Draft Health Care and Associated Professions (Knowledge of English) Order 2015
Draft General Medical Council (Fitness
to Practise and Over-Arching
Objective) and the Professional
Standards Authority for Health and
Social Care (References to Court)
Order 2015
The Committee consisted of the following Members:
Abbott, Ms Diane (Hackney North and Stoke Newington) (Lab)
† Afriyie, Adam (Windsor) (Con)
Ainsworth, Mr Bob (Coventry North East) (Lab)
† Barker, Gregory (Bexhill and Battle) (Con)
† Burstow, Paul (Sutton and Cheam) (LD)
† Garnier, Sir Edward (Harborough) (Con)
† Grieve, Mr Dominic (Beaconsfield) (Con)
† Gwynne, Andrew (Denton and Reddish) (Lab)
Jackson, Glenda (Hampstead and Kilburn) (Lab)
† Jones, Andrew (Harrogate and Knaresborough) (Con)
Pearce, Teresa (Erith and Thamesmead) (Lab)
† Penrose, John (Lord Commissioner of Her Majesty's Treasury)
† Poulter, Dr Daniel (Parliamentary Under-Secretary of State for Health)
Shannon, Jim (Strangford) (DUP)
Sharma, Mr Virendra (Ealing, Southall) (Lab)
† Wilson, Phil (Sedgefield) (Lab)
Anna Dickson, Committee Clerk
† attended the Committee
Fourth Delegated Legislation Committee
Monday 16 March 2015
[Mr Dai Havard in the Chair]
Draft Health Care and Associated Professions (Knowledge of English) Order 2015
4.30 pm
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter): I beg to move,
That the Committee has considered the draft Health Care and Associated Professions (Knowledge of English) Order 2015.
The Chair: With this it will be convenient to consider the draft General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015.
Dr Poulter: It is a pleasure to serve under your chairmanship once again, Mr Havard.
I turn first to the draft Health Care and Associated Professions (Knowledge of English) Order 2015. The Government recognise that overseas health care professionals continue to make a valuable contribution to our NHS, and we are keen to ensure that highly skilled professionals do not face unnecessary barriers to working in our health and care service. However, as I am sure we all agree, it is vital that all health care professionals practising in the UK have the necessary standards of English to communicate with and care for patients, so that we can ensure that we protect the public. As a practising NHS doctor, I understand the importance of effective communication, and I have seen the consequences for patients when communication is ineffective and things go wrong.
The changes being made in the order are a major step forward for the quality of care and patient safety. They build on the language checks that we introduced last year for the registration of health care professionals coming to work in the UK from outside the EU, and the regulations, which we also introduced last year, that provided the General Medical Council with the power to introduce a strengthened system of language controls for doctors from within the EU. Since that legislative change last June, the GMC has required 1,956 doctors from Europe to provide evidence of their knowledge of English when applying for first registration and a licence to practise. To date, 429 doctors have been registered without a licence to practise medicine in the UK due to insufficient evidence of language competence, which shows that our proposals are essential to ensure patient protection and standards of care. We have shown that the current regulations are effective in preventing doctors who are unable to speak English to a sufficient standard from gaining a licence and looking after patients in the UK.
The Department has consulted on proposals to introduce language controls for nurses, midwives, dentists, dental care professionals, pharmacists and pharmacy technicians. The vast majority of respondents to the consultation—99%—were supportive of the proposals. We worked with the Nursing and Midwifery Council, the General Dental Council, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland to identify a system of language controls for EU nurses, midwives, dentists, dental care professionals, pharmacists and pharmacy technicians that will provide greater safety for patients and members of the public. The draft order gives those regulatory bodies the power to apply proportionate language controls, so that only health care professionals who have the necessary knowledge of the English language, together with an assurance that they can do their job in a safe and competent manner, are able to practise in the UK.
The draft order will amend the Nursing and Midwifery Order 2001, the Dentists Act 1984, the Pharmacy Order 2010 and the Pharmacy (Northern Ireland) Order 1976 to strengthen the regulatory bodies’ powers to introduce proportionate language controls, and to require EU applicants to provide evidence of their knowledge of the English language following recognition of their professional qualification but before they are registered and admitted on to the register. We also propose corresponding amendments to the fitness to practise powers of the NMC, the GDC, the GPhC and the PSNI, so that they can initiate fitness to practise proceedings in cases in which a health care professional’s knowledge of the English language may pose a risk to patient safety.
