'Health tourist' in bid for heart transplant

Lawyers for a seriously-ill young Nigerian woman visiting Britain have launched a "life or death" High Court battle over her right to a heart transplant.

A judge was told the woman, who recently gave birth to twins, had become the victim of an "unjustifiable and disproportionate" Government policy aimed at deterring "health tourism".

Because of the policy the woman, "Ms A", who cannot be named for legal reasons, was being deprived of any realistic prospect of obtaining a transplant, said her counsel Jeremy Hyam.

He described how the 29-year-old was admitted to Papworth Hospital in Cambridge on March 29 having been transferred from Queen Elizabeth Hospital, Woolwich, south east London, after she became critically ill with symptoms of severe heart failure.

These occurred after giving birth to twin boys about two months earlier while staying in the Basildon area in Essex.

Mr Hyam said Ms A had entered the country last year on a visitor's visa and was lawfully in the country. Her visa has since expired.

He said: "The claimant did not come to this country seeking organ transplantation. She became severely ill two months after giving birth while a lawful visitor."

Under directions issued by the Secretary of State for Health in 2005 intended to deter "health tourism", Ms A had no realistic prospect of obtaining a heart transplant because of the priority given to UK or EU citizens, or citizens from a country with reciprocal arrangements with Britain.

Mr Hyam argued the policy was unlawfully discriminatory and breached human rights laws. It took no account of the residual discretion doctors had to treat patients "on the facts of each individual case".

Mr Justice Newman, sitting at the High Court in London, was told that Ms A's condition this morning was "very serious but stable".

She is being treated in an intensive care unit at Papworth Hospital for symptoms of severe heart failure, believed to be due to dilated cardiomyelopathy.

Her application for judicial review is being heard at an emergency hearing at extremely short notice.

Mr Hyam told the judge he did not depreciate evidence put forward by transplant doctors of the "agonisingly difficult life-and-death decisions" clinicians had to make over the people in their care.

"But once a public authority has accepted that hearts are a scarce resource and some persons in the jurisdiction of this country are going to die waiting for a heart, the question is whether you discriminate between those persons - those who live or die - on the basis of nationality or residential status.

"The question is whether that discrimination is objectively justified to meet the purported aim of deterring health tourism for organs and maintaining confidence in the transplant system in the NHS."

Mr Hyam said the case for Ms A was that policies or directions allowing such discrimination "are not rational or objectively justified and they are not proportionate".

A lawful approach was available which would allow the treatment of overseas visitors "regardless of residential status".

He argued it should be made available to non-EU citizens on the same basis as it was to EU citizens "if those visitors have not come to this country seeking treatment, or their condition which necessitates a heart transplant arises while they are visitors to this country."

My Hyam argued that a policy drawn up on that basis would strike a fair balance between the need to deter health tourism and the need to protect a person's Article 2 "right to life" under the European Convention on Human Rights.

The current policy was in breach of that right, argued Mr Hyam.

Ms A is seeking judicial review of a decision of Papworth Hospital NHS Foundation Trust not to place her on its "Group 1" list of patients for heart transplantation which her lawyers say she would be on if she were a UK or EU citizen or resident.

She is also challenging the decision of the NHS Blood and Transplant Special Health Authority not to allocate a new heart for transplant on the basis that she was a Group 1 patient.

Crucially, her lawyers also want declared unlawful the underlying 2005 Health Secretary's policy which they say discriminates unfairly and unlawfully between patients on the grounds of nationality and country of residence.

David Lock, appearing for the health authorities, told the judge there were currently 147 patients on the Group 1 list, 47 of whom required a joint heart and lung transplant, while 106 required just a heart transplant.

At the time evidence was sworn for the court hearing there were three names on the "urgent list" for transplant operations to which Ms A wanted her name added - two men from Birmingham and a 15-year-old boy from Newcastle.

Operations had now been successfully carried out on the two Birmingham cases, and this morning a child from Great Ormond Street had been added to the list, although the child was not "in competition" as it would require a child's heart.