The legal loophole that leaves thousands of people out of public health: "They treated me badly and told me they couldn't attend to me"

When Lesly was six months pregnant, she suffered a blow that caused her to fear for her health and that of her baby. This 22-year-old Colombian went to the closest hospital she had, in Palma de Mallorca, where they refused to treat her. Without registration, she was told, she was not entitled to that care. “I asked them if she could pay, but they told me no and they recommended that I go to a private clinic,” she says. The rejection is based on a legal loophole that leaves thousands of immigrants without the right to free care. The Council of Ministers has approved this Tuesday a bill that has as one of its objectives to reverse this situation.

The origins of this discrimination date back to 2012. The PP government cut the health rights of irregular immigrants, who could only be treated in the emergency room or in maternity services. When the PSOE regained power, in 2018, one of the first decrees it promoted sought to recover this assistance. Paradoxically, the rule continued to leave out thousands of people, including pregnant women and children, who had to be cared for even with the previous regulation.

The problem, says Juan Rubiño, a lawyer for the Yo Sí Sanidad Universal platform, was a recommendation document issued by the Ministry of Health itself in 2019 that maintained a bureaucratic loophole: it requests registration in Spain at least three months before for access to the free service. “This not only leaves out those who haven’t been there for that long and need attention, but also those who have been there longer and can’t prove it,” explains Rubiño.

A few months of delay can be critical. The Yo Sí platform has documented problems in accessing children, people who needed a transplant, cancer patients or pregnant women, for whom every week counts.

This is what happened to Lesly, who arrived from Colombia with her partner at the beginning of the year and already found out here that she was pregnant. They came to look for life, spend a few years and then return to Cali, her hometown, “as many do.” They landed without papers and went to Valencia, where they had some friends. “There I went to the hospital and they treated me without any problem, they didn’t ask me for anything. Two months later we moved to Palma, and I thought it would be the same. But in the closest hospital they treated me horribly and told me that if I wasn’t registered they couldn’t do anything,” she says. Through some acquaintances, the couple went to Doctors of the World, where they were referred to another hospital where they were treated “at once”, without problems and without asking for papers.

The norm in force leaves this loophole of arbitrariness. And each autonomous community manages it in its own way. There are some that have articulated it in such a way that attention is immediate. But others put endless requirements. There are no official data, but Marta Pérez, from Yo Sí, points out the Canary Islands, Castilla y León and Madrid as some where users encounter more problems. Doctors of the World, which cares for many of those who remain without assistance, adds Galicia to this list.

In Madrid, which both organizations point out as the most problematic, until the 90 days of residence are not accredited, it is not possible to start requesting the application for health care, which has another waiting list. Pérez assures that in Vallecas the delay is 176 days (in addition to three months). “This also affects children. Pediatricians come across minors who lack vaccinations, ”she assures.

The Madrid Ministry of Health has not clarified to EL PAÍS what the average wait times are for the procedure, but it assures that since the launch of the seven management units that exist, they have facilitated public health access to more than 23,000 foreigners in a situation irregular and that an octave of reinforcement has been enabled. “In the case of applicants with special needs, there is a specific procedure for making an appointment in advance, which is managed through the Social Work professionals of the Processing Units. In any case, emergency care and the continuity of HIV treatment or other medicines for hospital use are guaranteed to any citizen, regardless of their administrative situation and whether or not they have a health card, ”says a spokeswoman.

It is not what they see in Yo Sí. “The Community of Madrid has very few resources and management is completely saturated,” says Rubiño, who has dealt with several cases of rejection of health care as a lawyer. “The bloodiest”, narrates the lawyer, “was from a 21-year-old girl, a political asylum seeker, who had leukemia. She needed a bone marrow transplant that was delayed two or three months. They did it to her, but she died shortly after.”

Rubiño assures that when they go to court, they win the cases. “Some communities misinterpret the norm, it is difficult to say for what reasons, but they deny the right to health in a framework that recognizes it to all people in a very broad way. Why? Because the law is not clear and allows it, ”he reasons.

In the last four years, Doctors of the World has received 5,000 requests related to this health exclusion. “Many are serious cases,” says Nieves Turienzo, its president. Among them, 73 cancer, 53 cardiovascular, 80 diabetes, 68 acute hypertension, 28 severe respiratory diseases, 80 mental health and 77 HIV cases. “This breaks with the norm of the obligation of assistance to people who need treatment for an infectious-contagious disease. Without treatment, infections are obviously going to rise,” says Turienzo, who believes that this is just the tip of the iceberg: “There will be many other situations that we do not detect.”

The problem of access to abortion

Critical cases are those of voluntary interruptions of pregnancy. Cristina (not her real name) got pregnant last summer. Two weeks later she decided to end it. The young Argentine was 26 years old and had migrated to Spain eight months earlier, but, in the midst of the coronavirus crisis, she still had neither papers nor a job. She was not registered nor did she have a health card. In July she went to her health center in Almería to request an abortion, where she was referred to an accredited clinic. There she, not having access to public health, was told that they would charge her for the procedure, up to 500 euros. “I had absolutely nothing, I couldn’t pay for it,” she recalls. “I wanted to kill myself.”

It is a requirement that many cannot meet, according to Estefanny Molina, a lawyer and reproductive health expert at Women’s Link. “We are talking about an abortion law that recognizes the right with strict deadlines, so often trying to get the 90-day registration can cause them to miss the deadline and simply not be able to access an abortion. In that case, these women face unwanted motherhood,” she notes.

Organizations that accompany women in this situation highlight the reality of migrants trapped in prostitution or victims of sex trafficking, who sometimes become pregnant due to attacks they suffer while working as prostitutes. In 2019, Women’s Link and the Commission for the Investigation of Ill-treatment reported to the Ombudsman the “obstacles and delays” to which six migrant women without authorization to live in Spain were subjected who, between 2016 and 2018, tried to have an abortion in the Community of Madrid. Among them was a trafficked woman who was nine weeks pregnant. She waited 15 days for the health care document. When she finally got it, she was 11 weeks pregnant, close to the legal limit of 14.

Health assures that the legal modification that will reach Congress imminently will solve all these problems. But the draft, from last November, does not completely calm the organizations that fight for these rights, who believe that it will need amendments in Parliament so as not to fall into the same error as the 2018 modification. “We ask that the new law guarantee explicitly health care charged to the public coffers to all people residing in Spain, without any requirement”, summarizes the president of Doctors of the World.

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