Health Professionals: EEA and Non-EEA Citizens
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Viscount Bridgeman
My Lords, I am very grateful for the opportunity to initiate this debate and particularly grateful to those noble Lords who will speak, as notice only came last Thursday because of the Recess.
I call attention to the disparity of treatment of health professionals trained within the EEA and outside it. It is particularly marked in the case of nurses, but applies to a greater or lesser degree to all healthcare professionals. I am deliberately omitting mentioning doctors in great depth as I know distinguished doctors taking part in the debate will speak with authority on this subject. The Nursing and Midwifery Council—the NMC—is responsible for the registration of and setting standards for all nurses throughout the United Kingdom and the islands. There is no better way of viewing this disparity than through the eyes of the NMC and I make no apology for taking that route myself.
Let me summarise the main differences. Nurses from outside the EEA have to take the overseas nursing programme as part of registering. This is a comprehensive 20-day course invoking professional competency and, where applicable, a period of supervised practice of between three and six months in length. All applicants have to undergo the International English Language Testing System. The NMC is therefore in a position to exercise total control over the registration of these non-EEA applicants. Contrast this with healthcare professionals trained within the EEA, who are subject to the Commission’s mutual recognition of professional qualifications directive of 2005. Under this directive, healthcare professionals seeking to register and practise in another EEA member state have the right to do so provided that their qualifications meet the minimum standards as laid out in the directive. If these standards are met, the member states’ competent authorities—I shall refer to them as regulators, as it is rather easier—must automatically recognise the qualification and register those professionals as fit to practise in their countries. They have no option. Regulators are not allowed to undertake further competency checks, including checking whether practice competencies had been kept up to date or the applicant has basic communications skills in English.
Thus the directive does not require a migrating EEA nurse or midwife to demonstrate that they have kept their practice up to date since obtaining their training qualification. At the same time the NMC has no option but to register automatically EEA nurses and midwives, even those who may not have practised for, say, 20 years. Indeed, I am advised by the NMC that over the past year it had applications from over 1,400 EEA-trained nurses and midwives who have not practised for at least four years. Another proposal by the Commission—it is part of the revision of the directive, about which I will talk later—that causes concern is the principle of partial access. The Commission, in an otherwise well thought-out document, has suggested that professionals who have shortfalls in training that cannot be compensated by an adaption period should be registered with limits to their practice. This is simply not practicable in the case of nurses and midwives, who in the case of A&E nurses, for example, must often make ranges of critical clinical decision quickly and in pressured situations. I urge the Government to strongly resist this proposal.
I wish to cite a number of examples where, in the case of EEA applicants, the directive causes the registration process to be inadequate. First, member states’ training standards can vary greatly. For example, different countries put different emphasis on the importance of record-keeping. In inquiries that I made, I was amazed to find that several advanced countries did not have a tradition of patient notes such as we have in this country. While training in a large number is comparable to that in the UK, this is not the case with some of the newer accession countries. EEA standards for general nursing and midwifery date back three decades and do not account for fundamental changes in the professions over this time. Those changes include the use of new technologies and evidence basis, the shift from acute to community nursing and the move in some countries to a degree-level standard of training.
As regards language testing, as I said, under the directive EEA nurses and midwives applying for registration cannot be systematically tested for language competency. This is in stark contrast to the IELTS for non-EEA applicants, which includes even those from English-speaking countries. I consider that this is illogical and inefficient. Your Lordships will be aware that the directive places the onus of measuring language competency on employers rather than regulators. This has a number of practical defects, the first and crucial one being the lack of uniformity. For instance, hospital B may refuse an applicant on the ground of language competency, but that applicant may have come from hospital A where there was no problem. Not all hospital personnel departments are experienced in spotting language deficiency. A significant number of cases certainly slip through the net. The case of Dr Daniel Ubani is well known. In that case a patient died through an incorrect drugs dosage which was traced to the doctor’s inadequate command of English. Too much should not be made of this case as it was, after all, one isolated incident. However, for the reasons that I have just outlined, I suggest that there is another disaster waiting to happen. I know of one hospital where a number of consultant surgeons have refused to perform operations unless every member of the theatre team has English as his or her first language.
Here I come to the blunt instrument which will be familiar to those experienced in these matters. Until recently, the NMC required all applicants, including those from the EEA, to demonstrate at least 450 hours of practice in the three years prior to their application. However, over the past two years the Government have had no option but to request the NMC to drop this requirement as it affects nurses coming from the EEA on the ground that it is incompatible with the directive. I am told by the NMC that it has reluctantly had to comply.
