Case 28 Under the radar

Victor M’shangwe is a 36-year-old Zimbabwean living in the United Kingdom. Mr M’shangwe is usually fit and well. Over the last 7–10 days, he has become progressively more short of breath. He has a cough productive of green phlegm and has had drenching sweats. In the last 24 hours he has developed severe pleuritic pain and attends the Emergency Department where he is seen by Dr Williams, a core trainee in Acute Care Common Stem (ACCS).

What should be the key elements of Dr Williams’ management plan?

Dr Williams takes a history from Mr M’shangwe and examines him. He has not travelled outside the UK in the last two years. She identifies bronchial breath sounds above a small pleural effusion at the right base. Mr M’shangwe has a heart rate of 90 and a systolic blood pressure of 105 mmHg. Oxygen saturations are 96% on room air and the respiratory rate is 18 min−1. His temperature is 38 °C. Dr Williams draws routine bloods, blood cultures and, considering a diagnosis of community acquired lobar pneumonia to be likely, obtains verbal consent for an HIV test. She requests a chest X-ray and prescribes a nonsteroidal anti-inflammatory drug.

Would you have acted differently?

Blood tests show a neutrophilia and a C-reactive protein (CRP) of 105. Tests of liver and renal function are within normal limits. The chest radiograph confirms consolidation in the right lower lobe and a small pleural effusion. Dr Williams explains to Mr M’shangwe that he has a lobar pneumonia. She prescribes a course of oral amoxicillin in line with local guidelines and tells Mr M’shangwe to take regular paracetamol and drink plenty of fluid in the days ahead. She explains to Mr M’shangwe that if he feels worse rather than better, he ought to return for a further assessment as an empyema may develop. She asks him to go to his GP later in the week for the results of the HIV test and blood cultures. She explains that Mr M’shangwe will be contacted by the hospital if blood cultures grow bacteria which are not responsive to amoxicillin.

At this point, Mr M’shangwe tells Dr Williams that he does not have a GP and that he is in the country illegally, an earlier application for asylum having been refused. Dr Williams agrees to contact Mr M’shangwe through a friend’s mobile telephone to provide the HIV results later in the week.

Two days later, Dr Williams looks up Mr M’shangwe’s HIV result and finds it to be positive. Before calling the patient, she asks her consultant, Dr Gupta, how she should direct Mr M’shangwe in order that he can access appropriate treatment. Dr Gupta consults with colleagues in the Trust’s GUM department and is surprised to find that the Trust is not able to provide treatment in these circumstances. A Trust policy states that long-term HIV treatment does not constitute emergency treatment and that patients can only be offered treatment where they have full eligibility to NHS care. Mr M’shangwe would be able to purchase the appropriate medications but he cannot receive them on the NHS.

Dr Williams telephones Mr M’shangwe and explains both the HIV result and the situation regarding treatment to him. She is apologetic but explains that her hands are tied. She offers advice in relation to unprotected sexual intercourse. Mr M’shangwe does not feel that he has the resources to access treatment privately.

What do you think of the trust’s stance? Is the trust acting within the law?

A fortnight later, the Trust receives a letter from a local human rights advocacy group sent on behalf of Mr M’shangwe. The letter, copied to the local commissioning group, the local MP and the Secretary of State for Health, challenges the Trust’s position on the prescription of anti-retrovirals and points out that Mr M’shangwe would not have access to treatment if he were to return to Zimbabwe and also that his HIV constitutes a potential public health threat whilst untreated in the UK.

Expert opinion

The medical aspects here are straightforward. Dr William’s treatment was appropriate. It was reasonable to have discharged Mr M’shangwe for outpatient treatment given his presentation and his low CURB-65 risk score. Lack of eligibility to NHS care is often a challenging issue to deal with from an ethical perspective, perhaps because NHS clinicians are so used to the idea of treatment free at the point of need. The legal aspect is relatively clear. Individuals can only receive NHS treatment if they are entitled to it – broadly this includes citizens of the European Union (with some caveats applying to accession countries) and those with formal refugee or asylum status. Individuals who do not have the right to remain in the country, or who are present informally ‘under the radar’ are generally not eligible for NHS treatment.

NHS Trusts may apply these rules rather more flexibly in Emergency Departments and, to an extent, sexual health clinics. In these environments, treatment is generally provided: questions of eligibility and if relevant, efforts to recoup costs through charging, are usually deferred. In outpatients, or following admission (elective or emergency), patients without entitlement should be charged for the treatment they receive. At present, there is no requirement for the NHS body to break confidentiality and inform other authorities of the presence of a patient in a hospital who does not have the right to remain. A doctor prescribing privately for a patient would not be compelled to take legal or immigration status into account.

Whilst a patient without legal right to be in the United Kingdom might be treated (perhaps against their will) for conditions such as multi-drug resistant TB, the public health argument has not been accepted in relation to HIV therapy. The patient has the ability to prevent transmission through appropriate precautions and sexual abstinence. Differential access to life saving treatments between country of origin and the United Kingdom has not, to date, been extensively supported in immigration Case Law.

Legal comment

Emergency and life-saving treatment will always be given in ED free at the point of delivery to all patients. Where the patient is not a UK resident, then under reciprocal arrangements with, for example, European Union countries or through the patient’s travel insurance, the Trust will seek reimbursement of costs of treatment. Under most travel insurance agreements, the Trust has a duty to care for the patient until fit to travel back to the country of origin.

The problems with charging for overseas visitors escalate if the patient requires ongoing chronic treatment. It is very important for the Trust to check the patient’s residential status and eligibility for free treatment when he is being considered for continued admission in hospital or for ongoing chronic treatment, e.g. dialysis for renal failure.

Article 2 of the Human Rights Act 1998, the right to life, is usually only quoted when applicants for asylum have been diagnosed with a chronic condition, and the absence of medical treatment in their country of origin is raised as a human rights issue for the authorities considering deportation.

All Trusts have an overseas patient manager, who is available to meet with patients to ascertain ability to pay and residential status (which may exempt payment).

Until recently, patients without residential legal status have not been able to access free treatment for HIV in England, despite arguments based on cost effectiveness (reduced costs compared with the subsequent treatment of AIDS) and public health (reduced potential for onward transmission). Amendments to the Health and Social Care Bill 2011 as it passed through Parliament during the course of 2012 provide for free treatment for patients who have been in the UK for over six months (irrespective of legal status). This should lead to changes in the years ahead, bringing England in line with Scotland and Wales (where free treatment for HIV is provided to patients not ordinarily eligible for NHS care).

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