Ending hospital detention for non-payment of bills: legal and health financing policy options

In alphabetical order : David Clarke Aurelie Klein Inke Mathauer Aurelie Paviza HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY NOTE ENDING HOSPITAL DETENTION FOR NON-PAYMENT OF BILLS: LEGAL AND HEALTH FINANCING POLICY OPTIONS © Copyright World Health OrganizaƟ on 2020 Some rights reserved. This work is available under the CreaƟ ve Commons AƩ ribuƟ on-NonCommercial- ShareAlike 3.0 IGO licence (CC BY-NC-SA 3.0 IGO; hƩ ps://creaƟ vecommons.org/licenses/by-nc-sa/3.0/ igo). Under the terms of this licence, you may copy, redistribute and adapt the work for non-commercial purposes, provided the work is appropriately cited, as indicated below. In any use of this work, there should be no suggesƟ on that WHO endorses any specifi c organizaƟ on, products or services. The use of the WHO logo is not permiƩ ed. If you adapt the work, then you must license your work under the same or equivalent CreaƟ ve Commons licence. 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The menƟ on of specifi c companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by WHO in preference to others of a similar nature that are not menƟ oned. Errors and omissions excepted, the names of proprietary products are disƟ nguished by iniƟ al capital leƩ ers. All reasonable precauƟ ons have been taken by WHO to verify the informaƟ on contained in this publicaƟ on. However, the published material is being distributed without warranty of any kind, either expressed or implied. The responsibility for the interpretaƟ on and use of the material lies with the reader. In no event shall WHO be liable for damages arising from its use. Ending hospital detenƟ on for non-payment of bills: legal and health fi nancing policy opƟ ons/ David Clarke, Aurelie Klein, Inke Mathauer, Aurelie Paviza ISBN 978-92-4-000883-0 (electronic version) ISBN 978-92-4-000884-7 (print version) Key messages Acknowledgments 1. Introduction and purpose 2. Hospital detention is a human rights violation and contrary to UHC objectives 3. Hospital detention reveals weaknesses in legal systems 3.1. International law prohibits hospital detention for non-payment of bills 3.2. Domestic laws insuffi ciently implement international human rights 3.3. Implementation problems and knowledge gaps 4. Hospital detention reveals weaknesses in health fi nancing systems 4.1. Weak revenue raising, pooling and purchasing arrangements 4.2. Inadequate funding of health providers 4.3. Inadequate user fee exemption mechanisms 5. Legal measures to end hospital detention 5.1. Prohibiting the practice of hospital detention 5.2. Additional legal and regulatory measures 5.3. Implementing and enforcing laws 5.4. Informing all stakeholders and establishing reporting mechanisms 6. Health fi nancing options to prevent and address uncompensated care 6.1. Exploring short-term health fi nancing measures 6.2. Engaging in comprehensive health fi nancing system reforms 7. Conclusion: hospital detention must end References iv iv 1 3 4 4 5 6 7 7 7 8 9 9 10 10 11 12 12 14 17 19 CONTENTS iii This document was prepared by (in alphabeƟ cal order) David Clarke, Aurélie Klein, Inke Mathauer and Aurélie Paviza of the Health Systems Governance and Financing department, WHO headquarters. The authors would like to thank Kadai Oumar Abatcha, Selassi D’Almeida, Georgina Bonet Arroyo, Moussa Bizo, Amédée Prosper Djiguimde, Kingsley Addai Frimpong, Aboubacar Inoua, Solomon SiƟ nadziwe Kagulura, Brendan Kwesiga, Tebogo Madidimalo, Maximillian Kassan Mapunda, Regina Munyiva Mbindyo, Ahamada Msa Mliva, Hubert Wang and FaƟ mata Zampaligre for their insights on country situaƟ ons. Valuable comments from Fahdi Dkhimi, Alicia Ely Yamin, Kenneth Munge Kabubei and Susan Sparkes are gratefully acknowledged. We also thank colleagues from the Health Systems Governance and Financing department for useful suggesƟ ons and feedback during a departmental review meeƟ ng. WHO gratefully acknowledges the fi nancial support received from the United Kingdom Department for InternaƟ onal Development (DFID), the Universal Health Coverage Partnership and the German InternaƟ onal CooperaƟ on through the Sector IniƟ aƟ ve Universal Health Coverage. ACKNOWLEDGMENTS iv Key messages • The posiƟ on of the World Health OrganizaƟ on (WHO) is that no person should be detained in a hospital against their will for non-payment of bills and user fees. Nor should the remains of a deceased paƟ ent be withheld and not released for unpaid hospital bills and user fees. • The pracƟ ce of hospital detenƟ on for non-payment of bills is contrary to internaƟ onal human rights laws and to universal health coverage (UHC) objecƟ ves. • Defi cits in the legal system and weaknesses in the health fi nancing system can lead to uncompensated care. • Legal opƟ ons are available to end the pracƟ ce of hospital detenƟ on for non-payment of bills and user fees, including: prohibiƟ ng the pracƟ ce of hospital detenƟ on; recognizing internaƟ onal human rights in naƟ onal legislaƟ on; commiƫ ng to UHC in domesƟ c laws; ensuring proper implementaƟ on and enforcement mechanisms; and establishing informaƟ on and reporƟ ng mechanisms. • There are short-term measures to address and prevent uncompensated care at the level of health care providers, including: mobilizing addiƟ onal funding; creaƟ ng a specifi c fund to cover high-cost treatments; expanding, adjusƟ ng or reviewing exisƟ ng user fee exempƟ on mechanisms; and adjusƟ ng enrolment condiƟ ons of exisƟ ng health insurance schemes. In the long term, more substanƟ ve health fi nancing reforms will be needed. • Much greater aƩ enƟ on is required both from country policy-makers and the internaƟ onal community on the need to ban hospital detenƟ on. • It is necessary to raise public awareness on the issue of hospital detenƟ on and that the pracƟ ce is illegal. At the same Ɵ me paƟ ents have to be aware of benefi t enƟ tlements, co- payment requirements and exempƟ on policies. • The internaƟ onal community should provide specifi c support – including fi nancial resources – to countries whose people suff er from hospital detenƟ on to assist in stopping the pracƟ ce immediately. Uncounted numbers of people are detained in public and private hospitals around the world for non-payment of hospital bills, despite the fact that hospital detenƟ on is both a human rights violaƟ on and inconsistent with eff orts towards universal health coverage (UHC) (1, 2). Hospital detenƟ on for non-payment of bills occurs when