Medical Act 1983 (Amendment) (Knowledge of English) Order 2014

Earl Howe Excerpts

Tuesday 11th March 2014 Grand Committee

Moved by

[Earl Howe]

That the Grand Committee do consider the Medical Act 1983 (Amendment) (Knowledge of English) Order 2014.

Relevant document: 21st Report from the Joint Committee on Statutory Instruments, 31st Report from the Secondary Legislation Scrutiny Committee.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, this Government recognise that overseas doctors make a valuable contribution to the NHS, and we are keen to ensure that highly skilled professionals do not face unnecessary barriers. However, it is vital that all doctors practising in the UK have the necessary English language skills in order properly to care for and communicate with patients.

Due to the legislation that governs the regulation of doctors, the General Medical Council is not able to apply language controls to applicants from the EU as a pre-condition to registration as a medical practitioner. This is of great concern to the Government and to the General Medical Council, as it raises a clear risk to patient safety.

The same restrictions in law do not apply to international applicants from outside the EU. Therefore, the General Medical Council is able to require all international applicants to provide evidence of their English language capability—for example, by taking an English language test—before being registered and given a licence to practise in the UK.

We have worked with the General Medical Council to identify a system of language controls which provides greater patient safety while being compliant with European law. We believe that the proposed legislative changes contained in the draft order will achieve this outcome. The draft order gives the General Medical Council appropriate powers to ensure that only those doctors who have the necessary knowledge of English to do their jobs safely and competently are able to practise medicine in the UK.

The draft order makes changes to the Medical Act 1983 to do two things: first, to give the General Medical Council the power to refuse a licence to practise in circumstances where a medical practitioner from within the EU is unable to demonstrate the necessary knowledge of English; and, secondly, to create a new fitness-to-practise category of impairment relating to language competence. This will strengthen the General Medical Council’s ability to take fitness-to-practise action where concerns are identified.

The licensing amendments will enable the General Medical Council to require evidence of English language capability as part of the licensing process where language concerns have been identified during the registration process. This is compliant with EU law, which sets out under the mutual recognition of professional qualifications directive that a professional’s qualifications must be recognised by the host member state before any language checks can take place.

The order makes amendments to Section 29G of the Medical Act 1983 which will require the General Medical Council to publish guidance setting out the evidence, information or documents which a medical practitioner must provide to demonstrate that they have the necessary knowledge of English. Any person who is refused a licence to practise on the grounds that they have failed to demonstrate they have the necessary knowledge of English will have a right to appeal.

The process for determining whether a person has the necessary knowledge of English will be set out in the General Medical Council (Licence to Practise and Revalidation) Regulations, which will be amended by the GMC in due course to enable the policy to be implemented.

With regard to the fitness-to-practise amendments, a new category of impairment relating to English language capability will be created. This will allow the General Medical Council to request that a doctor undertake an assessment of their knowledge of English during a fitness-to-practise investigation where concerns have been raised, which it is currently unable to do. These changes will strengthen the General Medical Council’s ability to take fitness-to-practise action where concerns about language competence are identified in relation to doctors already practising in the UK.

The proposed amendments to the Medical Act 1983 are designed to complement and further strengthen the existing language controls imposed through the responsible officer regulations, performer list regulations and checks undertaken by employers at a local level. These amendments will enable the General Medical Council to carry out proportionate language checks where there is cause for concern, and ensure that all doctors practising in the UK have the necessary knowledge of English to do their jobs well and reduce the risk to patient safety. I commend this order to the Committee, and beg to move.

[Lord Walton of Detchant (CB)]

My Lords, I cannot say how welcome this order is. Forty-three years ago I was elected dean of the medical school of the University of Newcastle. By virtue of that election, I was immediately appointed to the General Medical Council. I became a member of its education committee and three years later I became the chairman of that committee. By virtue of being chairman of the education committee of the GMC, I was then appointed, under the new arrangements for the European Union, to the Advisory Committee on Medical Training, which met twice a year in Brussels and was required to make recommendations on basic medical education, specialist medical education and the mutual recognition of qualifications.

