sou · GZB348 · 2011-06-01 00:00:00 — The statutory regulation of dental care is, however, contained in the Dental Care Act (1985:125). Section 1 of this Act states that dental care means measures for the prevention, investigation and treat- ment of disease and injury in the oral cavity. The Inquirys remit has thus been to propose regulation re- garding health and services, including dental care, that are to be offered to asylum seekers and undocumented migrants who are staying in . As indicated above, the Inquirys remit is limited with regard to the category of persons covered. The remit only covers persons who are staying in without a permit and asylum seekers. Other aliens who are staying legally in are thus not covered by the remit. Availability of health and services for the category of persons covered by the Inquirys remit With regard to access to health and services, including dental care, for those persons who are covered by the Inquiry's remit different rules currently apply depending on the category of persons concerned. Availability of health and services for asylum seekers is governed by the Health and Care for Asylum Seekers and Others Act (2008:344, the 2008 Act) and the Communicable Diseases Act (2004:168). The 2008 Act states that asylum-seeking children, i.e. such persons below 18 years of age, are to be offered subsidised health and services to the same extent as permanently resident children (Section 5), while asylum-seeking adults, i.e. such persons over 18 years of age, are to be offered subsidised care that cannot be deferred (Section 6), including maternal health care, abortion care and counselling for contraceptives. Access to health and services, including dental care, for undocumented mi- grants is currently governed by Sections 4–6 of the 2008 Act, the Communicable Diseases Act, Section 4 of the Health and Act and Section 6 of the Dental Care Act, depending on whether the person has previously been an asylum seeker or not. It is stated in these provisions that an undocumented child (who is under the age of 18) who has been notified of a decision on refusal of entry or deportation after having applied for a permit as a refugee or a person otherwise in need of protection (i.e. who is living in hiding) is to have the same access to subsidised health and services as a permanently resident child. If the child has not previously been an asylum seeker, the child is not covered by the provisions of the 2008 Act, and instead has the same access to health and services as adult undocumented mi- grants, which follows from Section 4 of the Health and Act and Section 6 of the Dental Care Act, namely access to non-subsidised immediate care. The charges paid by permanently resident patients for the care offered are principally governed by Section 26 of the Health and Act. Undocumented patients who are not entitled to subsidised care are responsible for bearing the costs of all the care they are offered. Asylum seekers are obliged to pay health care charges according to certain regulations, defined by the government. Asylum seekers and undocumented patients in In light of the limited availability of health and services that asylum seekers and undocumented migrants currently have in , voluntary organisations operate their own clinics, which the Inquiry has chosen to designate as grey clinics, in some places around the country, where such persons are attended to as patients. These clinics are run on a non-profit basis and the care is provided free of charge to the patients. The staff at the clinics are often professionally or formerly professionally in public or private health care. Most of the care the patients need can be pro- vided at these clinics, but it has come to the attention of the In- quiry that patients are passed on to the ordinary places of work of the staff and that examinations and treatments are performed there, at a cost that is charged to the ordinary employer. Some of these clinics have contacts with certain pharmacies that assist in ensuring that these persons also have access to prescription medicines which the clinics then largely pay for. Most of the county councils in have found the existing regulation to be so unclear and difficult to interpret and relate to in day-to-day care activity that they have chosen to adopt their own guidelines on what is to apply with regard to what care asylum seekers and undocumented migrants are to be offered. In some county councils these guidelines mean that asylum seekers and un- documented migrants are given access to health and ser- vices to a greater extent than follows from the legislation. The Swedish regulation of the availability of health and services for asylum seekers and undocumented migrants has been the object of criticism both within and internationally (see section 6.3). In an inventory of problems, the Inquiry has assessed Swedish legislation on this issue as not fully complying with the inter- national commitments regarding the highest attainable standard of health for everyone that has assumed by signing inter- national conventions and agreements (see section 6.5.5). The In- quiry has also noted that in another context the Government has declared that the level of ambition must be raised for human rights to be implemented and respected in full in all the countries of the world (see section 3.3). The Inquiry has further deemed that neither does the present- day regulation fully comply with the purpose of what is prescribed in national legislation on the of records and patient safety and certain administrative principles concerning municipal activity. The latter is particularly the case in view of what has been revealed regarding the care that asylum seekers and, in particular, undocu- mented migrants receive at grey clinics run by the voluntary orga- nisations (see section 6.5.6). Finally, the Inquiry has found that the current regulation is not fully in agreement with the principles of