The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I echo the comments just made by the noble Baroness, Lady Thornton. I, too, am extremely grateful to the noble Baroness, Lady Young, for her work and the work of her sub-committee in undertaking the inquiry that it did and for producing the report which has proved extremely valuable to us. Like the noble Baroness, Lady Young, I welcome the European Commission’s review of the directive on the mutual recognition of professional qualifications. It is a priority for the Government to ensure an appropriate balance between free movement and patient safety in the new directive. I will come on to say something more about that.
To start with, I broadly agree with the findings of the sub-committee’s report. As the Committee’s report highlighted, there have been significant concerns expressed by partners and stakeholders as to the applicability of aspects of the directive and its provisions to health professionals. The proposal published by the European Commission in December contains some welcome amendments that should, if introduced effectively, contribute significantly to tightening the European regulatory framework and improving patient and public safety. The Government’s negotiating position on the new directive has been informed by the sub-committee’s recommendations as well as the views of the devolved Administrations and our partners within the healthcare sector. There are a number of aspects in the proposals where we will seek clarification. I shall come on to those one by one.
First, the noble Baroness referred to information sharing. A key consideration for the Government is supporting the proposed new alert mechanism. As she mentioned, there is a proposal for a proactive alert mechanism for healthcare professionals falling within the sectoral professions—that is, those subject to automatic recognition of their qualification—in Article 56a(1). This looks positive. A different system will apply to healthcare professionals that fall within the general system under Article 56a(2)—the regime applicable for professionals under the general system that do not fall within the scope of the services directive. While this difference is not ideal, it arises from the different legislative bases across the European Union. However, the system should be workable if there is clear guidance from the Commission as to what can be shared and when, and if competent authorities under the general system comply with and take their responsibilities seriously and notify member states as appropriate. Having said that, I believe that there are points of detail we still need to clarify regarding the practicalities of administering the system. Ensuring proactive sharing of information when concerns arise about a healthcare professional is one of our top priorities, and we welcome the proposals in the new directive for the alert mechanism.
The legislative formulation of the proposals for alert mechanisms is complex, because the provisions differ for the sectoral professions. The Commission needs to ensure that all European competent authorities fully understand their obligations. At this point, we require further clarity on the application of the alert mechanisms for the general system and the implications of data protection overall.
We share some of the concerns of our partners about the proposal for a European professional card, an electronic card that links to the internal market information system, or IMI, and can be used by individual professionals for identification purposes. The new proposal, underpinned by the use of IMI, is a positive development, but the time limits proposed for decision-making when an application is made are potentially problematic and may prove to be counterproductive. In cases where satisfactory information has not been provided to the host member state competent authority within the time limit, it would be likely to have to reject an application. More generally, our view is that the whole concept needs to be properly piloted. While there may be some benefits in a professional card, proposals for it need more work—and I agreed with the remarks of my noble friend Lord Dykes on this issue. We need to ensure that the impact on competent authorities and professionals is properly considered so that patient safety is protected. We await with interest the results of the pilots. Our overriding concern in this area is to protect UK patients from healthcare professionals who may not be properly skilled to do the job.
The proposed move to a minimum duration of medical training from six to five years is also welcomed, as it provides greater flexibility to adapt medical training to meet the UK’s needs. We would eventually like to see a competence-based system of training standards, but we recognise the scale of such an undertaking in the short term. The move to modernise training over time, through a process for updating the core subjects that must be covered by training for the sectoral professions and by providing the Commission with delegated powers in this area, is a move in the right direction.
My noble friend Lord Bridgeman focused on an issue that he has consistently championed—that of language testing. This Government have made it clear that we want to stop foreign healthcare professionals working in the NHS unless they have passed robust language and competence tests. While the proposed new directive would not allow language checks by a competent authority before recognition of the qualification of a professional, it makes it clear that controls on language checks are permissible and can be undertaken before a professional is able to practise. The proposals in respect of language checks do not go as far as the GMC would like, as they do not enable checks at the point of registration, but would permit healthcare competent authorities to undertake language controls following registration when there are serious or concrete doubts about a doctor’s language ability, or following a request by the NHS or patient organisation. There is evidence of the Commission having considered the views of the UK Government in its proposals, and there have been positive developments in the proposals in relation to patient safety overall.