That was an interesting experience. Under the treaty of Rome, the first directive derived from that treaty said—I am not quoting exactly but the meaning is clear—that in the movement of doctors across the European Union there should be mutual recognition of qualifications and registration should be granted, but that it should be up to the host country to see to it that the incoming doctor had such ability to communicate with patients to make him or her safe to practise. That seemed to give us at the GMC full authority to embark upon establishing a language test.

At that time, for historical reasons, some doctors from outside the European Union—from Commonwealth countries such as Australia, New Zealand, the West Indies and many others—had enabled the General Medical Council to inspect their examinations and qualifications so they were automatically granted full registration under the Medical Act. But doctors from many other countries who had not had that ability to have inspections were required to apply for temporary registration if they wished to come to the UK, and they had to take a test set by the Professional and Linguistic Assessments Board, which established tests of not only clinical and academic competence but language capability. That was the so-called PLAB test.

It is important to make the point that the rights of doctors graduating in any other member country of the European Union applied only to those who had graduated in those countries but who were also nationals of EU member states. For instance, if a doctor from a country outside the European Union graduated from, say, Heidelberg, they were not entitled under that treaty to come to the UK and had to go through the same procedure as a doctor from India, Pakistan or other parts of the world.

Indeed, there was one such doctor, an Iranian, who qualified in medicine in Heidelberg. He applied for registration with the General Medical Council and was turned down. He took the GMC to a judicial review. Of course, he lost because he did not qualify. The result of this was that I was interviewed by Special Branch because he had made serious threats against my person, including threats of violence. However, we will leave that alone for a moment.

The point I wish to make is that it is so important that we have this language test. We at the GMC, having read what the directive said, tried to impose a language test on incoming doctors from the European Union, but we were threatened with being taken to the European Court because we were told very clearly by our lawyers and by the lawyers from Europe that this was contrary to the treaty of Rome. We tried again 10 years later when I became president of the General Medical Council, again with a total lack of success. All we were able to do then was to persuade the employing authorities in the UK, through the Department of Health, that they could impose a language test as a condition of employment. Regrettably, that agreement with the Department of Health was never properly or widely fulfilled across the UK, so a language test as a condition of employment for European doctors was not widely employed. Our attempts at that time were lost.

The great thing about this order is, first, that it makes it clear that the GMC can properly design and employ a test of the language ability of an incoming doctor from the EC as a condition of registration. Secondly, the responsible officer can make certain that any doctor coming up for revalidation speaks English adequately. Finally, when any doctor who is already a specialist from the EC or is working either in general practice or in a specialist grade and is brought before the GMC on the question of fitness to practise, the fitness-to-practise procedures can take note of the doctor’s ability to speak English. These are extremely welcome developments. Perhaps I am wrong about the condition of registration but the GMC, I think, is hoping that that is the effect of this order. Perhaps the Minister can clarify it for us. The whole process set out in this paper is extremely welcome and long awaited.

--- Later in debate ---

[Earl Howe]

My Lords, I am very grateful for the welcome that this order has received from all noble Lords who have spoken. Perhaps I may begin by making clear one critically important point relating to the order prompted by a comment made by the noble Lord, Lord Walton. It is important to understand that the English language test is not a condition of registration. If a language test is required of a doctor, it would be a condition for that doctor receiving a licence to practise. Registration is granted on a full basis and language is assessed after registration.

The noble Lord, Lord Turnberg, questioned the quality of the training of specialists who come from other EU countries and asked what was being done to assure the safety of those doctors. If the specialism of a doctor is listed as a specialism under the directive then he or she will be required to comply with the minimum training standards set out in the directive. However, I will seek the advice of the GMC on this matter and will write to the noble Lord accordingly. A similar point was made by the noble Lord, Lord Kakkar, around the competency of EU doctors. I am sure he will know that it is not possible for the GMC to assess the competency of an EU doctor on registration. However, the council could assess an EU doctor’s competency in fitness-to-practise proceedings if questions are raised about the competence of that practitioner.