professional ethics that apply to the health care professions, which in itself has created something that can be regarded as a working environment problem for these professional groups (see section 6.5.4). commitments on the right to the highest attainable standard of health for everyone The right to the highest attainable standard of health for everyone has long been regarded as a human right and is described in several of the relevant conventions that as a state has made a com- mitment to adhere to (see section 3.4). This right is described in particular in the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). In its interpretation of the article concerned, , Social and Cultural Rights has stated in two comments (General no. 14 and no. 20) that this right should apply to everyone who stays within the territory of a state, irrespective of legal status. has also stated that the issue of whether a state is fulfilling its commitments with regard to offering the right to the best possible health for everyone can be assessed on the basis of four different criteria, the AAAQ criteria (availability, accessibility, acceptability and quality). The Inquiry has found in its analysis (see section 6.5.5) that while health and services in can be said to meet the requirements of quality and acceptability, as well as being available to an adequate extent, the requirement of accessibility is not met with regard to asylum seekers and undocumented migrants. This applies in particular with regard to legal and economic accessibility, but also to some extent with regard to accessibility of information. The Inquiry has found, for example, that information concerning the fact that care is already available to certain undocumented children today has not always fully reached out to this group of patients. The Inquirys assessment that Swedish regulation does not fully meet international commitments is shared by the UNs former special rapporteur on the right to health, , who after a mission to in 2006 expressed criticism of on these aspects. of the Child has also expressed criticism of on the same grounds (see sec- tions 3.2 and 6.3.2). The Patient (2010:659) requires care providers to under- take work on patient safety. Act (2008:355) governs issues of information management in health care and pro- vides that a patient record with particular contents, including infor- mation on the patient's identity, must be kept during care of patients. The purpose of these provisions is, in part, to make it possible for the patient's care history to be followed so that adequate care can be provided on any particular occasion. Asylum seekers and undocumented patients who are received in public health care are in some cases unable, or unwilling, to state their identity. In the absence of access to an official personal iden- tity number or other personal identification, records have to be kept using what are known as reserve numbers, which are used for all patients whose identity cannot be immediately established, for example for patients who are unconscious and not carrying identity documents when admitted to a care facility. It has proved difficult to create appropriate documentation using this solution, and it is virtually impossible to follow up health care treatments and to trace other health care records. This also makes work on protection against communicable diseases more difficult. Activity that entails health and services being provided with- out the possibility of public inspection either of how the activity is undertaken or of the way in which public funding is used, which can be said to be the case at the grey clinics, can be described as incompatible with national legislation in several respects. This activity also means that the costs of care for asylum seekers and undocu- mented migrants to a certain, albeit small, extent are borne by the public health-care budget as a result of asylum seekers and undocu- mented patients being dealt with on the side in public health care. There are a number of objections to such activity as described above. Firstly it means that the stringent requirements for patient safety and quality that exist in relation to Swedish health and ser- vices cannot be maintained with certainty. The care offered to asylum seekers and undocumented migrants cannot be reviewed, revised and monitored, nor is it subject to the allocation of priorities that applies to "visible" health and services. Secondly, the diverse nature of the contents of local guidelines adopted by several county councils regarding the availability of care to asylum seekers and undocumented migrants means that the availability of care differs across the country, which in turn may be assumed to have an impact on the uncertainty concerning the accessibility of care for these persons, an uncertainty that can also be questioned in relation to rule of law. Thirdly, it can be questioned whether the contents of the local guidelines are entirely in agreement with the provisions concerning the general powers of the municipalities and county councils not to engage without statutory support in activity that has no connection to their members (the principle of location) or that entails the members being treated differently (the principle of equal status). Professional ethics and working environment problems Staff who work in the health and services are governed, in addition to legislation, by the rules of professional ethics (see sec- tion 2.6). These are expressed in slightly different ways by the various professional organisations that have formulated them, but a funda- mental principle common to them all is that it is the patients needs and nothing else that, after the allocation of priorities, should decide whether he or she is to receive care. The situation health and staff often find themselves in under present-day legislation, where there is a need, with regard to certain patients, to investigate the patients legal status