The use of overseas doctors in providing out-of-hours services - Health Committee Contents

4  Proposed changes

14. In response to the death of Mr Gray in February 2008, the Department carried out a review of Performers Lists which was published in March 2009.[16] Subsequently, in June 2009 the Care Quality Commission published an interim statement on the services provided by "Take Care Now", the commercial healthcare provider involved in the Ubani case, and announced an inquiry.[17] At the request of the Department of Health, Dr David Colin-Thomé, Director of Primary Care at the Department of Health, and Professor Steve Field, the Chairman of the Royal College of General Practitioners, undertook a more general review of commissioning and the provision of out-of-hours services.[18] Finally, the Cambridgeshire coroner published the finding of the inquest into the death of Mr Gray and made recommendations to prevent a similar tragedy happening again. The coroner found that Dr Ubani had been "grossly negligent" in administering an overdose of diamorphine and that Mr Gray had been unlawfully killed.[19]

15. These investigations have made numerous recommendations to strengthen out-of-hours GP services. We took evidence about these proposed changes from a number of the authors of the reports and other witnesses, who also proposed reforms. We discuss these below.

The role of the GMC in the assessment of language and clinical skills

16. Witnesses were critical of the legislation which prevented the GMC from assessing either the clinical or language skills of EEA doctors. It cannot be taken for granted that EEA doctors have appropriate clinical skills since the standards expected of general practice in the UK do not necessarily correspond with those of other European countries.[20] Niall Dickson, Chief Executive and Registrar of the GMC, told us:

    The problem in relation to Europe is that [...] the definition "general practitioner", which is happily used and we have to accept, does not really apply so that in Germany they do not have general practitioners as they do here. Dr Ubani was supposedly a qualified general practitioner according to the rules of the European Union and we had to register him on the GP register, which simply goes to show that system absolutely does not work.[21]

17. The GMC is frustrated by the restrictions placed on it. EU law clearly forbids the GMC from testing for clinical competence, but the GMC told us that it only forbids the systematic testing of language skills; i.e. the Council could test in individual cases where it was thought necessary. Mr Dickson claimed that DH civil servants had 'gold-plated' the EU Directive when drafting the Medical Act 1983 so as to prevent it from undertaking any language testing. Mr Dickson contrasted this with the approach in France:

    If you come from a non-French speaking country the [French] regulator will ask to have a chat with you and if they think your French is not up to much on an individual basis they might ask you to take a test or to go away and learn French and then come back again. The 1983 Medical Act actually prohibits us from doing that.[22]

18. Mr Dickson argued that: "Free movement of labour is fine but in our view patient safety trumps the free movement of labour."[23] Legislative change is required, he argued:

    We would like a change in the law both in this country to the 1983 Medical Act which in our view goldplates the European Directive and actually makes it even more difficult in relation to language and we would like a change to the European Directive which would enable us to check competency of doctors coming from the European Union.[24]

19. The Minister disagreed about the possibility of amending the 1983 Act. The GMC and the Department have apparently received conflicting legal advice as to whether the Medical Act 1983 could be amended without contravening the European Law.[25]

20. In any case, the relevant European Directive will be revised in 2012. The Minister told us that he supported European legislative change to enable the GMC to test the linguistic competence of EEA doctors who wish to work in England:

    If we were able to change it in 2012 so that the GMC were able to carry out some language tests, I would welcome that and I am certainly happy to press for that.[26]

21. EU legislation prevents the GMC both from testing the clinical competence of EEA- qualified doctors who wish to work in the UK and from systematically testing their language skills. The GMC believes that the Medical Act 1983 "gold-plated" EU Law and forbade the GMC from giving any language tests to EEA doctors. The GMC informed us that the situation in France was different: there, the regulator undertook language tests within the remit of the relevant EU Directive. If the GMC had been able to check the language skills and clinical competence of EEA doctors wishing to practise as GPs, lives might have been saved.

22. There is a difference of legal opinion between the Department of Health and the GMC. We recommend that, without delay, the Department and the Council share their legal advice about the legality of amending the Medical Act 1983.

23. We further recommend that, as a matter of extreme urgency, the Government seek to make the necessary changes to the Directive 2005/36/EC before it is due to be revised in 2012, to enable the GMC to test the clinical competence of doctors and undertake systematic testing of language skills so that everything possible is done to lessen, as soon as possible, the risks of employing another unsuitably trained or inexperienced doctor in out-of-hours services.

