28.Today over sixty thousand people from EU countries outside the UK work in the NHS and around ninety thousand in adult social care. In addition to health professionals and care workers there are many staff in important (but not directly caring) roles without whom the NHS and social care would struggle to function effectively. As an example, Professor Ian Cumming, Chief Executive of Health Education England, noted that “within catering in the NHS, within our hospital kitchens, you will find quite a lot of people who are EEA nationals, or indeed non UK, non EEA nationals.” We welcome the Secretary of State’s unequivocal recognition of the value of R-EU workers in health and social care:
The 90,000 staff from the EU who work in the social care system and the 58,000 who work in the NHS do a brilliant job. Frankly, we would fall over without their help. That is why it is a very early priority for us to secure, as quickly as we can, agreement for their right to remain in the UK and continue their great work.
29.The analysis of the role of R-EU workers in health and social care encompasses the full span of the workforce in terms of skills and remuneration. In addition to any measure of the numbers of R-EU staff on which our services rely, it should, at the outset, be acknowledged that access to skills and expertise is as significant a part of the debate as the total headcount. This is also about the bureaucratic, financial and time barriers to recruiting and retaining staff from outside the UK.
30.The latest nationality figures published by NHS Digital for 30 December 2016 showed 60,058 EU national staff working in Hospital and Community Health Services (HCHS). This is a record figure and indicates a 10% increase in the number of EU staff working in the NHS since December 2015. EU national staff make up 5.1% of the EU workforce and doctors have the highest proportion of EU staff at 9.3% of the workforce.
31.Gavin Larner, Director of Workforce at the Department of Health, provided an overview of the turnover of EU staff for the period immediately after the outcome of the referendum compared to the same period in 2015:
A total of 4,863 EU nationals joined the HCHS workforce between June 2016 and September 2016. This is just 126 fewer than who joined in the corresponding period of 2015. However the number of leavers increased between the two periods by 604, from 3,254 to 3,858.
Within this, the turnover of EU national doctors remained fairly constant between the two periods, with a slight increase of 79 in the number of joiners, from 1,212 to 1,291, whilst the number of EU national doctors leaving barely changed.
The number of EU national nurses joining fell by 173 from 1,409 in to 1,236, whereas the number leaving increased by 298, from 1,017 to 1,315.
32.The impact of Brexit on recruitment across different sectors has proved difficult to measure and at this stage it is too early to make a comprehensive assessment.
33.Whilst there has been a slowdown in recruitment from R-EU nations this may not necessarily be wholly attributable to the outcome of the referendum, and this has been evidenced by the trends in registration of nurses and doctors. Data from the Nursing and Midwifery Council has shown a substantial reduction in the number of applicants to the nursing register from EU nationals since the referendum on the UK’s membership of the EU. The NMC’s data return sent to the Department of Health noted, however, that the reduction in applicants may, in part be a consequence, of the introduction of language testing for EU nurses. In oral evidence Jackie Smith, Chief Executive of the NMC, noted that there had been a spike in applicants to the nursing and midwifery register in advance of new language testing being introduced and a drop off in applicants following it. English language tests were introduced for nurses coming to work in the NHS from R-EU nations in January 2016. Ms Smith said in evidence that the NMC do not know conclusively what caused the decline in R-EU nursing applicants.
34.Comparative data for the months September–December show a 75% reduction in applicants for the same period in 2016 compared to 2015:
Monthly average of EU nurses and midwives joining the register for the first time
35.Similarly, the GMC record monthly statistics which have shown a decline in the number of applicants from the R-EU to the GMC’s register since June 2016, though not to the same extent as with nursing applicants. The GMC has noted that the decline in applications is broadly in line with a general downward trend in licensed EEA doctors on the register from most areas of the EEA in recent years—a trend that predates the outcome of the referendum. In 2014 the GMC was given the right to apply language tests to EEA doctors if concerns were expressed about competence and they said that this had an impact on registrations from EEA applicants:
Following the introduction of English language requirements in 2014, the number of new doctors who graduated in the EEA joining the profession halved from 2014 to 2015. From 2011 to 2014, the number of EEA graduates joining increased slightly, but the trend reversed in 2015 and fewer now join than in 2011. Between 2011 and 2014, the number leaving has almost doubled.