hospital staff refuse to release paƟ ents aŌ er medical discharge is clinically indicated, because neither the paƟ ent nor their family can pay the bill. Another form of hospital detenƟ on is refusal by hospital staff to release the bodies of deceased paƟ ents to their families when bills remain unpaid (3). Hospital detenƟ ons have been reported in various countries for some Ɵ me (4–6). Data on hospital detenƟ on is not systemaƟ cally collected, and thus there is limited evidence on the scope and scale of the pracƟ ce and its negaƟ ve impact on paƟ ents and their families. Available Studies indicate that hospital detenƟ on occurs mainly in health systems in low- and middle-income countries. Based on the limited academic research available, Yates, Brookes & Whitaker esƟ mate that hundreds of thousands of people could be aff ected every year, mostly in specifi c countries in sub-Saharan Africa and a few countries in Asia (2). It is clear that these countries are struggling to fi nd pracƟ cal soluƟ ons to end hospital detenƟ on, despite legal provisions prohibiƟ ng the pracƟ ce and naƟ onal commitments to work towards UHC. UHC means that all people receive needed health services of suffi cient quality, without fear that access to those services will expose the user to fi nancial hardship. The objecƟ ves of UHC include uƟ lizaƟ on of health services in line with need (i.e. equitable access), quality of health services and fi nancial protecƟ on (7). The internaƟ onal community has commiƩ ed to achieving UHC as part of the 2030 Agenda for Sustainable Development (8). The purpose of this paper is to present opƟ ons to help to end the pracƟ ce of hospital detenƟ on for non-payment of bills and user fees. The paper fi rst explains why the pracƟ ce is contrary to internaƟ onal human rights laws and UHC objecƟ ves. It then explores legal and policy opƟ ons that can be applied in the short/medium term to address the underlying causes of hospital detenƟ on, as well as broader law reform eff orts to help to end the pracƟ ce. Next, the paper discusses short-term health fi nancing measures as well as broader long-term health fi nancing reform opƟ ons to prevent and address uncompensated care, with the aim to develop more sustainable fi nancing mechanisms for health services. The paper is based on a review of published arƟ cles and grey literature, including press arƟ cles, idenƟ fi ed by searching PubMed and Google using the search term “hospital detenƟ on”. The literature review was supplemented with insights from WHO policy advisory and technical work on health fi nancing in countries, and from a 1. INTRODUCTION AND PURPOSE 1 2self-administered quesƟ onnaire to WHO country offi ces. Overall, available literature on hospital detenƟ on is scarce; very few published arƟ cles were found, and relevant informaƟ on was largely contained in newspaper reports. The paper has an implicit focus on public hospitals in relaƟ on to health fi nancing policy opƟ ons, given that many private hospitals ask for an upfront payment or deposit before admiƫ ng a paƟ ent. The paper does not explore the issue of people not seeking care due to lack of fi nancial means, nor the issue of denial of care. These issues require detailed exploraƟ on in a separate paper. HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF 2. HOSPITAL DETENTION IS A HUMAN RIGHTS VIOLATION AND CONTRARY TO UHC OBJECTIVES 3 DetenƟ on periods can vary greatly from days to months and, in rare cases, to more than a year (4, 9). There are reports of detained paƟ ents being locked in a room or handcuff ed to a bed. Detainees oŌ en have to rely on their families, or begging, for food (9, 10). There are also reports of highly abusive and degrading treatment during detenƟ on (2), including sexual abuse and psychological harm (3). For example, it has been reported that women have been pressured to have sex with hospital staff in exchange for cash to pay bills. (2). Hospital detenƟ on also has serious ramifi caƟ ons from a clinical viewpoint. It negaƟ vely impacts on the physical and/or mental health of detainees by exposing them to hazards due to, for example, overcrowded hospitals and increased risk of infecƟ on. It can trigger psychological trauma because of fear, the condiƟ ons of detenƟ on and the separaƟ on from family members (3). Hospital detenƟ on directly confl icts with the objecƟ ves of UHC. It prevents paƟ ents from accessing needed health services for fear of detenƟ on, it is contrary to paƟ ent- centred quality care, it exposes paƟ ents to fi nancial hardship and, through aff ecƟ ng the most vulnerable, it is contradictory to equity in service use. Hospital detenƟ on for non- payment of bills primarily aff ects the poorest and most vulnerable populaƟ on groups which have the weakest voice. Women and children are disproporƟ onality aff ected. In the case of women, medical detenƟ on for non-payment of bills can occur for deliveries and related complicaƟ ons. Hospital detenƟ on also happens in relaƟ on to high- cost treatments, such as cancer treatment for children (5). Furthermore, the pracƟ ce of hospital detenƟ on can have a deterrent eff ect, by prevenƟ ng paƟ ents from seeking care if they do not have suffi cient means to pay for treatment. Hospital detenƟ on for non-payment of fees also creates situaƟ ons of signifi cant hardship for detainees, who face poor and degrading condiƟ ons during their forced stay. The pracƟ ce of hospital detenƟ on for non- payment of bills is contrary to internaƟ onal human rights laws. First, hospital detenƟ on contravenes a number of fundamental civil and poliƟ cal rights protected by the 1966 InternaƟ onal Covenant on Civil and PoliƟ cal Rights (ICCPR). The ICCPR guarantees specifi ed civil rights and freedoms and, together with the InternaƟ onal Covenant on Economic, Social and Cultural Rights (ICESCR), it enacts – in a binding framework – the rights outlined in the 1948 Universal DeclaraƟ on of Human Rights (11–13). Two arƟ cles from the ICCPR prohibit detenƟ on for non-payment of bills: Everyone has the right to liberty and security of person and “[n]o one shall be subjected to arbitrary arrest or detenƟ on” (arƟ cle 9(1)). Moreover, “[n]o one shall be imprisoned merely on the ground of inability to fulfi l a contractual obligaƟ on” (arƟ cle 11); this provision prohibits the deprivaƟ on of personal liberty for failure to pay a debt, either by a creditor or by the State. Second, hospital detenƟ on contravenes the right to health protected by the ICESCR. The right to the enjoyment of the