Performers Lists, PCTs and SHAs

24. Given the GMC's lack of powers, it is vital that PCTs carry out thorough checks on the clinical and language skills of EEA doctors. This must be done because it cannot be assumed that these skills are always what they should be where a doctor has an overseas qualification. The Royal College of GPs informed us:

    There is a lack of competence—clinical and linguistic—of some of the GPs entering the UK to work in the NHS. I have consistently raised this issue with senior officials and politicians at the Department of Health.[27]

25. Unfortunately, some PCTs have not done their job. Professor Field stressed that problems had occurred despite systems being in place to prevent them: "if everybody did what they should have been doing properly the quality of care would have been good".[28]

26. Dr Ubani was refused access to West Yorkshire PCT's Performers List following a failed language test. However, the Cornwall and Isles of Scilly PCT failed to check Dr Ubani's language skills and also neglected to check whether he had applied for inclusion on any other PCT's Performers List. We were told by Professor Field that:

    Clearly Dr Ubani got in through the performers list in Cornwall and the Scilly Islands. He was rejected in Leeds I understand because of his language. Cambridge PCT took him on and there were no checks. Now you have three PCTs there all meant to be doing similar checks with different outcomes.[29]

This happened in spite of the Department of Health's and the GMC's repeated reminders to PCTs of their responsibilities.[30]

27. Surprisingly, some PCTs do not even appear to know that the GMC is not permitted to undertake language tests, as a recent review commissioned by the Department of Health indicated.[31]

28. The Minister stressed that the failure to carry out the requisite checks was illegal. He told us:

    I am making absolutely clear that PCTs should have been, by law, since 2004 looking at language skills. They had no discretion on this; it was a legal obligation. They should be doing it now. If they have not been doing it, and we know Cornwall was not doing it, then they were in breach of the law.[32]

29. We asked the Minister what actions had been taken against those PCTs which had broken the law in this way. We were informed:

    We confirm that the Department's understanding is that no disciplinary action has been taken by the PCT. The South West Strategic Health Authority, which is responsible for performance managing local NHS bodies, is aware of and is monitoring the situation. We understand that the PCT has since reviewed its procedures and has introduced a number of new safeguards, including arrangements for assuring itself that GPs it admits to its performers list have necessary knowledge of English language.[33]

30. There has also been a failure on the part of SHAs, which are supposed to performance manage PCTs. Professor Field told us:

    The SHAs frankly also need to take this seriously and make sure that the PCTs are doing their job properly. All SHAs should do that in England. There are enough checks and balances to make sure there is a safe system but it is not taken seriously and consistently from PCTs all the way through the system.[34]

31. The Minister stressed that because it would take time before either the Medical Act 1983 could be amended (even if it were permissible) or the EU Directive could be revised, it was essential that in the meantime PCTs and SHAs were doing their jobs properly.[35]

32. The Coroner in Mr Gray's case recommended that the DH "institute a national database of doctors from abroad who apply for inclusion on any performers list", containing data held on them by PCTs relevant to their fitness to practise.[36] This would enable PCTs to check on the status of would be GPs, in particular whether a doctor had been rejected by another PCT.

33. The Minister considered that there was a strong case for such a database:

    Q110 Sandra Gidley: You have mentioned about the performers list that you have put extra guidance out and you have tried to get everything up to standard, but was that the right system in the first place? Do you agree with the coroner's recommendation that there should really be a national database of doctors?

    Mr O'Brien: Yes, I do agree with that and we want to consult with the medical profession on how we do this. Is a PCT performers list approach the best one? There was a review that completed in March of last year which recommended 62 recommendations for reform and improvement of the performers list and that did not recommend that we move to a national database, but I do think there is a strong argument for that and what we want to do is work out how we should do that, so the straight answer to your question is yes, we do think we need to move to that, and the question is quite how we do it and what the next steps are.

34. We agree with the Minister that it is essential to ensure that the system of vetting EEA doctors begins to work at once without waiting for the necessary national and EU legislative changes.

35. In the interim, SHAs and the healthcare regulator, the Care Quality Commission, must ensure that all PCTs are carrying out language tests on EEA doctors and assessing their fitness to practise before they are admitted to Performers Lists.

36. The Department must implement the recommendations of the 2009 Performers List review without delay. We also recommend that the Department of Health review the merits of a national database for doctors working in general practice.

37. The Minister told us that Cornwall and Isles of Scilly PCT had acted illegally in admitting Dr Ubani to their Performers List[37] but subsequently the Department informed us that no disciplinary action had been taken by the PCT although the SHA was monitoring the situation and the PCT had reviewed its procedures. Moreover, no action has been taken against the PCT.