36.Commenting on the factors which may determine the trends in the recruitment of EU staff, Danny Mortimer, Chief Executive of NHS Employers, explained that changing recruitment strategies by trusts may have had an impact:
We are seeing a decrease in recruitment. There are lots of factors going on there. Some of it is because employers have not been out to recruit because of the lack of certainty. They would like more certainty before they go back out to recruit in southern Europe, in particular. Some of it is because we are not seeing the volume of applications that we have previously seen; some of it is because perhaps colleagues in those countries are making some slightly different choices.
37.The Department of Health’s written evidence provided an overview of broad regional dependency on EU staff across England. Although not a comprehensive breakdown, it confirmed that London and the South East of England have the highest proportion of R-EU staff in the NHS:
38.We note that dependency on EU staff extends beyond England to all parts of the UK. For example, almost 6 per cent of doctors in Scotland obtained their primary medical qualification from non-UK academic institutions in the EEA.
39.Examining the regional effect in adult social care, Professor Martin Green, Chief Executive of Care England, described a slightly more nuanced picture. Professor Green noted that it is difficult for social care providers to recruit low paid workers in areas of low unemployment. In addition he said that rural areas are particularly dependent on people from R-EU taking low paid work in adult social care:
there are some areas where it is very difficult to recruit, certainly in social care. Often, people have come from the EU into those areas where it has been nearly impossible to attract candidates. For example, in some rural areas it is very difficult to attract people into social care, so EU nationals have gone into those services.
40.In January 2017, Professor Ian Cumming, Chief Executive of Health Education England, wrote to us outlining Health Education England’s position on the impact of Brexit on the NHS workforce. He said that a significant area of concern is the uncertainty caused by the referendum:
Given the level of uncertainty involved in the final position related to freedom of movement, and any new migration controls which might replace these freedoms - and how these might apply to skilled and unskilled workers in the NHS, it will continue to be difficult to quantify any potential impact of any potential changes to applications to training and overseas recruitment of professionals until the details of a negotiated settlement are clear, and indeed we may not see until any impact until any changes come into force.
41.Exploring this theme further, Danny Mortimer, Chief Executive of NHS Employers, said that uncertainty around the future rights of EU nationals in the UK had an impact on recruitment and retention in the NHS:
Some hospitals in the NHS have done a lot of work with their EU nationals. Cambridge, for example, has done quite an extensive survey and had a series of conversations with its staff. A number report that the need for certainty and the lack of certainty at the moment is making them question whether they stay in the longer term. They have stayed in this period since the referendum result, but slightly more of them are worrying about whether they should leave in the longer term.
42.Professor David Lomas, Vice-Provost Health, UCL and spokesman for the Association of UK University Hospitals, described how University College Hospital Foundation Trust and University College London are attempting to reassure their clinical and research staff, and the impact on the retention of R-EU staff:
We have not seen people leaving. We have worked extraordinarily hard to reassure them, and we believe that you will give them the right to remain. [ … ] Our message is, “It will be okay. Trust us. We think it will be fine.” That is the message we are giving out to medical staff.
Professor Lomas also said that as a trust UCLH are advising their R-EU staff to be pragmatic and not to become entangled in the process of applying for permanent residency, a stance also taken by NHS Employers:
We have had people going through the application process; [ … ] It is truly awful, and we are saying, “Don’t. Just hang on and keep your fingers crossed, and it should all be fine.”
43.The impact of Brexit on health and social care workers has yet to be fully measured or investigated. However, some worrying trends have emerged. Charlie Massey described a survey undertaken by the GMC to better understand how doctors from the R-EU are responding to Brexit:
About 2,000 EEA doctors replied, which is about 10% of the EEA doctor workforce in the UK. Of those, a slightly higher proportion said they were considering leaving the UK—about 60%—and, of those, about 90% said that was because of Brexit. Of the 2,000, just over half said they were considering leaving because of Brexit.
