Who is responsible for the care of asylum seekers and what if it goes wrong?

Martin Buijsen

Asylum seekers in crisis emergency housing receive poor healthcare. The staffing agency Doctor & Specialist (A&S) charges high prices for the care provided. Basic doctors are not adequately supervised and do not have the correct tools to help patients. This, and more, is revealed in a report by NRC. In addition to A&S, the Central Agency for the Reception of Asylum Seekers (COA) and the Healthcare for Asylum Seekers (GZA) play an important role in the healthcare of asylum seekers. Yet when they are informed about the prevailing problems, these organisations all point to each other. Who is responsible for the inadequate care of asylum seekers? Martin Buijsen, Professor of Health Law at Erasmus School of Law, sheds light on this issue.

"Access to healthcare is a (social) fundamental right," Buijsen begins. Asylum seekers are also entitled to healthcare. The Netherlands is bound to this right by international and European human rights treaties. "According to international human rights law, refugees are considered a vulnerable group, which means that the healthcare offered must be able to meet the specific needs of these people. Think, for example, of mental health care for the treatment of PTSD," Buijsen explains. As far as their healthcare (quality) is concerned, asylum seekers can appeal to the same laws, regulations, and standards as Dutch people, with the only difference being that they are not covered by the Health Insurance Act but by the Regulation on Medical Care for Asylum Seekers.

According to the letter of the law, asylum seekers in the Netherlands have access to healthcare. Yet practice is more complicated. The NRC report highlights several issues: Doctor & Specialist (A&S) sends young, inexperienced doctors to crisis emergency housing locations (locations set up by the Central Agency for the Reception of Asylum Seekers (COA) to provide temporary shelter for people in crisis situations), doctors are sent out without equipment such as blood pressure monitors, bandages and electronic patient files, and basic doctors receive no guidance and can only ask questions to a general practitioner over the phone.

Involved parties

Buijsen explains which parties are involved in the healthcare of asylum seekers: "The COA organises healthcare for asylum seekers, including crisis emergency housing locations and asylum seeker centres." In the health centre of these locations, a doctor - assisted by a practice assistant or nurse and a mental health care provider - provides care. The doctor can also refer to specialists or midwives. "General practitioner care in the centres is provided by Healthcare for Asylum Seekers (GZA), on behalf of the COA. GZA uses Doctor & Specialist (A&S), a healthcare staffing agency, to provide staff. A&S is currently seconding doctors to GZA," Buijsen explains.

Their liability

What if the care for asylum seekers systematically falls short? Who can be held liable in that case? Buijsen explains that firstly there may be civil liability and disciplinary liability: "GZA and the contracted healthcare providers fall under the Medical Treatment Agreement Act (Wgbo). If these healthcare providers do not act in accordance with their professional standards, resulting in damage, compensation could be claimed by or on behalf of the affected patients." Registered healthcare providers such as doctors, nurses, and psychologists are subject to disciplinary law and can receive disciplinary measures if they do not meet professional standards. According to Buijsen, serious cases can even lead to criminal liability.

"As for the Dutch state (the COA is a government agency), liability is a bit more complicated," Buijsen adds. If the Netherlands falls short in fulfilling obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), NGOs can inform the supervisory committee about this. This committee regularly reports to treaty parties on the fulfilment of state obligations. Parliaments can hold governments accountable for their omissions. "In case of serious deficiencies in healthcare for vulnerable groups, they can even be submitted to the European Court of Human Rights as a violation of protected rights under the ECHR," Buijsen explains.

What's next?

The Healthcare and Youth Inspectorate (IGJ) has the authority to oversee and enforce medical care for asylum seekers. As early as August 2022, the IGJ informed State Secretary Van der Burg (Justice and Security) and Minister Kuipers (Health, Welfare, and Sport) that care in crisis emergency reception centers was severely lacking. "Due to the exceptional circumstances, the IGJ did not decide to take measures against healthcare providers. The government has been called upon to expedite the structural arrangement of proper reception of asylum seekers, including medical care," Buijsen concludes.

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