Melanie Phillips

11 May 2006

This moral blackmail

Published in: Daily Mail

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The case of the 29-year-old Nigerian woman who has gone to court to try to get a heart transplant on the NHS goes right to the essence of what it means to be a British citizen.

The woman, identified only as Ms A, was pregnant when she arrived in the UK last September. She came on a visitor's visa and fell ill with a serious disease of the heart muscle, for which she requires a transplant.

Government rules on 'health tourists' currently bar her from the operation because her sixmonth permission to stay expired on March 4, making her an 'overstayer' and technically liable to deportation.

But now her lawyers say that denying her a heart transplant is effectively condemning her to death, and that she is entitled to this treatment at Papworth Hospital, Cambridge, under the Human Rights Act.

The immediate and instinctive response to someone in her situation must be sympathy. The woman is not only young, not only suffering from a life-threatening condition, but is also the mother of new-born twins.

But the implications of the case she is making in court go way beyond just her individual circumstances.

For what her lawyers are essentially arguing is not only that everyone outside Britain is entitled to receive any life-saving treatment from the NHS that may be available, but that if we deny it to them, we are guilty of sentencing them to death.

If upheld, this argument would, in theory, force us to provide treatment to everyone in the world who turns up and demands it and if we did not, their deaths would be said to be on our consciences.

This is quite astounding moral blackmail, a disgraceful and oppressive coercive pressure which is being enforced by the legal bludgeon of human rights law.

Of course, medical ethics require people to be treated regardless of their circumstances if their lives are in danger. But this surely means dealing with emergencies.

Heart transplants are a very different matter. They are not available to everyone; on the contrary, because there aren't enough hearts for transplant at any one time, people have to wait their turn in a queue. Inevitably and unfortunately, people sometimes die while waiting in that queue.

What is being argued in this case is that this woman should jump that queue not only by being entitled to a transplant, but by being treated as a high-priority case -- and that human rights law means she has a right to be treated as such.

But is this right? Health care in this country is rationed because demand outstrips even the enormous sums being poured into the NHS. So apart from organ transplants, treatments for diseases ranging from breast cancer to Alzheimer's are not available to everyone who needs them.

One might argue that the rationing of health treatment is itself a bad thing. But that is the state of the system we have in this country, and it rests on the shared understanding that people wait their turn for treatment, with priority given to those with the greatest clinical need.

The court was told that there were currently 147 patients on the priority list at Papworth, 47 of whom required a joint heartand-lung transplant while 100 required just a heart transplant.

The hard fact is that if this woman is allowed to jump the queue, someone else may well die as a result.

Her lawyer's argument that denying her a transplant would sentence her to death is disingenuous. It would be more accurate to say that if the court enabled her to jump the transplant queue, a British person might be sentenced to death as a result.

And the basis on which she would be entitled to do so is one that, ultimately, has the capacity to unpick the glue that holds us together as a nation.

For it undermines the very basis on which the NHS and other services are provided -- the compact of citizenship at the heart of our society.

Citizenship means there is a relationship of obligation between a citizen and his or her country.

Citizens are entitled to what that country provides because they accept an obligation to the state by paying taxes and National Insurance and so forth, in return for which they are entitled to the services it provides. It is this compact which makes a country a coherent and cohesive society.

We have already enlarged our notion of citizenship by extending the privilege of health treatment to EU citizens, as well as to countries with which we have a reciprocal arrangement.

Some might argue that even that has weakened our social compact, but at least it is governed by a framework of treaty obligations.

But human rights law, as is being argued in this particular case, would bust wide open that compact of citizenship, tear up the notion of reciprocal obligations at its heart and substitute instead a doctrine of universal entitlement on the basis that everyone has the right to health provision -- regardless of whether or not they are a citizen.

Most would consider this both unjust and absurdly unrealistic. After all, we are not citizens of a worldwide community.

But it is being argued that denying this woman a heart transplant would amount to unfair and unlawful discrimination on the grounds of nationality. So it follows that conducting our affairs on the basis of citizenship amounts to discrimination. This is the way to destroy the very concept of a nation.

The outcome, if this argument wins the day, would be to give a huge boost to health tourism.

For even though this particular woman may have genuinely fallen ill while she happened to be in Britain, the inevitable consequences of a ruling that anyone has the 'right' to a transplant would be to encourage people to come to Britain for precisely that purpose.

According to the health authority involved, she would need to stay in Britain for a further three years after a transplant since the kind of specialist after-care that would be needed is not available in Nigeria.

The decent impulse to be hospitable to needy incomers is why all immigration issues are so difficult to deal with; how much more so when someone's health, and even life, are involved?

This is why the Government is so ambivalent about enforcing its own rules against 'health tourism'. For example, it has issued a directive to all English hospitals telling them to admit pregnant women from wherever they arrive in the world without pressing for payment.

This is clearly an invitation to women to use pregnancy as a back- door route into this country.

Other overseas patients play a similar game, knowing that staff find it extremely difficult to turn away someone who is clearly in medical need when they present themselves at the hospital door.

Health tourism costs this country hundreds of millions a year. In some inner-city areas, hospital doctors say that 20 per cent of patients are not entitled to NHS treatment -- while psychiatrists report 25 per cent to 50 per cent of acute psychiatric beds in London are occupied by people who have no right to be there.

The plight of Ms A is, indeed, a distressing one. But such hard cases, as is well known, make bad law.

We have a national health service, not an international one. Compassion is a virtue, but common sense is vital if a society is to survive.

About Melanie

Melanie Phillips is a British journalist and author. She is best known for her controversial column about political and social issues which currently appears in the Daily Mail. Awarded the Orwell Prize for journalism in 1996, she is the author of All Must Have Prizes, an acclaimed study of Britain's educational and moral crisis, which provoked the fury of educationists and the delight and relief of parents.

Read full biography


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Melanie Phillips
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