Supplementary memorandum by the Department
of Health (OHS 01A)
ADDITIONAL INFORMATION REQUESTED BY THE COMMITTEE
NHS CORNWALL AND
ISLES OF
SCILLY PRIMARY
CARE TRUST
Statements made by NHS Cornwall and Isles of
Scilly Primary Care Trust and the evidence produced to the Coroner
indicate that the PCT may have failed to take adequate steps to
satisfy itself that Dr Ubani had the knowledge of English necessary
to perform services in the PCT's area. Whether and the extent
to which this may have breached the law must be determined by
the appropriate legal authorities rather than the Department.
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.
CLARIFICATION ON
ISSUES RELATING
TO THE
MEDICAL ACT
1983 AND DIRECTIVE
2005/36/EC
1. I understand that the Committee asked
for clarification on two points:
(i) Precisely what legislation it is that prevents
the GMC from assessing language knowledge; and
(ii) What changes would we like to see made to
the Directive if it were to be amended.
The Directive
2. Article 53 of Directive 2005/36/EC
("the Directive") makes it clear that persons benefiting
from the recognition of professional qualifications shall have
a knowledge of languages necessary for practising the profession
in the host Member State. However, lack of language knowledge
is not a ground for refusing recognition of the qualifications
of a national of another Member State—the Commission's own
guidance is clear about this.
3. The UK has therefore transposed the provisions
in the Directive that state that migrants shall "have a knowledge
of languages necessary for practising the profession in the host
Member State", not at the point of registration, but at the
point where a doctor seeks to provide services in the community;
both through the National Health Service (Performers List) Regulations
2004,[42]
in primary care, and through separate guidance to NHS employers.
4. During the Committee hearing the situation
in France was referred to where a different regulatory model exists.
Our understanding is that the "Conseil National de l'Ordre
des M
decins" is the competent
authority in France, but the process of registration occurs not
at a national level, but at a regional level (by each d
partement), closer to
the point of employment. In order to practise in France a doctor
must be registered in his or her d
partement with the "conseil
d
partemental de l'Ordre"
and it is at this level that the various checks (carried out in
the UK by the GMC) on good standing and so on are undertaken.
It is also at this level that language checks, on a case by case
basis, are carried out.
Medical Act 1983
5. There is no explicit prohibition in the
Medical Act 1983 (the Act), which prevents language testing.
However, the Registrar is prevented from requiring such testing
because under section 3 of the Act, a person is entitled
to be included in the register of medical practitioners if they
meet the requirements set out in that section. These requirements
relate to the doctor's primary qualifications, which may either
be UK training & qualifications, or recognised European qualifications.
Neither involves a requirement for the doctor to demonstrate knowledge
of English.
6. The way Parliament has transposed the
Directive into UK legislation is in line with the Commission's
own guidance and it is also informed by the history of policy
in this area which dates back to 1979. At that time the GMC did
have a statutory power to require EEA doctors to demonstrate language
knowledge at the point of registration. However, in April 1979 the
European Commission issued a reasoned opinion against the UK on
the basis that our implementation was in breach of the mutual
recognition regime.
7. In 1981, following discussion with the
Commission about the infraction proceedings, the Government repealed
the English language requirements which had been imposed as a
condition of registration in the Medical Act 1956.
8. At the same time, fresh provisions relating
to English language knowledge were introduced to NHS legislation
in relation to the approval and listing of practitioners of medicine
and dentistry to provide NHS primary care services (the precursor
to the current Performers List arrangements).
9. This split between professional regulation
under the Medical Act 1983 and local level approvals and
employment within the NHS have been reviewed but continued in
place since then, as the Medical Act 1983, which replaced the
1956 Act, and the National Health Service (Performers List)
Regulations 2004, both demonstrate.
Possible future changes to the Directive
10. The Department of Health agrees with
the GMC that the current requirements with regard to exchange
of information between EEA competent authorities should be strengthened.
This might potentially be achieved through amendment to the Directive.
11. Amendment to the Directive to enable
checks on language by the UK competent authority at the point
where initial registration occurs, as part of the recognition
process, may also be desirable to provide the GMC with the maximum
possible flexibility, whilst keeping within the principle of proportionality,
to assure itself that doctors are fit to practise. This is something
we would look at taking account of the existing protections available
for NHS patients under the Performers' List regime and guidance
for others providing NHS care.
Department of Health
25 March 2010
42 SI 2004/585. These Regulations apply to England
only. Back
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