highest aƩ ainable standard of physical and mental health was fi rst arƟ culated in the 1946 WHO ConsƟ tuƟ on, which defi nes health as “a state of complete physical, mental and social well- being and not merely the absence of disease or infi rmity”. The WHO ConsƟ tuƟ on further states that “the enjoyment of the highest aƩ ainable standard of health is one of the fundamental rights of every human being without disƟ ncƟ on of race, religion, poliƟ cal belief, economic or social condiƟ on”. The 1948 Universal DeclaraƟ on of Human Rights also includes health as part of the right to an adequate standard of living (arƟ cle 25). The right to health was reaffi rmed as a human right in the ICESCR in 1966 (arƟ cle 12). Since then, other internaƟ onal human rights treaƟ es have recognized or referred to the right to health or elements of it, such as the right to medical care. The right to health is relevant to all countries: every State has raƟ fi ed at least one internaƟ onal human rights treaty recognizing the right to health. Moreover, countries have commiƩ ed themselves to protecƟ ng the right to health through internaƟ onal declaraƟ ons, domesƟ c legislaƟ on and naƟ onal policies. 3. HOSPITAL DETENTION REVEALS WEAKNESSES IN LEGAL SYSTEMS 3.1. INTERNATIONAL LAW PROHIBITS HOSPITAL DETENTION FOR NON-PAYMENT OF BILLS 4 As with all internaƟ onal human rights, implementaƟ on and enforcement of the rights and enƟ tlements established by the ICCPR and the ICESR depend on legislaƟ ve and judicial acƟ on at the naƟ onal level. Through their raƟ fi caƟ on of the ICCPR and the ICESR, States parƟ es assume obligaƟ ons and duƟ es under the two covenants. Specifi cally, States parƟ es to the ICCPR are required to take the “necessary steps … to adopt such laws or other measures as may be necessary to give eff ect to the rights recognized in the present Covenant” (arƟ cle 2(2) of the ICCPR) (11). Furthermore, States parƟ es to the ICESR are required to “take steps, individually and through internaƟ onal assistance and cooperaƟ on, especially economic and technical, to the maximum of its available resources, to achieve progressively the full realizaƟ on of the rights recognized in the present Covenant by all appropriate means, including parƟ cularly the adopƟ on of legislaƟ ve measures” (arƟ cle 2(1) of the ICESR) (12). More than 70 countries recognize the right to health in their naƟ onal consƟ tuƟ ons, and a far greater number legislate various aspects of the right to access health services in their domesƟ c laws. In addiƟ on to laws that provide for the right to access health services, some countries have also passed laws or issued government direcƟ ves to expressly prohibit the pracƟ ce of hospital 3.2. DOMESTIC LAWS INSUFFICIENTLY IMPLEMENT INTERNATIONAL HUMAN RIGHTS The CommiƩ ee on Economic Social and Cultural Rights,1 General comment no. 14, states: “The right to health contains both freedoms and enƟ tlements. The freedoms include the right to control one’s health and body, including sexual and reproducƟ ve freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentaƟ on. By contrast, the enƟ tlements include the right to a system of health protecƟ on which provides equality of opportunity for people to enjoy the highest aƩ ainable level of health” (14). Hospital detenƟ on, therefore, violates the right to health as it interferes both with detainees’ right to autonomy and their enƟ tlement to equal opportunity in accessing health care. As hospital detenƟ on disproporƟ onately impacts vulnerable groups, it also follows that the pracƟ ce is inherently discriminatory and as such is in direct confl ict with the right to health. Furthermore, General comment no. 14 states that: “Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are aff ordable for all, including socially disadvantaged groups” (14). Hospital detenƟ on also contravenes the right to be free from torture and cruel, inhuman or degrading treatment, which is protected explicitly by several internaƟ onal and regional convenƟ ons. ProtecƟ on against cruel, inhuman and degrading treatment applies to treatment in health faciliƟ es (15). Being detained for non-payment of hospital bills is a degrading treatment and as such is a serious violaƟ on of this right. 1 The CommiƩ ee on Economic, Social and Cultural Rights (CESCR) is the body of independent experts that monitors implementaƟ on of the InternaƟ onal Covenant on Economic, Social and Cultural Rights by its States parƟ es. The CommiƩ ee was established under ECOSOC ResoluƟ on 1985/17 of 28 May 1985 to carry out the monitoring funcƟ ons assigned to the United NaƟ ons Economic and Social Council (ECOSOC) in Part IV of the Covenant. 5HOSPITAL DETENTION REVEALS WEAKNESSES IN LEGAL SYSTEMS detenƟ on. For example, the Philippines passed the Hospital DetenƟ on Law in 2007, which “declares that the act of detaining paƟ ents in hospitals is illegal” and introduced sancƟ ons, in the form of fi nes and/or imprisonments, for non-compliance with the law (16). Kenya is working on a new law, very similar to the Philippines law, that would ban hospital detenƟ on for non- payment of fees and impose fi nes when the law is broken. The federal government of Nigeria announced in 2016 that “hospitals did not have the right to detain paƟ ents for non-payment of hospital bills”, and Zimbabwe has issued an offi cial direcƟ ve against the detenƟ on of paƟ ents (2). Finally, courts in a number of countries have ruled that detenƟ on for non-payment of fees is arbitrary and illegal. In Kenya, for example, the courts have ruled that hospital detenƟ on is an illegal pracƟ ce and that unpaid bills are debts that should be recovered through court acƟ on and civil debt recovery processes (17). Despite the existence of internaƟ onal human rights laws and naƟ onal legislaƟ ons, the pracƟ ce of hospital detenƟ on sƟ ll persists in some countries. Several factors help to explain why legal measures are ineff ecƟ ve and insuffi cient in stopping the pracƟ ce. Some health care providers are not fully aware of their legal obligaƟ ons and seem not to know that hospital detenƟ on is illegal. Moreover, even in countries where the pracƟ ce is illegal or contrary to government policy, detainees face barriers to making complaints or seeking legal redress. Detainees are oŌ en unaware of their legal rights and have limited access to health complaints mechanisms, the courts or other means of challenging the legality of their detenƟ on (for example, through complaint to an independent offi cer such as an ombudsperson) (2). ImplementaƟ on of legal provisions also faces challenges related to dispersed governance, especially in decentralized systems. Policies and legislaƟ on made at naƟ onal level need some degree of consistent delivery at subnaƟ onal level; this can be diffi cult when subnaƟ onal governance mechanisms have a separate degree of poliƟ cal authority. A related challenge is inadequate collaboraƟ on between agencies; anything other than the simplest legal or policy measures require conƟ nuous collaboraƟ on with a host of local “downstream” implementaƟ on actors such as paƟ ent rights groups, frontline health workers and a range of local service agencies. If such collaboraƟ on does not occur, then implementaƟ on of a law prohibiƟ ng hospital detenƟ on will likely fail. 3.3. IMPLEMENTATION PROBLEMS AND KNOWLEDGE GAPS 6 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF First, the overall level of public funding for health is insuffi cient in many low- and middle-income countries due to weaknesses in revenue raising and overall budget constraints. Moreover, the share of public spending allocated to the health sector is relaƟ vely low. A low level of prepaid funding for health services goes hand-in-hand with high out-of-pocket expenditure. Second, a low level of prepayment also means low levels of pooled funds. This is oŌ en aggravated by severe fragmentaƟ on in the pooling funcƟ on, which limits redistribuƟ ve capacity and thus leads to inequitable access and inadequate fi nancial protecƟ on, in parƟ cular for lower income groups. Third, with limited prepaid and pooled funds available, budget allocaƟ ons and/ or provider payments are oŌ en insuffi cient for the provision of promised benefi ts. Moreover, line-item budget allocaƟ ons constrain providers in effi ciently using their resources according to needs and prioriƟ es. In addiƟ on, government-funded and provided health services oŌ en come with an insuffi cient or vaguely defi ned benefi t package, delays in budget release and a general disconnect between budget and needs. In short, inadequate revenue raising, pooling and purchasing arrangements lead to insuffi cient funding at provider level and/ or lack of fi nancial protecƟ on of paƟ ents. There is ample evidence for the underfi nancing of hospitals in many low- and middle-income countries (18, 19). As a result of inadequate prepaid funding, health service providers rely on direct out- of-pocket payments as an important source of revenue. Providers who receive a major share of their funding from direct payments 4.1. WEAK REVENUE RAISING, POOLING AND PURCHASING ARRANGEMENTS 4.2. INADEQUATE FUNDING OF HEALTH PROVIDERS 4. HOSPITAL DETENTION REVEALS WEAKNESSES IN HEALTH FINANCING SYSTEMS Hospital detenƟ on would not occur in a well- funcƟ oning health fi nancing system that ensures equitable access to health services and eff ecƟ ve fi nancial protecƟ on. Although this is not an explanaƟ on or a reason for the detainment of paƟ ents, the existence of hospital detenƟ on reveals signifi cant weaknesses in a health fi nancing system. 7 have limited possibiliƟ es to compensate unpaid care through other sources. Out- of-pocket payments are oŌ en the only funds over which hospitals have some discreƟ on and autonomy, either formally or informally. FaciliƟ es use these funds to cover operaƟ onal costs (for example, medical supplies) or to provide bonuses for health workers, as well as to cover night shiŌ costs or daily allowances for outreach workers. As such, health workers may have a direct interest in increasing the collecƟ on of out- of-pocket payments. Hospital detenƟ on aff ects poor or near-poor paƟ ents in parƟ cular. Compared to formal sector employees, people in the informal economy are less likely to be protected by a health insurance scheme and, therefore, their access to health services is conƟ ngent upon paying user charges directly out-of- pocket. In addiƟ on, their ability to pay such regressive user fees is also much lower (2). In various countries where user charges are in place, exempƟ on mechanisms have been introduced. These operate either ad hoc at the point of use, following an assessment by health workers of a person’s ability to pay; or, poor households are given some form of offi cial document granƟ ng exempƟ on from fees. However, this form of exempƟ on mechanism based on direct targeƟ ng oŌ en does not work well for a variety of reasons, such as a lack of clarity in policy on who is eligible, a lack of guidance on how to determine eligibility, or noncompliance with exempƟ on rules (20). Inadequate idenƟ fi caƟ on of benefi ciaries can lead to paƟ ents falling through the safety net. Likewise, people just above the threshold for exempƟ on may not benefi t and nor do they have the resources to aff ord health care or insurance premiums. More recently, a number of countries have introduced broader “free health care” policies. Such policies aim to eliminate formal fees at the point of service, either for all services (mainly at primary health care level), for selected populaƟ on groups, for selected services for everyone, or for selected services for specifi c populaƟ on groups. Selected populaƟ on groups are usually defi ned and idenƟ fi ed using medical or economic vulnerability criteria based on easily observable sociodemographic characterisƟ cs. Frequent examples of free health services include antenatal care, assisted deliveries, caesarean secƟ ons and health services for children below a defi ned age (oŌ en 5 years) (20). However, even countries with user fee exempƟ ons or a free health care policy in place have failed to prevent detenƟ on of paƟ ents unable to pay for services not included under the exempƟ on/policy (6). From the perspecƟ ve of service providers, a big concern about exempƟ on mechanisms and free health care policies is whether funds are provided to compensate for the foregone revenue from user fees, even if the overall amount collected is small. Health workers could be reluctant to grant user fee exempƟ ons or waive user charges if there is no compensaƟ on for foregone revenues (20). Moreover, lengthy procedures for compensaƟ on and exempƟ on may reinforce providers’ concerns that they will not recover their costs, as well as paƟ ents’ concerns that they will not be able to aff ord health services (2). 