On a more encouraging note, the Commission, the Department of Health and BIS are well aware of the urgency of the language and other competency risks I have discussed. Many of the risks to which I have referred could be mitigated through changes to the existing directive. A review of the directive is under way and is due to be completed by 2012. The NMC is leading a group of 25 European nurse regulators to co-ordinate their responses through the review process. As part of the review the European Commission released a Green Paper in June exploring changes to the directive. The Green Paper suggestions have gone some way to addressing concerns but they are still not clear enough. It is worth summarising what the NMC wishes to see in nurses from within the EEA registered in the United Kingdom. This is taken from its submission to Sub-Committee G—I am very pleased to see the noble Baroness, Lady Young of Hornsey, in her place—and is an excellent summary of what is expected from a nurse or midwife from the EEA seeking to practise in the UK. They should be trained to a level equivalent to that of training in the UK. They should be fit to practise within the scope of practice of the professions in the UK and they should be able to communicate effectively in English.
In the light of this the NMC has a “shopping list” which I respectfully bring to the Minister’s attention. First, minimum training requirements should be modernised to reflect the changing roles of nurses and midwives, potentially to a degree-level standard. I am talking about other EEA members here. Secondly, all EU regulators in the Community should be required to implement continuous professional development to ensure that competencies are kept up to date. Thirdly, the principle of partial access must not be applied to the healthcare professions. Finally, and most importantly—this is at the heart of this debate—regulators must be allowed to satisfy themselves of language competence at the point of registration, and employers should be allowed to undertake competency checks.
BIS, supported by the Department of Health, has recognised throughout the review process the unique position of healthcare professionals and supports many of the changes proposed by the NMC. I think that it also appreciates the urgency of the situation. The Government are to be commended for their recent efforts to strengthen a local-level system of language competency checks to be put in place at an early stage and operate until a full-scale revision of the directive is completed, which will take a number of years. I urge BIS to continue to reflect the concerns of the nursing profession in its submission to the Green Paper consultation, which closes on 21 September. I also urge the Government to continue this support when draft legislative changes to the directive are made later this year for consideration by the European Parliament and in due course by the Council of Ministers.
I hope that a feature of this debate will be patient safety. I hope that the Minister will be able to assure the House that he and his colleagues in BIS will keep up the pressure on the Commission not only to set up an interim regulatory system but to ensure that the directive as revised emerges as helping to maintain the traditionally high standards of nursing in the United Kingdom rather than acting as a hindrance, which it sadly does at present. As with any measures taken to prevent or minimise accidents, tomorrow may be too late. I beg to move for Papers.
Baroness Northover
My Lords, I remind noble Lords that this is a strictly time-limited debate and that therefore when the clock reaches four, noble Lords will have had their time. To go further will take either from the time of other noble Lords or of the Minister responding at the end.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, my noble friend Lord Bridgeman deserves our thanks for tabling this very useful debate and for introducing the subject so ably. As he and other speakers have rightly indicated, there is considerable disquiet about the implications of European law in respect of the free movement of healthcare workers. I should particularly like to congratulate the noble Baroness, Lady Young of Hornsey, on her committee’s very helpful report and on her concise remarks today in support of it.
Several healthcare professional regulatory bodies have expressed concerns about whether we have the right safeguards in place to check whether European Economic Area migrants wishing to work in the UK are fit to practise. They have called for new powers for checks on such migrants. Under European directive 2005/36/EC, many EEA migrants will automatically have their professional qualifications recognised by the relevant UK regulatory body, whereas healthcare workers from countries outside the EEA will generally be subject to checks upon their competence and communications skills before they are allowed to register.
Any EEA national whose qualification is automatically recognised must hold a European qualification which conforms to the standards set out in the directive. Picking up the point so well made by the noble Lord, Lord Winston, this should ensure that, for example, a general care nurse’s qualifications broadly attest to his or her competence, but it is then up to whoever employs, or contracts with, the nurse to make sure that the individual in question has the right skills and qualifications for the role. My noble friend Lord Colwyn made this point very well in the context of dentists.
The UK system of health professions regulation largely treats registered professionals equally, regardless of their nationality and background. The differences lie primarily in entry to the profession—that is to say, entry into the register. In looking at the directive, our view is that elements of it need strengthening but overall the system for mutual recognition is effective. I can, however, reassure my noble friend Lord Hunt that we are absolutely committed to making the European system as strong and robust as it can be.