The noble Baroness, Lady Finlay, asked who would bear the cost of the fitness-to-practise case where there were language concerns. I can confirm that a doctor will not be required to pay for his or her own assessment in fitness-to-practise cases. The GMC has confirmed that it will bear this cost. She made the point, rightly emphasised by a number of noble Lords, including my noble friend Lady Brinton, that good communication skills are about more than just language competence. The issue is one that falls squarely to the GMC and we look to the council to ensure that it is addressed in guidance. If communication skills result in deficient professional performance, that matter could certainly be considered as part of a fitness-to-practise issue.

The noble Baroness spoke with her customary experience about the International English Language Test. On 25 February, the GMC announced a change in the score it requires in the English language test. As she pointed out, this is a test that many international medical graduates currently use to demonstrate their knowledge of English when they apply to join the register. Currently, IMG applicants must achieve a minimum score of seven out of nine in each of the four elements, and an overall score of seven. From the middle of June 2014, doctors will have to achieve a higher overall score of 7.5. They will continue to have to achieve scores of at least seven in each of the four domains. The new requirements for IELTS will be the same for all those applying to join the register. This move follows research commissioned by the GMC which suggested that the level should be enhanced. Moreover, IELTS will be one of the pieces of evidence that European doctors can use to demonstrate that they have the necessary knowledge of English.

My noble friend Lord Bridgeman asked about the extent to which the principle behind this order will be extended to other medical professionals, including nurses. The Government believe that in order to maximise patient safety, nurses coming to work in the NHS should not be able to work unless they have the necessary knowledge of English to perform their job well. Departmental officials are having ongoing detailed discussions with the NMC to seek to establish a system that will enable them to carry out proportionate language checks which are in line with EU law. I cannot give him further detail at this point but I can assure him that this matter is very definitely under scrutiny.

It must also be remembered that registration with the Nursing and Midwifery Council does not guarantee employment in the UK. Individual organisations are responsible for ensuring that the people they employ have the necessary skills for the post for which they are applying. EU legislation does not prevent the employer from assuring themselves that the nurse being recruited is competent, safe to practise, has up to date and contemporary knowledge, and has the necessary language and communication skills.

The noble Lord, Lord Hunt, raised the concern that the test for language competence should not be abused, and asked what safeguards the GMC was proposing in this area. As I mentioned, the GMC will be issuing guidance to provide absolute transparency of what evidence and documents are needed to demonstrate the necessary language competence. That should provide not only the necessary clarity for all applicants but also minimum scope for the kind of abuse that he referred to. It is for the GMC as the independent regulator of medical practitioners in the UK to decide the necessary knowledge of English to practise safely in the UK. As regards the guidance, in its recent consultation it suggested that where there is a cause for concern, similar evidence may be required to what is currently required for IMG doctors—for example, the required score in the academic version of IELTS or that the doctor has a primary medical qualification taught and examined in English. But, of course, in making that determination, the GMC will need to be mindful of EU law and ensure that such requirements are necessary and proportionate in view of the job to be performed.

The noble Lord, Lord Hunt, also asked whether the language requirements will be in any sense new. Systematic language checking is not permitted under the new directive. Any testing, as I mentioned, must be proportionate, and we anticipate that the new directive is likely to come into force in January 2016.

As regards the noble Lord’s other question, about the quality of language tuition where a doctor has been found to be deficient—and he asked whether the GMC will be signposting such doctors to good language schools—I have no doubt that this is an issue that the GMC will consider. However, it is ultimately an issue for it.

I hope that I have succeeded in answering most if not all of noble Lords’ questions. If I have not I will of course write. I conclude by thanking noble Lords for their very constructive and helpful comments.

Motion agreed.