4.3. INADEQUATE USER FEE EXEMPTION MECHANISMS 8 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF In countries with no pre-exisƟ ng legal prohibiƟ on on hospital detenƟ on, domesƟ c laws should be passed to prohibit the pracƟ ce of detaining paƟ ents, and the bodies of paƟ ents, in hospitals for non-payment of bills. Box 1 proposes some content for a domesƟ c law to prohibit the pracƟ ce of hospital detenƟ on. 5.1. PROHIBITING THE PRACTICE OF HOSPITAL DETENTION 5. LEGAL MEASURES TO END HOSPITAL DETENTION Box 1. Proposed content to include in a law to prohibit hospital detenƟ on The law should explicitly prohibit hospital detenƟ on for fi nancial reasons. 1. The law should contain a clear defi niƟ on of the term “hospital detenƟ on for fi nancial reasons” to explicitly describe the situaƟ ons(s) where detenƟ on is unlawful. For example: “Hospital detenƟ on for fi nancial reasons means refusing to discharge a paƟ ent aŌ er medical discharge is clinically indicated, or refusing release of bodies of deceased paƟ ents, for reasons of non-payment in part or in full of hospital bills or medical expenses”. 2. The law should clearly disƟ nguish circumstances where detenƟ on in hospital may be clinically jusƟ fi ed and expressly authorized by law for public health reasons (for example, where a person is being confi ned to prevent the spread of a dangerous disease) from situaƟ ons where there is no clinical jusƟ fi caƟ on for detenƟ on. 3. The law should provide mechanisms for recourse to the courts or some other naƟ onal authority to make a determinaƟ on of whether a detenƟ on is unlawful and to provide for court-ordered release of paƟ ents, or the release of the bodies of deceased paƟ ents. This mechanism should ideally be government-funded, free-of-charge and easy for paƟ ents and their families to use, to ensure access to quick and simple redress and release. 4. The law should provide for sancƟ ons (such as fi nes) against defi ned parƟ es, hospital staff and the owners/operators of a hospital to act as a deterrent to the pracƟ ce of hospital detenƟ on. Fines should be set at a high enough level to eff ecƟ vely deter the pracƟ ce. 5. The law could include a provision that prohibits health faciliƟ es and health workers from refusing to treat paƟ ents, on fi nancial grounds, in the case of medical emergency. 9 5.2. ADDITIONAL LEGAL AND REGULATORY MEASURES 5.3. IMPLEMENTING AND ENFORCING LAWS Depending on the possibiliƟ es off ered by their legal systems, Member States should recognize internaƟ onal human rights (see secƟ on 3.1) in their naƟ onal legislaƟ on; for example, the ICCPR could be menƟ oned in a country’s consƟ tuƟ on. Through this recogniƟ on of human rights in naƟ onal laws, hospital detenƟ on will be implicitly prohibited. In addiƟ on, countries that have commiƩ ed to moving towards UHC may concreƟ ze this commitment by legislaƟ ng the right to access a defi ned set of health services. A domesƟ c law could be established to formalize access to a package of essenƟ al health services, selected in accordance with naƟ onal prioriƟ es and circumstances. Further regulatory provisions can complement these legal tools. For example, licensing requirements or contracts between service providers and public purchasers, such as health insurance agencies, can prohibit hospital detenƟ on. Such contracts may also include fi nancial and other sancƟ ons on providers, such as loss of license or contract annulment. The purchaser or the health ministry could also collaborate with the legal sector to ensure that providers are held accountable and that appropriate legal and fi nancial sancƟ ons are enforced. In some countries, legal measures already exist to prohibit hospital detenƟ on; however, the laws are not implemented or enforced and so fail to prevent detenƟ ons. This highlights the importance of not only ensuring that a well-designed law is in place, but also the need for well-resourced insƟ tuƟ ons to implement the law, to monitor ongoing compliance and to take eff ecƟ ve acƟ on to enforce the law should this be required. In addiƟ on, access to imparƟ al dispute resoluƟ on bodies and processes for paƟ ents and families is needed to help to enforce paƟ ent rights. Ensuring that such insƟ tuƟ ons, bodies and processes are in place is an SDG commitment. Member States have commiƩ ed to a legal doctrine called the rule of law under SDG target 16.3: “Promote the rule of law at the naƟ onal and internaƟ onal levels and ensure equal access to jusƟ ce for all”. Specifi c funcƟ ons of the rule of law and its relaƟ onship to development under the SDGs are increasingly recognized. The 2030 Agenda for Sustainable Development recognizes the rule of law as essenƟ al for development, as an end in itself, and as a cross-cuƫ ng enabling factor for a wide range of other development goals – including achieving UHC (target 3.8). SDG 16 promotes the rule of law, accountable insƟ tuƟ ons, inclusive decision-making, equal access to jusƟ ce for all, and public access to informaƟ on. It calls for non-discriminatory laws and policies for 10 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF 5.4. INFORMING ALL STAKEHOLDERS AND ESTABLISHING REPORTING MECHANISMS The legal measures described above need to be accompanied by informaƟ on provision to ensure that all stakeholders are aware of and know the legal situaƟ on regarding hospital detenƟ on. It is equally important to ensure that effi cient reporƟ ng and monitoring mechanisms are put in place. This might require a mulƟ sectoral approach involving, for example, social workers or local authoriƟ es outside of the health sector. Hospital supervision commiƩ ees could also play a role. Parliaments or human rights bodies can support such iniƟ aƟ ves by requesƟ ng informaƟ on and holding government and hospitals accountable. CollaboraƟ on with other actors, especially social workers and nongovernmental organizaƟ ons, can contribute to informing paƟ ents as well as to holding hospitals accountable. Finally, governments need to ensure that paƟ ents and their families have access to advice and assistance, as well as to mechanisms for reporƟ ng and resolving breaches of rights; for example, through the courts or through an independent body such as an ombudsperson. 