A new category of impairment relating to English language capability will be created. It will allow the regulatory bodies to request that a professional undertakes an assessment of their knowledge of the English language during the fitness to practise investigation if concerns are raised, which they are currently unable to do. The changes will strengthen the regulatory bodies’ ability to take fitness to practise action when concerns about language competence are identified in relation to health care professionals already practising in the UK.
Our overall approach is compliant with EU law, which clarifies, under recent changes to the mutual recognition of professional qualifications directive, the ability of nation states to carry out language controls on European applicants where the profession has patient safety implications. Any language controls must be fair and proportionate. The order will make amendments to the relevant legislation to require the regulatory bodies to publish guidance setting out the evidence, information or documents that a health care professional must provide to demonstrate that they have the necessary knowledge of English language to practice their profession.
Any person who is refused admission on to the register on the grounds that they have failed to demonstrate that they have the necessary knowledge of English will have a right to appeal. The process for determining whether a person has a necessary knowledge of English will be set out in the relevant regulatory body’s rules or regulations, which will amended by the regulatory body in due course to enable the policy to be implemented.
As I outlined, that process has worked successfully for the General Medical Council since it was introduced for doctors. We hugely value the contribution that overseas
health care professionals make to our NHS, but it is important that people can communicate effectively with patients and speak a high standard of English. That is uncontroversial. I am pleased that the introduction of the previous regulations for doctors has improved patient safety and meant that the General Medical Council has been in a position to take action where there has been a lack of language competence. The order will allow other health care regulators to be in exactly the same position. Indeed, it will bring the powers dealing with the language competence of health care professionals from elsewhere in the EU, and the regulatory bodies’ ability to check that competence, in line with powers that have been in place for a number of years in the same professions for professionals coming in from outside the EU. I commend the order to the Committee.I now move on to the draft General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015. This section 60 order will amend the Medical Act 1983 to establish the medical practitioners tribunal service in statute and make other reforms to the General Medical Council’s fitness to practise procedures. Reforming the way the GMC adjudicates on cases in which a doctor’s fitness to practise has been called into question has been a long-term policy objective for this Government and the GMC, following the decision not to proceed with the establishment of the Office of the Health Professions Adjudicator in 2011.
The amendments will strengthen and modernise the GMC’s powers and systems so that it can carry out its fitness to practise adjudication functions more efficiently. They will place the MPTS on a statutory footing and enable the GMC to make amendments to its fitness to practise rules to further modernise the procedures that govern how fitness to practise cases are handled. The reforms will increase the separation between the investigation of fitness to practise cases and the adjudication on what should happen in each case, to enhance public and professional confidence in the system of medical regulation. They will modernise the MPTS’s adjudication function, including a strengthening of the case management arrangements, by introducing enforceable case management directions, including costs for unreasonable behaviour; introducing the ability to hold reviews on the papers where the parties agree; and introducing a duty to use rule-making powers to pursue the objective that cases are dealt with fairly and justly, similar to the courts’ civil procedure rules.
The order will address a number of patient safety issues, for instance by strengthening the power of the registrar to require the disclosure of information from a doctor, and to refer a doctor to the MPTS for decisions on whether to impose conditions in relation to registration or suspend that doctor in the event of non-compliance. The GMC currently operates a rule that enables it not to proceed with an investigation if the allegation relates to matters that are more than five years old, unless it is deemed to be in the public interest to do so given the “exceptional circumstance” of the case.
The Government are using the opportunity of this order to remove the “exceptional circumstance” element, because there has been a developing body of case law that demonstrates that the additional test of having to prove that a case has an exceptional circumstance has
prevented some cases from being taken forward, even when it was considered in the public interest to do so. By expressly setting that out in statute, we are ensuring that an investigation can be taken forward, regardless of the amount of time that has passed, without exceptional circumstances having to be proved. That means that the GMC will be able to investigate an allegation no matter what the circumstances were, or how much time has passed, if it feels that it is in the public interest to do so. That can only strengthen public protection, reduce the risk to patient safety and improve public confidence in the regulator.The order will bolster the objectives of the GMC in relation to its fitness to practise functions, to expressly take account of the need to promote and maintain public confidence in the profession and the need to uphold proper professional standards and conduct, in addition to protecting the health, safety and well-being of the public. However, maintaining public confidence must be considered relevant only in the pursuit of the protection of the public. Its inclusion in the overarching objective will help to ensure that it is given due weight in all fitness to practise cases. The proposed overarching objectives will include the term “well-being”, as that term encompasses aspects of a professional’s role that may have an impact on individual patients—not directly on their health or safety, but nevertheless in a manner that is relevant to the health professional’s clinical care.
Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them. The inclusion of the new term will ensure that the well-being of a patient under the care of a health professional is not disregarded as a standard for regulatory action. The Law Commission’s report states that well-being has already been incorporated without difficulty into the main duties or objectives of regulators, and it feels strongly that, in that context, the term cannot be misinterpreted.
Given the greater separation between investigation and adjudication being introduced in the order, the Government believe that it will be appropriate for the GMC to have a right to appeal against decisions made by the MPTS in cases where it believes that a decision does not protect the public. That will provide a transparent mechanism for decisions to be challenged in instances in which the GMC has concerns about a decision made by a medical practitioner tribunal.
The order will also change the grounds on which the Professional Standards Authority for Health and Social Care can make a referral to the higher courts. It will enable the PSA to make a reference if it believes that a decision is insufficient to maintain public protection, which involves protecting the health, safety and well-being of the public, maintaining public confidence in the profession and maintaining proper professional standards and conduct. The order will ensure that the PSA can take action where it considers it appropriate in the interest of public protection, guaranteeing its right to intervene and take over an appeal when the GMC has withdrawn. The proposed GMC right of appeal would be in line with those revised arrangements.
The Department of Health undertook a UK-wide consultation on making changes to how the GMC makes decisions about doctors’ fitness to practise. The consultation received 81 responses from a range of respondents, including medical and legal professionals,
health care recruitment organisations, regulatory bodies and members of the public. The responses demonstrated strong support for the principle of enhancing the separation between the GMC’s role in investigating fitness to practise concerns and its role in adjudicating on whether those concerns amount to impaired fitness to practise.A significant proportion of respondents—52%—felt that creating an entirely independent body, such as the former Office of the Health Professions Adjudicator, was a preferable approach to establishing the MPTS as a statutory committee of the GMC. However, that included an organised group of 39 co-ordinated, and near identical, responses, which the Department had to consider as individual responses. I will leave members of the Committee to draw their own conclusions.
The Department’s original decision not to proceed with the OHPA was taken in 2011 and endorsed and implemented by Parliament in the Health and Social Care Act 2012. The Government’s approach remains that we should enhance and protect the independence of decision making at fitness to practise panel hearings, to secure public protection and the confidence of both doctors and patients. However, the Department believes that the same benefit as would be obtained by establishing a separate body can be achieved without the expense by retaining the adjudication function within the GMC and increasing the separation between its investigation and adjudication functions. Taking into account the group of respondents who wanted greater separation as well as those who supported the statutory committee model, there was significant support for the principle of greater separation, and we consider that establishing the MPTS as a statutory committee of the GMC is the right means of achieving that.
Our proposals to strengthen and modernise the GMC’s fitness to practice process will make the system more efficient and effective, benefiting patients, practitioners and the health service. They will result in improved public protection and an increase in public confidence in the GMC. I commend the orders to the Committee.
4.44 pm
Andrew Gwynne (Denton and Reddish) (Lab): It is a pleasure, as ever, to serve under your chairmanship, Mr Havard. I thank the Minister for his thorough explanation of both orders.
On the draft Health Care and Associated Professions (Knowledge of English) Order 2015, Labour is absolutely on the side of those wanting to protect patients from the risk of avoidable harm. I share the Government’s concerns over whether the current language testing regime is adequate—the points that have been raised show that it is not.
Like the Minister, I pay tribute to all overseas health care professionals who help to keep our NHS in the state that it is currently in and make it a superb, world-beating service. Despite whatever problems and arguments we may have from time to time, it is still undoubtedly one of the best health care systems in the world.
The language testing of health care professionals from outside Europe is now entirely adequate as a result of last year’s measures, which the Opposition also supported, but there may be a small number of European
professionals whose knowledge of English is not quite at the level that we might reasonably expect. An even smaller number of UK nationals who do not possess the requisite knowledge of English will be subject to testing, where there are concerns. That is welcome. In health, the Government deal in risk, and where there is even the slightest chance of avoidable risk because of policy decisions made in Westminster, we must seek to rectify that. There are very few individuals to whom the provisions will apply, but I am glad that we recognise that there is a problem. In supporting the Minister in bringing the order to the Committee, I would like to raise a few brief questions with him.I am unsure what the purpose is of the addition of the power to implement fitness to practice proceedings. As far as I can tell, professional bodies would already have the power to take fitness to practice action if an applicant’s knowledge of English was impairing their ability to work. They recognised that in their responses to the Minister’s consultation, so it seems a little unnecessary to introduce additional grounds for fitness to practice proceedings. Perhaps the Minister will clarify that.
