Vård som inte kan anstå – En analys av begreppet i förhållande till Sveriges internationella åtaganden om hälso- och sjukvård för papperslösa

Sammanfattning: People staying in Sweden without permit – undocumented migrants – have, according to the Act (2013:407) on health care for certain foreigners who are staying in Sweden without necessary permits, a right to receive limited health care. Among other things, Swedish regions must offer this group “care that cannot be deferred”. This wording has been criticized by medical professionals, organizations, and authorities for being difficult to define and colliding with the professional ethical requirements of health care personnel to work for good care on equal terms for all. The purpose of the essay is therefore to analyze the concept of “care that cannot be deferred” and to examine how the regulation relates to Sweden’s international commitments regarding human rights law. The questions about which care is covered by the concept of “care that cannot be deferred” and what right to health and medical care undocumented adults must be assured according to international human rights conventions, are answered by using a legal dogmatic method. An empirical method is then used to examine all the Swedish regions’ guidelines regarding the assessment of “care that cannot be deferred”. The regions’ approach is finally analyzed in relation to the requirements that can be placed on healthcare for undocumented migrants according to the national and international law presented earlier in the essay. The concept of “care that cannot be deferred” originally referred only to care for asylum-seeking migrants but came, through Act (2013:407), to also refer to undocumented migrants. This, among other things, to better fulfill Sweden’s international commitments. The care to be offered is, according to the preparatory work and authorities’ statements, not limited to emergency medical care, but also includes follow-up interventions, aids, and certain preventive treatment. The final assessment of which care is included in “care that cannot be deferred” is always placed upon the individual treating doctor. The essay’s analysis presents both pros and cons of this legislative solution. Although the right to health is a socio-economic right, its minimum level is also affected by some fundamental civil rights. Both the UN and the Council of Europe’s committees have stated that all people, regardless of irregular status, have an immediate right to healthcare if the right to life or the prohibition of torture is compromised. It is not possible to give more concrete examples of when the right to health has been violated, since it depends on both medical and social factors, including the patient’s age, economic resources, and gender. In summary, however, as a minimum level according to international human rights law, undocumented persons must be guaranteed health care that prevents serious threats to basic human rights. This care must not only refer to urgent medical care but must also extend to more general primary care. The essay concludes that Sweden’s concept of “care that cannot be deferred” meets the international minimum requirements. Finally, the regions’ replies to the empirical survey are presented and analyzed. These show that the care offered complies with national and international requirements. There is however room for improvement. Not all regions have established guidelines for the assessment of “care that cannot be deferred”, which could otherwise facilitate the fulfillment of the principles of legality and objectivity in public law. National law does not oblige the regions to actively work to spread knowledge about care for undocumented migrants among the healthcare staff, but the state must, according to its international commitments, constantly work for everyone’s right and access to the best possible health in practice. Active measures are therefore highlighted in the essay as a way to meet this state requirement.