Recognition of Professional Qualifications
The Committee consisted of the following Members:
Alison Groves, Committee Clerk
† attended the Committee
Recognition of Professional Qualifications
It may be helpful to the Committee if I take a few minutes to explain the background to the Commission’s proposal, and the reasons why the European Scrutiny Committee recommended it for debate. EU member states collectively regulate nearly 5,000 different professions, 219 of which are in the UK, so a system for recognising qualifications obtained in another member state is needed to limit barriers to employment mobility, while also maintaining public confidence in the professional competence of individuals working outside their home state.
A 2005 directive established rules for the recognition of professional qualifications, but it is long and complex. At its core is a system of automatic recognition for seven professions—doctors, nurses, midwives, dentists, pharmacists, veterinary surgeons and architects—based on minimum harmonised training requirements, and a general system for the recognition of other regulated professions, based on the principle of equivalence of qualifications.
The main beneficiaries of the directive are health care professionals who account for 59% of recognition decisions, followed by teachers at 17%. However, employment mobility within the European economic area remains at a low level, with a small proportion of UK nationals—only 880 in 2010—obtaining recognition of their professional qualifications in another EU or EEA state. By contrast, more than 11,000 recognition decisions in 2010 concerned EEA nationals who wished to exercise their profession within the UK, so one can see the disparity in movement.
The changes proposed by the Commission are intended to promote employment mobility by simplifying the existing system to make it more transparent and efficient, and by encouraging member states to reduce the number of regulated professions. The Commission also proposes new safeguards to address public concern that increased mobility, especially among health professionals, may expose the public to health or safety risks.
Those safeguards include the introduction of a specific alert mechanism for health professionals whose qualifications have been recognised under the automatic system but who have been banned, even temporarily, from practising in a member state. The alert would notify all member states of the ban. In addition, systematic language proficiency tests would be permitted for professions that have patient safety implications. It is essential that any changes to the current system of
The European Scrutiny Committee recognises that the Government and UK stakeholders welcome many of the changes proposed by the Commission. It has, however, highlighted a number of concerns that the Minister may be able to address today. First, we are concerned at the limited scope of the proposed new alert mechanism, which would apply only to health professionals covered by the system of automatic recognition. Why not extend it to all health professionals, regardless of whether their qualifications have been recognised under the automatic recognition or general system? Why not also include any conditions or restrictions that have been imposed on a health professional’s ability to practise? The Government say that that would endanger the data protection rights of individual professionals, but perhaps the Minister will explain his concerns more fully.
Secondly, the new provisions concerning the language skills of individuals whose professional activity has “patient safety implications” are unclear. Does the Minister agree with UK health and social care regulators that it should be possible to require individuals to provide evidence of their language proficiency before registration and, if necessary, to undertake some form of language assessment?
Thirdly, does the Minister accept that individuals seeking automatic recognition of their qualifications, particularly in health care, should be required to provide evidence of current practice? Does he agree that the draft directive should require the Commission to work closely with competent national authorities and member states when determining the content of delegated Acts on matters as important as the updating of the minimum training requirements needed to secure automatic recognition of medical and other professional qualifications?
Finally, will the Minister say more about the safeguards that the Government will be seeking to ensure that the proposed introduction of a new European professional card does not dilute the role of the host state in confirming that an individual who wishes to exercise a professional activity in its territory is competent to do so?
The Minister for Further Education, Skills and Lifelong Learning (Mr John Hayes): Thank you very much, indeed, Miss McIntosh. I thank the Committee and the hon. Member for Linlithgow and East Falkirk for the opportunity to answer questions in the debate as it proceeds, but I felt that, following the contribution we have already heard, I wanted to set the matter in context.
The European Commission has decided to amend the directive, and it is important that we have constructive solutions of the kind proposed in many of the directive’s provisions. I would like to highlight three main areas where the revised directive could have an impact.
The first of those that I think we are all aware of—it has been mentioned already, indeed, in our brief deliberations—is that affecting public health, particularly
The system of automatic recognition has the effect of restricting the checks that UK regulators for the professions can perform on the qualifications and competence of migrants, as competent authorities are bound to recognise a qualification that is listed in the directive where it has been issued by another EEA competent authority. Importantly, the directive does not limit checks on professionals by employers. I have pressed my officials very strongly that we should not do anything that inhibits employers, as part of recruitment, taking into account the language skills of those entering Britain.