What support and guidance will the Minister’s Department give individual employers? It is fairly clear that the key filter for those who cannot speak English will tend to be human resources professionals at individual organisations. It is rightly their job to recognise when somebody is simply unable to do the job that they are being assessed for. I hope that they will not end up expecting all applicants who come to their doors to have been fully assessed by the professional bodies, because it remains their responsibility to recognise any problems on the operational level. I hope that the guidance will reflect that.
Finally on the language order, I raise the question of vexatious complaints. We should always balance the public interest and the interest of our medical professionals. I know of many cases in which medical professionals have been subjected to complaints that have turned out to be unsubstantiated, and it has made their lives utterly miserable. The Minister will be fully aware of the political sensitivities around the ability of European immigrants to speak English. I hope he will be able to fill the Committee in on any possible safeguards for doctors who may be subjected to complaints regarding their ability to speak the English language. He will be more aware than most of the importance of protecting a doctor’s reputation, so I am sure he will happily explain that point to the Committee.
In general, though, the changes appear to be entirely reasonable, and they will not meet any opposition from Labour Members. Protecting patients will continue to be a priority for the Department of Health irrespective of the outcome of the next general election.
I now turn to the draft General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015, which is, once again, a fairly uncomplicated order that which meets with the Opposition’s approval. The Minister will no doubt be aware of my reputation for heaping often deserved disapprobation on his colleagues, but even I find it difficult to oppose a general objective of the protection of the public.
I want to ask the Minister, first, how the Department proposes to ensure that the principle of proportionality remains pertinent in all proceedings. In its report on the regulation of health and social care, the Law Commission expressed some concern about
“the examples given which suggested that the regulators were inappropriately imposing moral judgments in essentially private matters under the guise of maintaining confidence.”
The British Medical Association has questioned whether regulations might end up punishing doctors who pose no threat to the health and safety of the public, on the basis that failure to do so might incur the public’s disapproval. The Law Commission further urged the regulators to look carefully at regulatory interventions that do not take some colour from the need to protect the public.
I note that no objections were raised when the draft order came before the Scottish Parliament, and I do not think that we will unnecessarily ruin its clean sheet—it will not run into any trouble from the Opposition. There are no objections from anyone, as far as I can tell, that cannot be rectified by simply changing the fitness to practice guidance. Patient safety is our No. 1 priority, and it will continue to be so. We will not oppose a measure that makes it easier to tackle inadequate medical professionals. I know from the scandals that have happened, including the criminal investigation into Dr Harold Shipman, in my own backyard, how important it is to investigate doctors who prompt difficult questions among colleagues.
I hope for the Minister’s assurances in response to the questions I have raised about both orders, but he can be assured of our support for them.
4.52 pm
Adam Afriyie (Windsor) (Con): I shall not keep the Committee long. I welcome the orders, and have two or three observations and one or two questions.
It is right that the use of the English language and ability to communicate should be part of the basic package of care and be seen, to some degree, as part of a medical or practising standard. I welcome in particular the provisions for the incidence of episodes to be reported in years to come.
I also welcome the fact that the powers in the orders are non-centralising, merely putting an existing body on to a statutory footing and providing clarity for other bodies and health care organisations about when they can or cannot make comments or observations on the behaviour of their members. Furthermore, a key matter is that there should be a right of appeal in all situations, and I wholeheartedly recognise that those rights have been maintained, if not enhanced.
As chairman of the board of the Parliamentary Office of Science and Technology and a former shadow Minister, it seems important to me to ask about the evidence base for measures that are introduced. I am not sure that systematic data will necessarily have been collected on the number of incidents in which language has been an issue for patients—although we are used to the headlines. How many incidents have there been where language and communication was an inherent part of a problem? I understand if that information is not available. I welcome the measures in the language order, because they will require the regulatory
bodies to report—I think annually—on the number of practitioners held to account or judged on the new language criteria.On the matter of extending the time in which a case can be brought, which is currently five years, will the Minister say more about how far it is to be extended? Will it be indefinite? Could someone go back and raise a case from 30, 40 or 50 years ago? If so, will the case be judged on the rules, regulations and standards of practice of that time, or on newer standards? With all types of regulation there is the danger that retrospectivity will creep in, and it would be pretty unhelpful in that scenario.
With those few questions, I am happy to support the orders. I look forward to the systematic gathering of information from the regulatory bodies in future.