and some- times also the patients ability to pay before proceeding to what should be regarded as the principal task of health and ser- vices, namely to alleviate and cure, has been described by several people as an ethical dilemma that can even be described as a work environment problem. The lack of clarity in present-day legislation means firstly that staff face the anxiety of risking incorrect treat- ment for the patient and secondly that the care finally provided might perhaps take place at the wrong level (see section 2.4.4.1), as it is difficult to decide which type of care the patient in question is actually to be offered under the legislation. Impact on reception of asylum seekers and regulated immigration As emphasised above, it has been stated in the interpretation of the term highest attainable standard of health for everyone that this human right applies to all persons who stay within the territory of a state, irrespective of whether they are citizens of the state or not and irrespective of whether they have a permit to stay there or not. The terms of reference state that none of the Inquiry Chairs proposals should have a negative impact on the system of the recep- tion of asylum seekers or on the inclination to stay in the country without the necessary permits. Regarding the assessment of what impact the Inquirys proposals may have on peoples future incli- nation to enter in order to receive care, such an assessment for obvious reasons contains uncertainty. The Inquiry has there- fore sought guidance, primarily in the international research on the issue, on what factors influence migration to and from a country and to what extent availability of health and services can be assumed to have the result that a person who leaves his or her home country tries to enter a certain other country (pull factor) or, if health and services are not available in the country of arrival, leaves this county (push factor), see also section 6.5. Not- withstanding the uncertainties that exist, the combined experience gained abroad, but also in in connection with previous legi- slative changes (see section 6.4.3), suggests that the availability of health and services in the country of arrival does not have any major impact either on the decision to enter a particular country or the decision to leave a country where someone is staying with- out the necessary permit. There is inherent inertia for people to voluntarily leave their country. With regard to the signal a change in the availability of Swedish health and services to asylum seekers and undocumented migrants would send, it is clear to the Inquiry that the proposed increased availability of care for certain persons on the one hand and the regulation of and conditions for the reception of asylum seekers and the migration processes on the other are two entirely separate matters, each of which must be respected on its own basis. A legally binding decision on deportation or refusal of entry must, as previously, be executed as quickly as possible. No one should be encouraged to stay in without the necessary permit. Pen- ding execution of a decision on deportation or refusal of entry, either voluntarily or by coercion, however, health and services must be available to all persons who are in . Fundamental principles underlying the Inquirys proposals In light of what has been stated above, the Inquiry has based its proposals on the following principles. 1.The legislation should be so designed that it, in a better way than at present, fully complies with the international commit- ments has made with regard to respect of human rights. Particular attention should be paid to the rights of children. 2.Availability of health and services for asylum seekers and undocumented migrants should be dictated by the prin- ciple of the highest attainable standard of health for all, which means that it is to be available, accessible, acceptable and of good quality. 3.The legislation should furthermore be designed in such a way that health and services can be operated in compliance with the ethical rules that apply to the various groups of health professionals and that no lack of clarity persists or arises with regard to accessibility of care or whether the care is undertaken in accordance with the legal principles that apply to municipal activity. 4.Availability of health care and the associated obligations and benefits should be based on equal conditions for those who stay within a county, regardless of whether they have the necessary permit to stay in the country or not. 5.All health care undertaken in the country should be carried out on the same premises and on the basis of the same require- ments for quality, documentation and possibility of supervision and other review. 6.All health and services in should be provided openly. 7.The principles for the reception of asylum seekers and regu- lated immigration shall not be subject to any change. Increased availability of care should not be interpreted as increased acceptance of staying in the country without the necessary per- mits. The remits of different authorities – such as one side and the health and services on the other – should not be mutually opposed, but the legislation should operate within the framework of these. 