Systematic checks on language knowledge by regulators are prevented by case law of the European Court of Justice. Nevertheless, as I say, there is capacity at employer level to put in place appropriate checks to ensure suitability. There is certainly room for improvement to ensure that UK patients are protected. Hon. Members will be aware of recent high profile failures on the part of individual migrant health care professionals from the EEA that have resulted in cases where there has been harm to UK patients. We therefore especially welcome Commission proposals that strengthen the ability of health regulators to safeguard patients and the public at large. In particular, we are pleased that the Commission has proposed an alert mechanism that obliges member states’ competent authorities for health professions to alert other countries when they have concerns about a professional. That does not happen routinely at the moment. Such a change is positive.
We are working with European nations to ensure that the mechanism is effective and comprehensive. We want to make very certain that adequate safeguards are in place at EU level to prevent unsuitable health care professionals from practising in other countries. There is also greater scope for language checks to be applied to health professionals after the point of registration. That needs clarifying in the text, but we believe it will complement the Department of Health’s plans to give responsible officers powers to check language ability. That is the subject of consultation that will end later this month, following which we will be able to firm up our position in that regard.
The European Commission has proposed a number of other changes to the directive where we will need to ensure attempts to increase free movement do not compromise patient safety. Those include a professional card accompanied by a fast-track application process and changes to the general rules for recognising professionals. Those might help some professionals, but we certainly want to ensure that the changes would not prevent proper checks being undertaken when public health—public safety—could be at stake.
The directive does not just affect health. The second impact the changes could have is on improving the single market and the free movement of professionals. Many skilled professionals and the businesses they work for benefit from the directive when they want to trade in a different member state. The directive obliges competent authorities to take proper account of professionals’
Thirdly, the directive has a significant impact on the training of professionals in the UK. It sets legally binding minimum training standards for the seven professions covered by the automatic recognition system, which include the majority of health professionals. Changes have been proposed to the number of years and hours those professionals are required to spend in training. We want to ensure that universities can provide more flexible arrangements for postgraduates who have relevant prior learning, without reducing the skills professionals are required to have before they are recognised.
I am afraid that EU negotiations on the revised directive have made slow progress, as the Danish presidency understandably focused its resources on other areas. The European Parliament plans to propose amendments in the autumn and to vote on them in plenary next January. We do not expect the revised directive to be agreed, at the earliest, before the end of the Irish presidency of the EU in the first six months of 2013. Discussions continue. My Department continues to work in collaboration with the Department of Health, and other Departments and the devolved Administrations who have an interest in this area.
In that spirit, and with what I hope was a clear explanation of the circumstances—I am grateful to the hon. Member for Linlithgow and East Falkirk—I hope that Members will be able to support the motion and the Government’s approach to the directive.
Mr Gordon Marsden (Blackpool South) (Lab): It is a delight to serve under your chairmanship, Miss McIntosh. I apologise for beginning with a procedural question: I understood that the usual form, custom and practice is for the Opposition spokesperson to make a brief statement following the Minister’s statement.
The Chair: Perhaps I may be of assistance. The format is confusing, because it is different from delegated legislation procedures. We have an hour, until 5.30 pm, for questions. To encourage interest, we could extend that, if it is heavily subscribed. The questions can be grouped, and Members can ask two or three together and can come back following the Minister’s reply. It is then customary for the Minister, if he wishes, to set out his view in the debate, and the hon. Gentleman may respond at that stage. We have questions until 5.30 pm.
Two or three specific points came out of what my hon. Friend the Member for Linlithgow and East Falkirk said about why the Committee raised the issues. Incidentally, I am grateful to the European Scrutiny Committee for raising the questions. I would like to ask the Minister two or three fairly specific questions. Listening to his opening remarks on the role of European case law in restricting systematic checks and, not least, looking at correspondence that I and, I suspect, other Committee members have had from various groups, it seems that this is potentially—I say no more than potentially—a concern. Can the Minister clarify what position the UK Government have taken on the implications of case law restricting systematic checks? How has that been put across to Commission and EU members?