4.55 pm
Dr Poulter: I thank both the shadow Minister and my hon. Friend the Member for Windsor for their constructive comments and questions. I had hoped that the orders would be uncontroversial, and they have been proven so. As a package, they will improve patient safety and the quality of care.
I will begin with the points raised by the shadow Minister. On fitness to practise proceedings, the new measures will allow health care regulators to check proactively the language competence of nurses, midwives, dentists and pharmacists before they are able to practise in the UK. Recognition of their qualification will still take place, but there is a difference between that and their having the ability to practise and treat patients. The measures are based on our regulations from last year relating to the General Medical Council, under which the GMC has to recognise the primary medical qualification of an overseas health care professional, but if someone cannot speak English to a good standard and communicate in it, they will not be given a licence to practise.
The language order will also strengthen the ability of the regulators to make a check reactively when concerns are raised about a health care professional’s language competence. In the past, regulators have raised concerns that legislation was not strong enough to support them in taking action as robustly as they would have liked when concerns were raised about the language competence of a professional who was already practising and treating patients. That was the basis for the order, which will strengthen the regulators’ ability to test the language skills of both the existing work force who are already practising and the work force who want to come to practise from the EU, to ensure that everyone can communicate effectively with patients.
The shadow Minister raised the important issue of how we ensure that health care staff do not feel hard done by or misjudged on their skills. There is a right of appeal under the processes in place for the health care adjudicators. That is clear, and if anything it is strengthened by the order.
My hon. Friend the Member for Windsor raised the issue of the evidence base for these measures. In the context of doctors, we will all be aware of the tragic case of David Gray and Dr Daniel Ubani, a German doctor who wrongly prescribed a medication, leading to an overdose; the tragic consequence was the death of
the patient. That case brought sharply into focus the fact that although there were laws that allowed the testing of language and communication competence for doctors and health care professionals from outside the European Union, we needed to introduce similar regulations for health care professionals from inside the EU.To provide some reassurance about the evidence base, since we introduced the regulations relating to the General Medical Council on proactive and reactive checking of the language competencies of doctors, 429 doctors have been registered without a licence to practise. In only about a year, therefore, the GMC has taken action to prevent 429 doctors from being licensed to practice because of concerns about language competence. The regulator is making clear its view that some doctors might otherwise have come to work in the UK who would not have been safe to do so because of their inability to communicate effectively in English. The GMC is certainly developing a strong evidence base for that, which helps to underpin the evidence to support other regulators having similar powers.
My hon. Friend made a point about the time limit in the GMC order. It would not only have to be proportionate, but it would have to allow the health care regulator to look at the circumstances surrounding a case. For example, the Mid Staffordshire case and the Francis inquiry are still relatively fresh in the minds of many of us. The feeling might well be that it was in the public interest to investigate some cases further as a result of such inquiries. The order moves us away from an artificial “exceptional circumstances” definition, which is difficult to pin down. Instead, we are saying that cases in the public interest should be looked into. It is not a power that the GMC would use arbitrarily.
There is also good law on the matter. My right hon. and learned Friend the Member for Harborough might quote Lord Denning at us—that we cannot judge a case by modern standards—and point out that we have to look at the circumstances and at what good medical practice was at the time. What a reasonable doctor would have done at the time is absolutely the right principle to underpin how the GMC proceeds.
Finally, the shadow Minister made a point about the potential of a GMC hearing to intrude upon or raise issues in a doctor’s private life. That should clearly not be the case, and I understand that the GMC has been working to reassure the British Medical Association that it is not. What doctors do in their private capacity should not in any way come into their professional life, unless it is something to do with broader protection of the public, such as in the case of certain behaviours that might be criminal. For example, if doctors have committed criminal acts, they might well have to refer themselves to the GMC and declare any conviction as part of the annual registration process, alerting the GMC so that it may take a view. Otherwise, the matter of someone’s personal life certainly should not be taken into account. There is a distinction between what happens outside and inside work, unless criminal sanctions are breached, which could be relevant. The GMC would not have any wish to look into someone’s genuinely personal life in any fitness to practice proceedings, and I have been reassured of that in formulating the draft orders.
With those reassurances, I further commend the draft orders to the Committee.
That the Committee has considered the draft Health Care and Associated Professions (Knowledge of English) Order 2015.
DRAFT GENERAL MEDICAL COUNCIL (FITNESS TO PRACTISE AND OVER-ARCHING OBJECTIVE) AND THE PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE (REFERENCES TO COURT) ORDER 2015
That the Committee has considered the draft General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015.—(Dr Poulter.)