Toward the end of 2021, trainee solicitor Niamh Osborne had a case that was life and death.
Her new client had been undocumented since 2016, says Osborne, who works for the law firm KOD Lyons. In early 2021, he had fallen ill.
“He was diagnosed with a very serious and life-threatening form of liver cancer,” she says. Doctors said he needed a new liver.
Her client was referred to the transplant unit at St Vincent’s University Hospital, but then came a major setback.
Hospital staff said they couldn’t put him on the transplant waiting list because he was undocumented, says Osborne. He didn’t qualify, they said.
Neither the HSE, nor individual hospitals, were able to provide figures for how many people, like Osborne’s client, are refused an organ transplant each year because of their immigration status.
Osborne’s colleague, associate solicitor Stephen Kirwan, says his firm usually comes across it five to 10 times annually – though, in 2021, they had four such cases. Three other law firms said they hadn’t had any of this type of case in 2021.
Deciding to block a transplant because of someone’s immigration status is morally reckless, Kirwan says. “My opinion is that healthcare and immigration should be separate.”
A spokesperson for the Department of Health said at first that queries around access to transplants were more appropriate for the HSE. A HSE spokesperson said it was a “policy matter” relevant to the Department of Health.
The Department of Health spokesperson then said that anybody accepted by the HSE as “ordinarily resident”, meaning they have lived or plan to live in Ireland for at least a year, qualifies to access public health services, including transplants.
Kirwan and Osborne, though, say it’s more complicated.
Osborne’s client’s health kept deteriorating, she says.
She and her colleagues asked the Department of Justice to grant him a secure immigration status on humanitarian grounds, says Osborne.
Once the Department of Justice greenlit the request, he got a new liver.
A spokesperson for the HSE said that there is no central database recording how many people are refused an organ transplant each year because of their residency status.
Queries should be directed to individual transplant centres at the Beaumont, St Vincent’s and Mater hospitals, they said.
Spokespeople for the Mater and St Vincent’s didn’t respond to queries.
A spokesperson for Beaumont said the query should be put to the National Organ Donation and Transplantation Office (ODTI), which forwarded queries back to the HSE’s press office.
The HSE spokesperson said ODTI “does not collect or process any data on status of individual patients in transplantation services”.
“Decisions on patient care and treatments are responsibility of hospitals who provide transplant services,” the HSE spokesperson said.
The difficulty isn’t just in accessing the organ transplant itself, say Kirwan and Osborne. It’s also, and as importantly, about accessing follow-up care.
“Primarily, what needs to be ascertained is that the transplant recipient is able to avail of the appropriate medical and social support services that are required in the aftercare stage,” said Osborne, the trainee at KOD Lyons.
Her undocumented client wasn’t eligible for any government support post-surgery, she says. That is what initially disqualified him from getting a new liver, says Osborne.
Says Kirwan: “They’re not making decisions just based on residency, but residency is a huge factor in deciding long-term care.”
After an organ transplant, most people require special care and support, whether it is housing, unemployment benefits or medical care, says Kirwan.
That’s why it matters if a patient is a student on a Stamp 2, or a worker on Stamp 1, or an asylum-seeker living in direct provision, Kirwan says.
Each immigration permission comes with its own rights to government support and benefits, he says.
Kirwan says even if everyone on a legal status had equal access to donated organs, that still leaves those who are undocumented behind.
That is why, he said, immigration statuses and healthcare should be separate.
“There has to be clear guidelines in relation to entitlements,” said Kirwan, the associate solicitor.
At the moment, neither the Department of Justice nor the Department of Health are transparent enough about their own roles in setting policies, he says.
A secure immigration permission from the Department of Justice unblocks access to the HSE’s organ transplants waiting lists because it means unlimited access to social care support post-operation, say Osborne and Kirwan.
But a spokesperson for the Department of Justice said that it “has no involvement with organ donation policy, this is a matter for the Department of Health”.
Kirwan says the Department of Health considers the entitlements for each immigration stamp when assessing a patient’s after-care prospects, so the Justice Department and its policies do come into it.
“I don’t really know what the internal relationship between Department of Justice and Health is,” he says, “but in my view, Justice should be very clear with the Department of Health in relation to what someone should be entitled to.”
It’s not clear what advice the Department of Justice is offering to the Department of Health, and it’s not publicly available for everyone to understand, he says.
Can the Department of Health or the HSE put someone on a transplant list, ignoring all the immigration-related requirements that someone may fall short of?
“Legally, absolutely, I think it’s a medical decision,” said Kirwan. But uncertainties around people’s immigration entitlements usually get in the way, he said.
The Department of Justice usually does grant permission to remain if someone is seriously ill, Kirwan said, but the issue is time-sensitive and not everyone can afford to wait.
“The fact that someone could be discriminated [against] because of having a particular stamp just doesn’t make a whole lot of human rights sense,” said Kirwan.