The Minister also talked about safeguards and responded to the points made by my hon. Friend the Member for Linlithgow and East Falkirk. The issues about the safeguards are for the Department of Health, but I want a little more detail on how those safeguards will be carried through, not least on which bodies will carry them through. We are in a time of considerable structural change—some would say upheaval—in the NHS, and it would be helpful if the Committee and I had some indication of what the responsible authorities in the NHS would be that would take those safeguards through.
Finally in this first group of questions and related to my previous point, there is the issue of how far the new safeguards would apply, given the concerns about child abuse and other issues that pop in and out of our headlines on a daily basis. It would be helpful to know what conversations there have been between Ministers and the Department of Health on how the passporting of information about social care professionals between this country and other countries would work in the UK and whether that would involve individual police forces or social service authorities.
Mr Hayes: I will deal with the questions in the order in which the hon. Gentleman asked them. Before I do so, with your permission, Miss McIntosh, I will respond to the question asked by the hon. Member for Linlithgow and East Falkirk, to which the hon. Member for Blackpool South alluded, about the proposed alert mechanism. The critical thing is that, where concerns are raised with a health care professional, practical information sharing is one of the top priorities. The directive proposes a proactive alert mechanism for all professionals where automatic recognition based on minimum training standards would apply. It would include, for example, doctors, nurses, midwives, pharmacists, dentists, veterinary surgeons and architects. It would oblige competent authorities for the professions to
“inform the competent authorities of all other Member States and the Commission about the identity of a professional who has been prohibited by national authorities or courts from pursuing, even temporarily, on the territory of that Member State the following professional activities”.
As I understand it, the alert mechanism does not exist at the moment, although the mechanisms that allow it to operate do. In other words, the information that is currently held by the responsible authorities in each member state facilitates that mechanism, provided that what they do is shared across member states.
On the points that the hon. Member for Blackpool South raised directly, case law in this area is quite complex, but the case law from the European Court of Justice precludes systematic language testing as a requirement for registration. European Commission guidance based on the current directive and case law also states that the lack of language cannot be a ground for a refusal to recognise qualifications.
The critical thing, which I wanted to test when I was looking at this matter—the hon. Gentleman wanted to test it too—is that the recognition of qualification and employment are quite different things. It is entirely possible that the organisation responsible for employing a professional may choose to make an assessment of their suitability, although it recognises that they are qualified, and part of that may be on their ability to communicate. Of course, that is a matter of language—to be able to understand, communicate in and speak the language of the country in which you are pursuing your profession—which is not therefore, in legal terms, a systematic bar, but a matter of discretion at employer level. In essence, that is the difference, but I am told that it is more complicated.
I should say that both the directive and the Commission support the idea of having such a language test before someone is taken on board, so there is no contradiction. It is a matter of at which point the essence of that discretion is exercised. However, there is a complication, I am told. The Government are seeking clarity with the Commission about the relevant article in the directive, which may change even that assumption against systematic checking.
While the cover position, the fall-back, is the check at employer level—typically a health authority, to answer the hon. Gentleman’s question—it seems there may be some movement on language skills by the Commission, to be less prescriptive about the regulator, the General Medical Council, which would take a view about someone’s competence as a professional as well as in language skills. We are seeking clarity on that, which is why I cannot be absolutely firm with the Committee today. As hon. Members know, the directive is still being negotiated and dialogue still taking place. The straightforward answer was the first part, but I wanted to give the hon. Gentleman the further information that I have elicited, that clarity is being sought.
Mr Marsden: I am grateful to the Minister for expanding on that point. I urge him and the Government to persist in that area, because it is one of considerable public concern and confidence. A number of cases—one or two of them fatal—have been alluded to in which these issues have arisen, as well as those mentioned by organisations that have written to us, including the Alliance of UK Health Regulators on Europe.