2 SDGs 13, 14 and 15 call for acƟ on on climate change, biodiversity loss and deserƟ fi caƟ on, while other SDGs highlight the importance of planet issues to achieve goals on poverty, food security, gender, water, energy, sustainable economic growth, infrastructure, ciƟ es, sustainable consumpƟ on and producƟ on. 3 For example, see the United NaƟ ons Global Compact on the SDGs, a voluntary iniƟ aƟ ve based on companies’ commitments to implement universal sustainability principles and to take steps to support United NaƟ ons goals (hƩ ps://www. unglobalcompact.org/). sustainable development, to ensure that the SDGs leave no one behind2. Rule of law approaches focus on three main acƟ ons to strengthen laws: building legal insƟ tuƟ ons (for guiding, making, administering and enforcing laws); empowering people; and engaging non-state actors (including the private sector3) through a balanced set of rights and responsibiliƟ es formalized in law. 11LEGAL MEASURES TO END HOSPITAL DETENTION This secƟ on presents some short-term or interim health fi nancing measures to prevent uncompensated care. These approaches have been implemented in various countries with the aim of compensaƟ ng hospitals for unpaid medical bills. A combinaƟ on of several opƟ ons is possible, and may be necessary. At the same Ɵ me, wider health fi nancing reforms over the medium- and long-term will be needed (see secƟ on 6.2). In addiƟ on, and as a starƟ ng point, hospitals may discuss and off er a delayed payment schedule to paƟ ents who are unable to pay fees (the full amount) aŌ er discharge. Ideally, social workers or community health workers should support paƟ ents in this process or act as negoƟ ators of a delayed payment plan. Clearly, delayed payment is not a viable opƟ on for poor households that through the paƟ ent’s illness have had their livelihoods further constrained and been pushed deeper into poverty. One short-term health fi nancing opƟ on is to mobilize addiƟ onal hospital funding or allow hospitals to use exisƟ ng funds in a more fl exible way. Some hospitals that have been reported to detain paƟ ents receive donor funding earmarked for specifi c acƟ viƟ es; increased fl exibility in allocaƟ ng donor funds could allow the hospitals to shiŌ these resources so as to exempt paƟ ents from user charges. In Burundi, for example, fee exempƟ ons for maternity services and under-5 children were iniƟ ally funded through donor support. This policy was an explicit fi rst step towards ending hospital detenƟ on (6). In some instances, support by aid projects allowed providers to cover uncompensated care (6, 21). Aid projects that provide direct funding to hospitals should make such funding condiƟ onal upon hospital detenƟ on not being pracƟ ced. Such an approach does not, however, address any underlying causes of uncompensated care. Governments as well as individual hospitals can introduce, revive or further specify user fee exempƟ on mechanisms for vulnerable paƟ ents. Such exempƟ ons require a clear 6.1. EXPLORING SHORT-TERM HEALTH FINANCING MEASURES 6. HEALTH FINANCING OPTIONS TO PREVENT AND ADDRESS UNCOMPENSATED CARE MOBILIZING ADDITIONAL RESOURCES TO COVER HOSPITALS’ UNPAID BILLS INTRODUCING, REVIVING OR SPECIFYING USER FEE EXEMPTION MECHANISMS FOR VULNERABLE INDIVIDUALS 12 defi niƟ on of who is vulnerable and hence eligible, as well as which hospital services are eligible for exempƟ on. In the Philippines, for example, hospitals are not allowed to charge co-payments from indigent persons, who are idenƟ fi ed by the Department of Social Welfare and Development as those being unable to ensure the subsistence of their family (22, 23). Likewise, several low-income countries have introduced free health care policies with a parƟ cular focus on maternal and child health services (20). However, for user fee exempƟ ons and free health care policies to be funcƟ onal, adequate fi nancial resources need to be provided and eff ecƟ vely transferred to the facility level. Hospitals need to receive Ɵ mely and suffi cient payments not only to cover the cost of service provision, but also to avoid stock-outs of medicines. Internal cross-subsidizaƟ on can be a starƟ ng point for hospitals to fi nance user fee exempƟ ons, although scope for this may be limited as hospitals in low- and middle-income countries oŌ en face funding shortages (19). Health faciliƟ es could also, for example, receive or be required to set aside a designated budget for covering the treatment costs of paƟ ents who are unable to seƩ le their bills. AlternaƟ vely, the purchasing actor (for example, subnaƟ onal government or a unit within the health ministry) could hold and manage separate funds and introduce a specifi c claims mechanism through which providers would be compensated for exempƟ ng paƟ ents. Providers would then submit a claim to receive payment for paƟ ents that were unable to pay the user fees. In Burkina Faso, for example, a 2006 subsidizaƟ on and exempƟ on policy for maternal health services foresaw addiƟ onal funding to providers to exempt the poorest quinƟ le of women from co-payments for deliveries. Health faciliƟ es would receive compensaƟ on for these exempƟ ons through the district health authoriƟ es, based on claims submiƩ ed, although implementaƟ on challenges remained (24). An addiƟ onal policy was launched in 2009, which aimed to exempt the worst-off people from all user fees for prevenƟ ve and curaƟ ve services at government health faciliƟ es. It was considered to base fee exempƟ on on “indigence cards” issued by the social acƟ on commiƩ ee; however, idenƟ fying those eligible for or in need of exempƟ on was leŌ to service providers and based on vague criteria around paƟ ents’ livelihoods (24, 25). For this full exempƟ on approach, local health commiƩ ees were requested to reallocate revenue from other cost recovery schemes to cover the exempƟ ons, i.e. the underlying mechanism is cross-subsidizaƟ on(25). In Chad, social workers at health faciliƟ es idenƟ fy paƟ ents to benefi t from a fee exempƟ on scheme and fi ll in claim forms for reimbursement by the Ministry of Public Health; faciliƟ es are reimbursed for services and medicines provided. The iniƟ al benefi t package was launched in 2007 to cover emergency treatment (26, 27).4 Similarly, in Zambia, clinicians can refer paƟ ents who are unable to pay user charges to social workers based at government health faciliƟ es. The social workers support paƟ ents to get exempted from fee payment and help to arrange transport for them to return home once discharged. Hospitals are reimbursed by the Ministry of Health on a case-by- case basis.5 Overall, the implementaƟ on of such policies in these countries has been challenging. 4 Anecdotal evidence and observaƟ ons shared by WHO country offi ce staff , collected between March and July 2019, on the occurrence of hospital detenƟ on and remedial government measures to address the problem. 5 Anecdotal evidence and observaƟ ons shared by WHO country offi ce staff , collected between March and July 2019, on the occurrence of hospital detenƟ on and remedial government measures to address the problem. 