Commercial providers

38. There are good out-of-hours services. Two of the GPs we took evidence from suggested these were more likely to be provided by not-for-profit GP co-operatives than commercial providers since the former were more likely to have local GP engagement and involvement. Professor Field told us:

    I do […] feel that co-operatives offer an advantage over private providers in that it does mean that you are more likely to have local GP engagement and local GP provision therefore out-of-hours as well as in-hours, and the communication is better.[38]

39. Commercial providers must meet clinical governance and other standards set by PCTs who commission their services, but there is a danger that, in a drive to cut costs, quality of clinical care is squeezed. Fay Wilson, a GP working for an out-of-hours GPs co-operative, informed us of her concerns:

    I really am fundamentally anxious about the fact that this is a purely marketised privatised bit of the health service. I am personally uncomfortable with it but here we are and we have to make the best of it. I talk to GPs and people who have been in my position who say, "I will not work in the new system because I have had to drop my standards too much and I cannot reconcile myself with it".[39]

40. Monitoring the standards achieved by care providers who have been commissioned by PCTs, whether commercial or non-profit, requires constant vigilance. Mr Bates, Chief Executive of NHS Worcestershire, told us:

    I think one of the lessons that I would offer up to the Committee today is that if you think you can procure a service, sign a contract and say that we have everything pinned down in a contract and we can now turn our backs and work on some other problem, you are wrong.[40]

41. Unfortunately, it is apparent from the Department's own review that some PCTs are failing in their responsibility to monitor the standards of providers who have been commissioned to provide out-of-hours care.[41]

42. The Department must ensure that all PCTs' contracts with out-of-hours service providers detail the standards for quality of care, clinical governance and risk management in out-of-hours services. SHAs should play a stronger role in examining how PCTs are meeting these requirements. In addition, we recommend that the Care Quality Commission address PCTs' competence in this area under the new regulatory system. The Care Quality Commission must also use its powers under the new registration system to deal with commercial providers that endanger patient safety by failing in their obligation to check the clinical and language skills of overseas locums.

Induction, Training and Revalidation

43. Overseas GPs who come to work in the UK and who may be completely unfamiliar with the NHS and its systems can begin to see and treat patients without a thorough induction, training and mentoring process. The coroner in Mr Gray's case found that:

    It is clear to me that Dr Ubani in his dealings with patients over that fateful weekend was incompetent—not of acceptable standard. I consider the familiarisation process and induction process provided to Dr Ubani to have been for him insufficient. Indeed I think it was inadequate.[42]

This view was echoed by Professor Field who told us "I do not believe that our training for out-of-hours is adequate at the moment".[43]

44. It is imperative that PCTs ensure that contracts with out-of-hours providers detail rigorous standards in respect of the recruitment, induction and training that doctors should receive. Furthermore, PCTs must be satisfied that these are delivered by any sub-contractor or agency which providers may use.

16   Department of Health, Tackling Concerns Locally: The Performers Lists System: A Review of Current Arrangements and Recommendations for the Future, March 2009. Back

17   Update on Enquiry into Take Care Now and Out-of-Hours Services, Care Quality Commission, June 2009, Back

18   Department of Health, Current arrangements for the local commissioning and provision of out-of-hours primary care services, January 2010. Back

19   Inquest into the Deaths of David Gray and Iris Edwards: Coroner's Summing Up, Decisions and Announcements Back

20   Q 71 Back

21   Q 69 Back

22   Q 87 Back

23   Q 64 Back

24   Ibid. Back

25   Q 115 Back

26   Ibid. Back

27   Ev 46 Back

28   Q 58 Back

29   Q 72 Back

30   Q 104 Back

31   Department of Health, Current arrangements for the local commissioning and provision of out-of-hours primary care services, January 2010. Back

32   Q 113 Back

33   Ev 55 Back

34   Q 71 Back

35   Q 114 Back

36   Inquest into the Deaths of David Gray and Iris Edwards: Coroner's Summing Up, Decisions and Announcements Back

37   Q 113 Back

38   Q 57 Back

39   Q 7 Back

40   Q 4 Back

41   Department of Health, Current arrangements for the local commissioning and provision of out-of-hours primary care services, January 2010. Back

42   Inquest into the Deaths of David Gray and Iris Edwards: Coroner's Summing Up, Decisions and Announcements Back

43   Q 75 Back

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