Mr Hayes: Indeed. That leads me to the second question: how the Government intend to put in place the appropriate checks of the kind recommended by the organisations the hon. Gentleman mentioned, notwithstanding that apparent movement on the part of the Commission and the greater clarity we seek, and the possibility, through the negotiations on this directive, of the position improving still further. Notwithstanding that, the Government are anxious to ensure that, even with the terms of the current assumptions, we can put
The Department of Health’s proposal is to build on the existing role of responsible officers. That would clarify and lead us back to the General Medical Council and apply where any language concerns arise. The duties of responsible officers are set out in the Medical Profession (Responsible Officers) Regulations 2010, with which I am sure we are all intimately familiar—for the record, SI2010/2841—and include ensuring that procedures are in place that, where there are concerns about a doctor’s fitness to practise, they are investigated and referred to the General Medical Council where appropriate.
The Government have begun a consultation that ends on 25 July, with a view to ensuring that health authorities act consistently in applying the kind of standards the hon. Gentleman has requested. He and I, as well as other hon. Members, have routinely heard from constituents and others that they have encountered problems in this regard. It is an open secret that there are many people who encounter medical professionals with whom they struggle to communicate. That is bound to compromise good practice, given that the nature of diagnosis involves communication. Certainly, the role of explaining treatment, and providing the context in which people can be treated and recover, is intrinsically associated with good communication. At the conclusion of the consultation, the Government’s stated aim is to firm that up across health authorities, with a view to putting into statutory terms the checks that employers make on suitability, including language. I know that that will be very much in line with what has been called for today.
The third point raised by the hon. Gentleman is one that I recently received inspiration about, not having inquired about it previously with as great a diligence as he has. The inspiration has wound its way to me. I referred to social workers and care professionals. An alert mechanism has been proposed in this case too. Regulators will use that mechanism to send alerts about unsafe professionals and professionals who have been banned or suspended.
However, we would like the alert mechanism, which applies to automatic recognition professionals, also to apply to social workers and other professionals with public health and safety associations. What the hon. Gentleman has asked for, entirely appropriately, is for the standards that will be applied to health professionals, where the driver is public safety, to apply reasonably to those professions where there is an obvious link to public well-being. We are sympathetic to that view. The alert mechanism is, as I said, central to the change and will be subject to further discussion. I have heard what he says, and we will certainly take his view, which is also mine, into account when we conduct those discussions.
The Chair: I have given wide latitude on the length of both questions and answers, but I do not wish to pre-empt the debate to follow. I ask for shorter questions and answers so that we can make progress.
Jacob Rees-Mogg (North East Somerset) (Con): It is a pleasure to serve under your chairmanship once again, Miss McIntosh. I remember what you said to me once about the picture above, so I shall be careful when talking about the Danes.
“in the case of healthcare professionals, language testing may be carried out if ‘expressly requested by the national heath care system’ or, in the case of self-employed healthcare professionals operating outside a national health care system, at the request of a representative national patient organisation.”
Mr Hayes: My hon. Friend will be familiar with the tragic case of a German doctor, who had an extremely patchy record in his own country—I put that at its most generous—practising in the United Kingdom and treating a UK citizen with tragic consequences. Leaving aside the issue about language, the alert mechanism would have prevented that doctor from practising here, because the record to which I have referred would have been made known under the terms of the directive. It would not have got to the point where, regardless of his capacity to communicate, he would have been treating someone with the dreadful consequences that he did.
The history of the issue is a mix of competence, good information sharing and communication. The overlap between them is, as he described, quite complicated. None the less, the essence of the point remains. It is true that any organisation can put in place the checks of the kind that he has mentioned and that I have recommended; indeed, the consultation that we are engaged in is to put those kinds of checks on a statutory footing. They are there now, in the terms that he puts them, but we are keen to make them statutory, largely to guarantee consistency. That is not the same in these rather refined matters as a systematic check on language which would emanate from the General Medical Council. In my answer to the previous question, I suggested that even that might come to pass when we have established whether that is the Commission’s intention. Yes, people may check in the way he describes and, yes, that happens already, but we are keen to make it more consistent, and we are doing so through the consultation, which may be followed by statute.
Jacob Rees-Mogg: I am grateful for that answer. I want to move on to a question about the possible development of a common training framework for specific professions that are regulated in at least nine member states. Is there any opportunity for the European Union to regulate professions in the United Kingdom that are not currently regulated to a common European standard? If that is proposed, will the Minister oppose it?