13HEALTH FINANCING OPTIONS TO PREVENT AND ADDRESS UNCOMPENSATED CARE Another short-term health fi nancing opƟ on is to set up a specifi c fund to cover high- cost treatments and catastrophic illnesses. ArgenƟ na, Dominican Republic, Mexico, Peru and Uruguay, for example, have separate so-called catastrophic funds, fi nanced through general government contribuƟ ons, which cover a selecƟ on of high-cost treatments that are prone to rapidly create catastrophic health expenditure (28, 29). These catastrophic funds are managed by a purchasing agency which operates the claims management and payment process. This opƟ on, however, builds on the existence of a funcƟ onal purchasing agency to manage such a scheme. Clear defi niƟ ons of the illnesses and populaƟ on groups to be covered are also required, as well as a sustainable budget. Such specifi c funds also potenƟ ally increase fragmentaƟ on in pooling, which might lead to higher administraƟ ve costs or other ineffi ciencies. In countries that have a public health insurance scheme, waiƟ ng Ɵ mes for enrolment in the scheme could be waived for coverage of emergency or inpaƟ ent care for low-income paƟ ents when they newly enrol. For paƟ ents this could be aƩ racƟ ve, since a hospital bill is usually much higher than several months of insurance contribuƟ on. For paƟ ents that are eligible to benefi t from fully or parƟ ally subsidized contribuƟ ons, a hospital visit could thus provide the entry point to enrolment and help in overcoming barriers to coverage, such as lack of awareness and insuffi cient informaƟ on on insurance benefi ts. Whatever opƟ on countries choose to improve fi nancial protecƟ on and reduce fi nancial access barriers to services, it is important that policies are accompanied by sustainable budgets. Lack of Ɵ mely payments to providers will undermine the credibility of any policy and risk the support of hospitals as well as paƟ ents. Moreover, there is need to ensure that addiƟ onal allocaƟ ons to hospitals to prevent uncompensated care do not lead to an increased share of resources going to curaƟ ve care at the expense of prevenƟ ve or primary health care services. Ministries of health will have to fi nd the right balance, in their given context, to ensure that the services needed by their populaƟ on are available. PUTTING IN PLACE A SPECIFIC FUND TO COVER HIGH-COST TREATMENT ADJUSTING ENROLMENT CONDITIONS OF EXISTING HEALTH INSURANCE SCHEMES TO EXTEND COVERAGE Short-term and interim health fi nancing measures to address uncompensated care need to be accompanied by, and placed within, broader health fi nancing system reforms. Comprehensive reforms are necessary to address the health fi nancing challenges and causes of poor performance (discussed in secƟ on 4) in order to improve 6.2. ENGAGING IN COMPREHENSIVE HEALTH FINANCING SYSTEM REFORMS 14 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF First, it is necessary to improve revenue- raising policy with the aim of increasing prepaid funding in an equitable and sustainable way. Countries that have made signifi cant progress towards UHC rely predominantly on compulsory resources, i.e. taxes. Higher government spending on health is generally associated with lower out-of-pocket expenditures (30). Likewise, it is necessary to reduce fragmentaƟ on in pooling arrangements in order to increase redistribuƟ ve capacity, i.e. the potenƟ al to redistribute funds from individuals with lower health needs and lower health risks (which refers to the risk of incurring health expenditure) to individuals with higher health needs and risks. Less fragmented pooling arrangements will also reduce dependence on out-of-pocket expenditures and thus increase the share of prepaid funds in overall health spending. There are various pooling reform opƟ ons to address fragmentaƟ on (31). As a fi rst step, coverage should be made compulsory or automaƟ c for everybody. In addiƟ on, diff erent pools should be merged so that people from the informal sector are in the same pool as formal sector employees, thereby using state budget transfers to fi nance coverage extension. If merging is not possible, a new specifi c pool for vulnerable populaƟ on groups can be introduced by using budget transfers to provide full or parƟ al subsidies to contribuƟ ons. In fact, over 40 low- and middle-income countries use budget transfers to provide coverage to defi ned populaƟ on groups outside the formal sector; in half of these countries, people in the informal economy are in the same pool as contributors (32). The way in which services are purchased is decisive for how effi ciently and equitably funds for health services are used. MulƟ ple payment methods need to be aligned so as to set coherent incenƟ ves at the provider level to avoid behaviour that is non-conducive to UHC objecƟ ves, such as paƟ ent “cream skimming” and paƟ ent shiŌ ing. In other words, payment methods and rates should be the same for all people – whether they contribute or whether they benefi t from subsidized coverage. Moreover, benefi ts (including co-payments, where applicable) must be explicitly defi ned and aligned with paƟ ents’ needs and their capacity to pay. The poor are more likely to be unable to pay for high-cost emergency treatment. Adequate design of co-payments or user fees is equally important. Evidence shows that fi nancial protecƟ on is higher when co-payments are set as a fi xed amount rather than as a percentage (6, 33). As such, people know beƩ er in advance the amount that they will have to pay. Fixed, transparent RELYING ON PUBLIC FINANCE AND REDUCING FRAGMENTATION IN POOLING MAKING PURCHASING MORE STRATEGIC fi nancial protecƟ on and equity in access. Health services need to be adequately and sustainably funded by prepaid fi nancial resources. Specifi cally, health fi nancing measures that aim to miƟ gate the risk of uncompensated care need to reduce providers’ reliance on out-of-pocket payments as a major revenue source. Such medium- and long-term reforms will take Ɵ me to be implemented and to show an impact on hospitals’ funding. 