, despite their cultural, racial, social or other differences, not excluding their immigration status. Access to health care is a guarantor of human dignity and worth in any society, people cannot live fulfilling lives if they suffer from physical pain, mental health issues or other problems related to their health and if support is not available. In this article I would like to look at the migrants’, more specifically asylum seekers and refugees, right to access health care services.
One may wonder why to talk about it as it is not a problem in Scotland and health care is accessible to everyone in this country? Unfortunately, lived experiences shared by members of our Just Citizens advisory panel suggested that there are issues in this area and talking about it is important as those issues cause so much trouble and have impact on peoples’ lives. Talking about it is important as I believe it can help both asylum seekers and refugees, on the one hand, and public authorities (in this case the NHS Scotland), on the other hand, to learn more about their rights and responsibilities, which hopefully can lead to a better awareness of those rights and responsibilities and consequently to allow an easier access to the NHS services. A better understanding of this right can contribute to the creation of more welcoming environment for migrants. Before start discussing this issue it is important to take the opportunity and acknowledge the hard work and dedication of the NHS staff who are working tirelessly to help people in Scotland no matter what health concerns bring them in contact with the NHS.
Legal recognition of the right to access health care services in international law
The right to access health care services is not just a moral obligation or simply a nice phrase. This right has been well established by international human rights law for many years and is discussed by many international treaties.
Article 12 of the International Covenant on Economic, Social and Cultural Rights creates obligation on a state party of this treaty to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including the creation of conditions which would assure to all medical service and medical attention in the event of sickness. United Kingdom is a state party of this international treaty, therefore, obligations provided by it are legal obligations and are binding to the UK. The right to health care is very broad and covers a range of freedoms and entitlements. The Committee on Economic, Social and Cultural Rights, which is the treaty monitoring body, stated in its General Comment No. 14 that the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health (para. 9).
The committee interprets this right as entailing the state’s obligation to ensure that health care services are accessible, which means that health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. The principle of non-discrimination in this context means that health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds, including ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS (para. 12).
It is worth mentioning that the right to health care is also recognised by other international documents such as the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, in articles 11.1 (f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and in article 24 of the Convention on the Rights of the Child of 1989.
It is also interesting to note how health and health care is described in the preamble of the Constitution of the World Health Organization: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
After looking at some international documents it is clear that the right to health care to all, without discrimination, is well recognised and established by international law.
The right of asylum seekers and refugees to access NHS services in Scotland
In the previous section of this writing I discussed access to health care services as it is established in international documents creating appropriated obligations to the state parties to ensure that those principles are implemented domestically. United Kingdom is a member state of major international treaties that are relevant in this context, therefore obligations that United Kingdom undertook by joining those international treaties create obligations to Scottish authorities too.
Principles of health care and access to the health care system in Scotland are laid down in a Charter of Patient Rights and Responsibilities which is published by the Scottish Government as it was provided by the Patient Rights (Scotland) Act 2011. The Charter ensures that people in Scotland have the right to safe and effective care and treatment that is provided at the right time, in the right place. It states that people in Scotland have the right to be treated fairly and equally and without discrimination based on age, disability, sex or sexuality, gender reassignment, marriage or civil partnership, pregnancy or maternity, race (including colour, nationality, ethnic or national background), or religion or belief. NHS patients have the right to be treated with consideration, dignity and respect when accessing and using NHS services.
The charter provides rights and obligations to both people and the NHS Scotland institutions in such areas as registration with GPs, dentists, charges for services, etc. It states that people in Scotland, including asylum seekers and refugees, are entitled to most NHS services free of charge. This includes NHS services provided by GP practices, local pharmacies, hospitals or clinics, emergency services, and NHS eye and dental examinations. However, there are some exceptions to this. For example, a person may have to pay for some services and items, such as dental treatment or glasses. If it happens that a person is expected to pay for NHS services, but they may be entitled to help covering costs of treatment or services in some cases.
People have the right to register with a GP, as above, without discrimination on any protected grounds and to be treated with dignity. Sometimes it can happen that a particular GP practice refuses to register a person as their patient, for instance, because they are not taking new patients at a particular time. If this happens then NHS National Services Scotland must find another practice. The Charter also stipulates such people’s right as the right to register with the dentist, the right to receive safe and effective care and treatment, just to mention few. The Charter can be accessed here.
Along the rights provided by the Charter it is important to mention The National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989, which specifically guarantees asylum seekers and refugees the right to access health care services in Scotland, and provides that no charge shall be made in respect of any services forming part of the health service provided for an overseas visitor.
Even though I talked a lot about international and domestic legal frameworks applied to the right to access health care, the purpose of this article is not to provide legal advice or discuss all possible aspects of this right. By writing this article I want to show that access to health care services is not only a moral right and a necessary condition for peoples’ life in dignity and respect, but also their legal right and obligation imposed on public authorities in Scotland to ensure that this obligation is fulfilled effectively. As said above, fulfilled not only in law, but also in fact, that can be seen and verified by experiences of people of Scotland, including those seeking asylum and refugees.
Certainly, there are formal and legal routes to enforce citizens’ rights, including here discussed right to health care, such as formal complaints procedures, alternative dispute resolution schemes or courts of law. However, such procedures can be very lengthy, daunting and expensive not only to individuals complaining but the public in general as well. Therefore, by writing this article I wanted to contribute to the spread of knowledge and education to both the health care system users (patients) and the health care institutions about their rights and obligations in this area. I believe that creation of an accepting and tolerant society based on respect of human dignity and human rights for all, including migrants, is more effective long term and more beneficial to all.