Mr Hayes: As I understand it, that is not the intention and it is certainly not in the argument that has been prosecuted in pursuit of this. I share my hon. Friend’s scepticism about the efficacy of such a change. It is important that these directives ease proper communication between member nations, and aid the exchange of skills
Jacob Rees-Mogg: I want to take up a point made by the hon. Member for Linlithgow and East Falkirk in his opening statement about the 11,118 professionals who wanted to practise inside the United Kingdom, and only 880 from the UK who wanted to practise in other EEA states. Does the Minister believe that that might be a suitable area for the repatriation of powers in any future renegotiation of our relationship with Europe, because it seems that we are a great magnet for other people, which we could regulate that very well ourselves, and it is not enormously popular with UK nationals.
Mr Hayes: Guided by your benevolent sagacity, Miss McIntosh, I will not deal with the question that my hon. Friend raises, because it would oblige me to stray into matters well outside the directive. Suffice it to say that I have come to the conclusion over many years that one is more likely to achieve the sublime by focusing on those things closest to one.
Jacob Rees-Mogg: I was not trying to get into a long discussion of the European Union, but the directive deals with something that is hugely imbalanced, so the question is whether the whole idea of the directive is in the interests of the United Kingdom.
The Alliance of UK Health Regulators has asked that the legal base of the directive should be article 168 of the treaty on the functioning of the European Union, which provides for the inclusion of public health and safety. Is that the view of Her Majesty’s Government? Will the Minister explain what the advantages or disadvantages of that legal base being quoted would be?
Mr Hayes: While I am seeking further thinking on the legal framework, let me refer to common training standards. The context of my hon. Friend’s question, and the penultimate question was the fear—I do not want to exaggerate his concerns—that a pan-European training standard might be developed. The directive is based on existing standards and it is fair to say that Her Majesty’s Government and other member states do not aim to create new regulations in this regard. Certainly where a European-wide approach is needed it is critical that any such approach is driven by the activities and wishes of individual member states or, as I prefer to call them, sovereign nations.
The question on the law was both cogent and detailed, and it ill behoves me to give an answer that is any less cogent and detailed. With my hon. Friend’s permission and your indulgence, Miss McIntosh, I will write to him about the detail of the law in this regard.
That the Committee takes note of European Union Document No. 18899/11 and Addenda 1 to 3, relating to a Draft Directive amending Directive 2005/3 6/EC on the recognition of professional qualifications and regulation on administrative co-operation through the electronic Internal Market Information System; and supports the Government’s aims of reducing disproportionate regulation of professions across the EU, by arguing for flexibility in relation to minimum standards of training for health professions, improving safeguards for patient safety when EU professionals cross borders, in particular through the introduction of a system of alerts identifying professionals who are suspended from practice and ensuring that, where appropriate, language checks can be performed before a health professional starts to practise.
I am grateful for hon. Members interventions and the constructive discussion that we have had this afternoon. Many of the provisions in the draft directive are helpful and sensible, but we are clear that an appropriate balance must be struck in the freedom of movement of professionals, which is desirable. This debate is often conducted in respect of health professionals, but it has implications for other businesses and professions. In allowing greater penetration by UK professionals and businesses into European marketplaces this is helpful. However, proper concerns have been expressed by hon. Members on both sides of the Committee about patient safety and national competence.
I have set out how the Government are approaching the negotiations and continue to work in close collaboration with the Department of Health and other Departments with an interest in the area, as I have described. The matter is continuing and unlikely to be resolved in the short term, as I made it clear at the outset. It is critically important that we use this as a catalyst, alongside the Department of Health work I mentioned, to improve the standards of, in particular, language skills of people practising as medical professionals in this country. Both Government and Opposition Members agree with that aim and I hope, in that spirit, that the Committee will support the motion and the Government approach to the directive to protect UK interests.
Mr Marsden: I am grateful to the Minister for his responses to my specific questions and for the interventions of other Committee members, especially the hon. Member for North East Somerset, because it is absolutely right that we look carefully at—I will not say guard jealously against—changes that might have unintended consequences further down the line. The hon. Gentleman was quite right to talk about the initiation of new regulations.
