Health Professionals: EEA and Non-EEA Citizens

Earl Howe Excerpts

Thursday 8th September 2011 Lords Chamber

[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.