15HEALTH FINANCING OPTIONS TO PREVENT AND ADDRESS UNCOMPENSATED CARE and published fee schedules inform paƟ ents of the cost of treatment and thus help to avoid informal payments. It is also essenƟ al to ensure that paƟ ents understand the benefi ts to which they are enƟ tled. To improve fi nancial protecƟ on of the most vulnerable groups, it is necessary to include a cap on co-payments and to prohibit balance billing, i.e. a provider should not be allowed to charge paƟ ents above the agreed rate of reimbursement by the purchaser. Finally, public fi nancial management rules have to allow the health ministry and purchasers to direct funding for health service provision to where it is needed. This requires predictable health budgets as well as alignment of the health fi nancing system with budget formulaƟ on and execuƟ on rules. Public fi nancial management systems also need to work eff ecƟ vely to ensure providers receive Ɵ mely payments (34). Payment methods and regulaƟ ons on the use of funds to recompensate lost revenues from exempted user charges or free health care policies must also allow for suffi cient fl exibility. A certain level of fi nancial and managerial autonomy for hospitals is criƟ cal to allow providers to use and shiŌ resources according to needs and to react to incenƟ ves set by payment methods (34). This fl exibility can allow providers to deal with uncompensated care; for example, through using savings under other cost items to cover uncompensated user fees, or through shiŌ ing uncompensated fees to the next budget year. However, increased hospital autonomy has to be accompanied by stronger accountability of providers. The hospital management team should not only follow economic consideraƟ ons, but also consider the social and public health roles of hospitals. In most country contexts, addressing uncompensated hospital care requires a bundle of health fi nancing reform measures rather than work on just one isolated aspect of reform. In Turkey, for example, a ministerial decree successfully outlawed hospital detenƟ on by ruling that outstanding bills for uncompensated care could be included in hospitals’ budget requests for the following year. Importantly, this measure was part of broader health system reform and was followed by other iniƟ aƟ ves, including consolidaƟ on of exisƟ ng health protecƟ on schemes, increased funding and improved health service purchasing modaliƟ es (35). ALIGNING PUBLIC FINANCIAL MANAGEMENT RULES HEALTH FINANCING REFORMS NEED TO BE ACCOMPANIED BY OTHER MEASURES 16 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF Hospital detenƟ on for fi nancial reasons is a serious human rights violaƟ on and should never occur. Persistence of the pracƟ ce is contrary to countries’ commitments to UHC and will put progress towards UHC at risk. Hospital detenƟ on threatens UHC because it acts as a deterrent to paƟ ents seeking care, is contradictory to paƟ ent-centred quality care, violates eff orts to ensure fi nancial protecƟ on, and is inequitable (as it disproporƟ onately aff ects the poor, mothers and children). PaƟ ents must be able to access the health services they need without fear of abusive or degrading treatment and without fi nancial burden. In summary, the legal mechanisms for prevenƟ ng hospital detenƟ on include: banning the pracƟ ce of hospital detenƟ on; fully implemenƟ ng legal measures; ensuring that countries provide legal access rights to health services and products in their consƟ tuƟ ons or naƟ onal laws; making all stakeholders aware of the legal situaƟ on related to hospital detenƟ on; and ensuring that paƟ ents and their families have access to advice, assistance and mechanisms for reporƟ ng and resolving breaches of rights (for example, through the courts or through an independent body such as an ombudsperson). Legal measures, however, will only work in the long term when accompanied with health fi nancing system reforms to address the underlying causes of uncompensated care. Countries where hospital detenƟ on takes place need to urgently engage in UHC- oriented health fi nancing reforms. However, as the eff ects of reform on hospital funding may not occur immediately, short-term measures are also required. It is clear that the feasibility of short-term opƟ ons depends on the specifi c health fi nancing context, the poliƟ cal economy around such reform, and availability of support by poliƟ cal actors. Moreover, the public needs to be aware of their benefi t enƟ tlements, co-payment requirements and referral rules, as well as of exempƟ on policies. To expand the evidence base and sƟ mulate further research, quesƟ ons on hospital detenƟ on or denial of care could be added to naƟ onal household surveys. Such surveys gather informaƟ on on out-of-pocket payments (36) and on fi nancial copings strategies to pay for health care (37, 38). Countries should explore whether such addiƟ onal quesƟ ons can be included in future naƟ onal surveys. This will also allow beƩ er idenƟ fi caƟ on of which populaƟ on groups are most aff ected by the pracƟ ce of hospital detenƟ on. In conclusion, UHC can only be achieved if paƟ ents can access the services they need without fear of abusive or degrading treatment and without fi nancial hardship. This means that paƟ ents should not have to fear being detained in a hospital, and that providers will not deny care to paƟ ents upfront. Refusal of care for paƟ ents unable to pay is a serious issue that needs to be addressed in any country that wants to progress towards UHC. 7. CONCLUSION: HOSPITAL DETENTION MUST END 17 UlƟ mately, the need to ban hospital detenƟ on should receive much greater aƩ enƟ on from naƟ onal policy-makers and the internaƟ onal community. The internaƟ onal community is equally asked to provide specifi c support, including fi nancial resources, to countries whose people suff er from hospital detenƟ on to assist in stopping the pracƟ ce immediately. Moreover, the internaƟ onal community should help countries to implement legal provisions to stop hospital detenƟ on pracƟ ces and monitor their eff ecƟ ve implementaƟ on. 18 HEALTH SYSTEMS GOVERNANCE AND FINANCING POLICY BRIEF 1. Mostert S, Lam CG, Njuguna F, Patenaude AF, Kulkarni K, Salaverria C. Hospital detenƟ on pracƟ ces: statement of a global taskforce. Lancet. 2015;386(9994):649. 2. Yates R, Brookes T, Whitaker E. Hospital detenƟ ons for non-payment of fees: a denial of rights and dignity. London: Centre on Global Health Security, The Royal InsƟ tute of InternaƟ onal Aff airs, Chatham House; 2017 (hƩ ps://www.chathamhouse.org/sites/default/fi les/publicaƟ ons/ research/2017-12-06-hospital-detenƟ ons-non-payment-yates-brookes-whitaker.pdf). 3. Mostert S, Lam C, Njuguna F, Patenaude A, Kulkarni K, Salaverria C, et al. Hospital detenƟ on pracƟ ces: posiƟ on statement of a SIOP PODC Global Taskforce. Lancet. 2015;386(9994):649. 4. Cowgill KD, Ntambue AM. 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