In such circumstances, given the case history—sadly, we have the case to which the Minister referred of Dr Ubani, the German locum GP who was struck off the medical register—although we want to build a consensus for European co-operation, we have to work on the basis of the precautionary principle. Under that principle, we should proceed by looking at not what the best regulatory situation in other EU countries might be, but what the worst might be—or the least good, if I want to be more irenic. I shall not stray from the subject, other than to say that that is the basis on which Members on both sides of the House have consistently supported the Schengen principle, which we should continue to observe and respect.
The Minister is right to focus this debate on health aspects, because they are particularly germane and concerning. I am grateful that he, with his colleagues in the Department of Health, is going to press ahead on the issue of social care, because that is extremely important and, without wishing to be Cassandra, an area in which problems could arise in future. I hope therefore that the Government will be robust, because the original letter that was sent by the Minister’s departmental colleague to the Chair of the Scrutiny Committee on 21 February 2012 suggested that the Government were being a little cavalier in that area. I know that the Minister likes to think of himself as a cavalier, but I am glad that on this occasion he has taken a more roundhead approach.
I also want to comment briefly on what the Minister said about not seeing the regulation simply in terms of health. It is important that we think about other professions and professional qualifications. The hon. Member for North East Somerset made an observation about that, and I can make another that is directly relevant to the post that the Minister holds and that I shadow. On minimum training competencies in the professions, the Minister will be aware of the issues that arose under the previous Government through the Bologna process in respect of higher education qualifications. At one stage there was a real concern that the agreement on pan-European qualifications would directly and specifically disadvantage qualifications that had been tried and tested in this country. Furthermore, in the higher education area, those qualifications are a major attractor of foreign students to this country.
Mr Hayes: As an aside, I have just noticed that we are sitting under Alfred inciting the Saxons to repel the Danes, Miss McIntosh. Given your antecedents and my Saxon heritage, what more appropriate picture could act as the backdrop to our discussions?
The hon. Gentleman might be interested to know that we are in discussions about the directive and higher education, and I am anxious to ensure, notwithstanding what he says about Bologna, that everything in the directive is consistent with the interests of our higher education system in exactly the spirit that he has identified.
Mr Marsden: I am grateful to the Minister for that his intervention. He will be aware that his ministerial predecessor, the former Member for Harlow, was particularly robust in his position, and I hope that the Minister will be similarly robust.
Times are changing in further education, and further education qualifications are far more likely to enter the frame of European co-operation and collaboration than before. It is therefore important that there is consultation with not only higher education associations and bodies, but further education ones, including the Association of Colleges, the Association of Employment and Learning Providers and others. The devil is in the detail in all such worthy attempts to encourage collaboration and passporting across the European Union, and we have to be careful that that devil is given his due.
Broadly, it is hugely beneficial to the United Kingdom economy that well-trained, capable people come here to work. That provides skills that we do not necessarily have and ensures that we have a more competitive and thriving economy, so even if we were not in the European Union, we would still want to welcome people to this country with the suitable qualifications to work here.
My concern is twofold: first, the worry I outlined in my questioning on the risk of the spread of regulation; and, secondly, the concern enunciated by the shadow Minister that although some European countries have very high standards with which we can be enormously comfortable, some of the more peripheral member states do not have the same high standards. We ought to be allowed our own system of judging whether qualifications are compatible with those in the United Kingdom and which areas are going to be compatible.
For example, you might think, Miss McIntosh, that it would be very useful to recognise legal qualifications, but that would run into particular difficulties in the United Kingdom, which has a very different legal system from most other EU member states. I think that common law applies only in the UK, Ireland, Cyprus and Malta, and all other member states have a different legal system. There are some areas in which the cross-recognition of professional qualifications would not apply at all. The risk is that if there are some countries with low standards, the European competence will be extended so that it goes from being a common recognition of standards to being minimum standards, and then the minimum standards are adopted as European standards, with a further leech of competence to the European Union.
I am broadly supportive of the Government’s position, but it is important to keep an eagle eye out for how this develops and to ensure that we do not risk the safety of British subjects through an aim to get a wonderfully pro-European world.
Ultimately, the responsibility is with the employer to ensure that someone is capable of doing their job. Suitability in those terms includes both their professional competence and, in my judgment, their ability to communicate. That will remain paramount to the Government’s considerations in ensuring that public safety is guaranteed and that the British national interest prevails as, in the spirit of Alfred, we move forward to take these matters to Europe.