This summer we have been working constructively with other government departments and the health regulators themselves to formulate our response to the European Commission’s Green Paper on reforms to the directive. On that Green Paper there is very little on which the department and our partners disagree regarding areas of the directive that need strengthening. We agree that the harmonised training standards underpinning automatic recognition need updating and that a mechanism for regular updates is required. We would also like to see a focus over time on competencies in training rather than particular length of training.
My noble friend Lord Hunt referred to continuous professional development. We think that all member states should be required to have a system of CPD in place for the healthcare professions on their territories. Out-of-date training for the health professions can pose a much greater risk than for other professions covered by the directive. We agree that that issue needs to be tackled in a revised directive. We would want to ensure that EEA migrants subject to CPD requirements in their home state are obliged to demonstrate they meet such requirements when they register in another member state.
My noble friend Lord Bridgeman mentioned the principle of partial access. We share his concerns. The concept exists in European law through case law, whether we like it or not. The current case law allows that partial access can be denied if there are overriding reasons of public interest. We would argue that this means that it is not applicable to the health sector, particularly where harmonised training requirements apply. However, to avoid doubt about this, we wish to see explicit provision in the directive to clarify this point.
My noble friend and the noble Lords, Lord Winston and Lord Kakkar, referred to the issue of language checks. In fact, I think all speakers did so. Article 53 of the directive also states that those benefiting from automatic recognition,
“shall have a knowledge of languages necessary for practising”,
in the relevant member state. However, case law from the Court of Justice of the European Union precludes systematic language testing at the point of registration, and European Commission guidance states that the lack of language knowledge cannot be a ground for refusal of recognition of qualifications. So while a competent authority could test the communications skills of a healthcare worker from a non-EEA country, it could not routinely or systematically do the same for an EEA healthcare worker. Furthermore, such checks could not act as a barrier to recognition of their professional qualifications. However, both the directive and case law support language checks before a professional takes up a particular role provided that checks are not systematic, are proportionate and reflect individual circumstances.
In the UK, we have implemented a system of checks at a local level through duties on primary care trusts and guidelines to local NHS employers. The noble Lord, Lord Winston, is totally right to say that this is an issue of major importance for the quality of patient care. We have already taken steps to strengthen the system, and since January all designated bodies have been required to nominate or appoint a responsible officer—for example, a medical director in an NHS trust. In England, the responsible officer’s duties include ensuring that medical practitioners have the qualifications and experience necessary for the role and that references are checked. However, we think that we can and should do more, so we are working with the GMC to develop further proposals that will build on these existing duties.
Work is currently focused on the medical profession because risks there are perhaps most acute, especially in the context of general practice. However, we will also work with the relevant healthcare professional regulatory bodies and the European Commission to explore how a strengthened system of proportionate local checks might be introduced for other professions where there is evidence of justified concerns about patient safety.
The noble Lord, Lord Kakkar, referred to the unfairness to migrants from non-EEA countries. I think the issue here is that regulators have to reconcile the need for fairness and reasonable treatment of migrants seeking registration with their principal objective of protecting public health and safety. International migrants, as the noble Lord said, may undertake training in a very different cultural context—for example, in relation to child protection. For that reason it is essential that robust checks on professional competence are undertaken. At the point of entry to the UK, the regulator may seek confirmation from the home member state, if it is an EEA candidate, that there are no known concerns about the individual. Our concern relates more to the need for a proactive duty to share information when concerns actually arise.
My noble friend Lord Colwyn spoke about dentists in his customarily authoritative way. We consider that there is an opportunity here in the context of the proposal to update the minimum training standards in the directive to address the long-standing concerns that some newly qualified EEA dentists do not have the same level of practical training at the point of qualification. It will, however, remain essential that PCTs and other contracting or employing bodies ensure that any person they appoint to their performers list is appropriately trained and qualified for the role to which they will be appointed.
On the issue of our interaction with the EU Commission and the efforts by my department and those of the Department for Business, Innovation and Skills, I can reassure noble Lords, in particular the noble Baroness, Lady Thornton, and the noble Lord, Lord Winston, that the two departments have been working very closely together on the production of a response to the Green Paper. The closing date for responses to the Commission is 20 September. The Government’s response is being finalised more or less as I speak.
My noble friend Lady Hussein-Ece was correct in what she said. There is no question that, overall, the UK healthcare system benefits from the free movement of professionals and has done for many years. Thankfully, the NHS is moving more and more towards self-sufficiency in terms of its workforce but her point was very well made.
However, perhaps I may conclude by re-emphasising one issue. It is essential that there are effective checks on the suitability of all healthcare professionals for the specific jobs that they are going to undertake. In that context, there has to be, as there is now, a key role for those employing or contracting with healthcare professionals in undertaking those same checks.