As I said, the Commission’s proposed draft would not appear to allow the GMC to undertake systematic language testing at the point of registration. The GMC would be required, as it is now, to consider the recognition of the qualification and, if accepted, to register the EEA migrant. However, the proposals appear to give greater scope for the GMC to be able to apply language checks after registration where serious concerns are identified, which is a positive development. We believe that what the Commission is proposing would be consistent with the proposed model for a strengthened system of checks, overseen by responsible officers, that we are working up in conjunction with the GMC. I will now come on to that.
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. We have already taken steps to strengthen the system and, since 2011, 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 they need for their area of work, and that references are checked, but we think that we can and should do more. We expect to consult shortly on new guidelines for responsible officers, which will build on the existing role of responsible officers in England to explicitly check for language ability.
We are also working with the GMC to develop further proposals and amend the Medical Act. This will mean the GMC is better able to take action where language concerns arise as part of the registration process and when a licence to practise has already been issued. The proposed changes to the directive would appear to facilitate the implementation of our preferred approach to language controls, which I have described.
In common with the sub-committee, the Government are disappointed that the proposals do not include a clearer requirement for all member states to have continuous professional development for their healthcare professionals. We think that all member states should be required to have a system of CPD in place for the healthcare professions within their territories, since out-of-date training presents a much greater risk for healthcare workers than for other non-health professions covered by the directive. We would not be prescriptive on the CPD system used by the member states. However, migrant professionals should be expected to demonstrate that they have kept up with latest developments in practice, and that recognition should be linked to them being able to do so. Overall, the key issue is that health professions should be able to demonstrate relevant recent practice.
The noble Baroness, Lady Thornton, referred to training. Negotiations on the directive commenced in January, with the aim of reaching agreement by the end of 2012. However, training has not yet been discussed in any detail at European level. We will continue to work with stakeholders on that important topic. As regards the use of delegated and implementing acts by the Commission, the Government recognise the need for those acts to facilitate the effective functioning of the European Union and the freedom of movement of professionals. However, we seek further clarity on the appropriateness of some of the proposed changes to the use of delegated and implementing acts and the surrounding processes.
We are pleased that the European Commission has proposed a “transparency” process under Article 59, which is likely to bring significant benefits in terms of increased trade and ease of doing business across Europe. Member states are obliged to check that their regulation of professionals is necessary and proportionate, while allowing member states ultimately to decide whether to regulate professions, which is of particular significance for health and caring sectors, to ensure patient safety. Inherently, in the context of European law, there is a balance to be struck here.
That balance was something to which the noble Baroness, Lady Young, and my noble friend Lord Bridgeman referred. I very much take the points that they made. Naturally, we believe in proportionality in regulation, but the Government have previously made their view absolutely clear that in places there needs to be a stronger focus on patient safety in the directive. Some of what is proposed in the draft new directive will help to achieve a better balance, and that is to be welcomed. Our approach to the negotiations over the coming months will be to ensure an appropriate and improved balance between freedom of movement and patient safety.
I listened with care to my noble friend Lord Dykes and agreed with much of what he said. We should not assume that our standards in this country are necessarily higher than those in other countries. Having said that, I think that there is one issue here of which we should not lose sight. As highlighted in evidence given by the General Pharmaceutical Council and the Nursing and Midwifery Council to the House of Lords inquiry last year, a small but significant risk is posed by professionals who are entitled to automatic recognition and seek establishment in the UK but who have not practised their profession for some years. As a result, in the Government’s Green Paper response to the Commission, we asked for the addition of a requirement of two years’ experience in the last five years, unless the applicant graduated in the last three years. However, this suggestion was not included in the Commission’s recent legislative proposals.
The Government will continue to work with the Commission to ensure that safeguards are in place. However, we come back in the end, I think, to the role of employers and commissioners in this context, because that is clearly vital in ensuring the suitability of the individuals they seek to contract with for the specific role they intend them to undertake, including acceptable relevant experience.
There is no question that overall the UK healthcare system benefits from the free movement of professionals. I think we all agree about that. However, the Government will continue to prioritise and promote satisfactory safeguards for the health professions and to ensure that the principles of free movement are balanced with the need for adequate safeguards for patients.