8.The costs that already exist for the provision of care to asylum seekers and undocumented migrants in the grey economy in health care should be made visible and the grey sector should be removed. To comply with the principles indicated above, the Inquiry pro- poses that asylum seekers and undocumented migrants, regardless of age, are to be offered subsidised health and services by the county council of the area where they are living or staying. The care should be offered to the same extent and under the same conditions as that offered to permanent residents. The Inquiry further proposes that asylum seekers and undocu- mented migrants, until the year in which they reach the age of 19, are to be offered subsidised good and complete dental care by the county council of the area where they are living or staying. Dental care is to be offered to the same extent and under the same conditions as that offered to permanent residents of equivalent age. Costs of the implementation of the Inquirys proposals Currently, the yearly cost for health care offered to asylum seekers and undocumented migrants is estimated to between 1 180 million and 1 540 million Swedish kronor. There are a number of uncertainties when it comes to estimating the cost for the implementation of the Inquirys proposals. In the report from IHE that was commissioned from the Inquiry, this cost has been calculated to a maximum of 2 200 million Swedish kronor. The added cost of the implementation of the Inquirys proposal compared to the current cost is thus estimated to a maxi- mum of 1 020 million Swedish kronor. Complete health and services for persons who are staying in In order to as far as possible tackle the problems identified in the inventory of problems, i.e. inadequate fulfilment of inter- national commitments and the aspirations contained in national legi- slation, the ethical situation for health and staff and to clear away the legal uncertainties that exist in the present-day legislation, the Inquiry thus proposes that those persons who are covered by the Inquirys remit and who are staying in should be given the same access to health and services as permanent residents. This means, in the Inquirys view, that the same conditions, that is to say the same rights and obligations, should apply to everyone. Asylum seekers and undocumented patients should thus be subject to the same allocation of priorities in health care as permanent resi- dents. They should also pay the same fees for health care received as are paid by permanently resident patients. It is anticipated that the proposal will benefit everyone in , as it means that responsible authorities will be able to obtain a more complete picture of the state of health of the whole population, preventive efforts can reach more people, and the spread of com- municable diseases can be prevented. No detraining effects for those who today are offered health and services have been antici- pated from the proposal (see also section 7.7). Dental care for persons who are staying in Dental care forms part of the health and services and the right to the best possible health for everyone. The considerations that have underpinned the Inquirys proposals with regard to avail- ability of other health and services can thus also be cited with regard to the availability of dental care. However, the Inquiry has not had the opportunity under its remit to propose rules that equate adult asylum seekers and un- documented migrants to residents with respect to availability of dental care. The principal reason for this is that the rules surroun- ding adult dental care are very detailed and not easy to apply with regard to deciding what dental care is to be offered to individuals. The present-day system also presupposes that those who seek den- tal care can be identified with certainty. The state dental care reim- bursement scheme that compensates the care providers is difficult to apply and is administered by the . The fact that the Inquiry has chosen not to present any proposal regarding adult dental care is not, however, to be interpreted as meaning that the present-day regulation fully complies with the international commitments. Inadequate fulfilment persists in this respect. The Government should therefore continue with its work on an overhaul of availability of dental care for adult asylum seekers and undocumented migrants. The regulation of dental care for permanent residents up to the year in which they reach the age of nineteen is completely different to that of adult dental care. Payments are made by the county councils, and the cost of reimbursing dental care is principally met through county council tax and government grants. It is far simpler, in terms of systems, to present proposals for increased availability of dental care for asylum seekers and undocu- mented migrants under the age of 20 than it is with regard to adult dental care. The Inquiry therefore makes such a proposal and notes that increased availability of dental care for asylum seekers and undocumented children and adolescents in any case represents a step along the way (in accordance with the principle of progressive realisation of economic, social and cultural rights) to full availability of dental care for all asylum seekers and undocumented migrants. Subsidies and health care fees for asylum seekers and undocumented migrants The Inquiry proposes that the expanded health and services that are to be offered to asylum seekers and undocumented mi- grants should be covered by the government subsidy. This applies both to expanded access to health and services and to expanded access to dental care for asylum seekers and undocumented migrants until the year in which they reach the age of 19. Com- pensation should be given costs that the proposal entails regarding care for asylum seekers. Both asylum seekers and undocumented migrants should pay a health care fee for the health care they will enjoy. A health care fee for undocumented migrants should be paid in the same way as for permanent residents. The same applies with respect to health care fees for medicines prescribed in outpatient care. On the other hand, asylum seekers should, regardless of age, be obliged to pay the fees that they pay according to the present regulation. In the same way as for permanent residents, regular complete dental care under the Dental Care Act for asylum seekers and un- documented migrants should be free of charge up to the year in which they reach the age of nineteen. No health care fee should be paid for care provided pursuant to the Communicable Diseases Act. Documentation of health care and register issues