That needs to be treated with a degree of caution. This is a self-selecting group of people who have responded to that survey. What people say is not necessarily going to be predictive of future behaviour, but it sends a worrying signal in terms of the stock of doctors currently working in the UK.
44.Workforce data published by NHS Digital and referred to in evidence from the Department of Health has added a degree of credence to concerns that clinical staff from R-EU are now choosing to leave the NHS. In 2016 EU staff made up 6.6 % of all staff choosing to leave the NHS, up from 5.7% the previous year. Furthermore, the number of EU nurses choosing to leave the NHS increased from 7.5 of all leavers in 2015 to 10% in 2016. There was no such growth in the number of doctors leaving but Charlie Massey provided an insight into the reasons why some doctors may eventually choose to leave their posts in the UK:
If you look at what people said in their free text comments in our survey, basically there were two reasons that came out as being the drivers of that: first, a question of whether doctors felt valued and wanted in the NHS; and, secondly, a question of the uncertainty over their continuing and future residence status.
45.The question of whether doctors felt valued was acknowledged by the Secretary of State, who expressed concern that the biggest risk arising from Brexit is “around the morale and motivation of the brilliant EU staff who already work in both the health and the social care systems.”
46.Commenting on future arrangements for existing R-EU workers in health and social care, the Secretary of State of Health said “securing their rights to continue to live and work here is our top priority.” Discussing how this might work in practice, Danny Mortimer noted that a cut-off date could be applied which would preserve the rights of workers already in the UK:
clearly, one of the practical things that needs to be resolved is what cut-off date would be used for EU citizens to have a right to remain. Our view, across health and social care, is that we would like that date to be as late as possible because we still have this pressing need to recruit colleagues to come and work within our system.
47.Professor Martin McKee explained in his evidence that a loose discussion about ‘rights’ and, particularly, the right to reside does not address the fundamental concerns of R-EU people in the UK. He explained that the simple right to reside is relatively meaningless unless accompanied by a set of further rights:
There is an important distinction between the right to reside and rights as an EU citizen. The right to reside is one part of that. Unfortunately, in a lot of the discourse we hear about the right to reside, which really does not address issues like the right to own property, the right to transfer pensions and the right to transfer capital.
48.To date, however, no additional detail or reassurance has been forthcoming and the exact permutations of future rights or possible cut-off dates for entitlements are unclear. There exists a substantial difference between a person’s entitlement in theory (their position under future UK/EU international agreement) and a right which has an effective means of enforcement (their position under EU law).
49.It is not only workers in health and social care that benefit from a full set of entitlements but also their families and dependents. We heard that NHS organisations are advising R-EU staff to avoid the complex process of applying for permanent residency in the UK One controversial aspect of this process has been the requirement for non-economically active EU migrants to hold Comprehensive Sickness Insurance (CSI). The CSI requirement has been one of the main causes of permanent residency applications to be rejected by the Home Office. Whilst this requirement would not apply to a person working in health and social care (or any other field) it could potentially affect a spouse or partner who may have resided in the UK for many years or, in some cases, decades (and before the CSI requirement was introduced in 2004). Evidence from Kent University and ECAS ‘EU Rights Clinic’ suggests up to 1 million people may be in this position.
50.We are concerned that the spouses and partners of NHS and social care staff may not be offered permanent residency in the UK purely as a consequence of the requirement for Comprehensive Sickness Insurance. We note that the UK’s interpretation of this directive has been a cause for dispute between the Government and the European Commission, and further note that the Exiting the European Union Committee has recommended that access to the NHS should be sufficient to fulfil the CSI requirement.
51.R-EU nationals in the UK enjoy a full set of easily enforceable rights and entitlements that put them on a par with British citizens. This should be acknowledged by the Government when undertaking any assessment of the incentives required to attract workers into health, social care, and supporting roles, especially low-paid jobs such as in adult social care. We wish to make clear the value that we as a Committee place on the health and social care workforce from R-EU nations.
52.The Government’s policy is that England should become ‘self-sufficient’ in its supply of clinical staff. Professor Ian Cumming described the interaction between the effect of Brexit and wider reforms to nurse training, but concluded that future number of nursing posts required across the NHS could potentially be filled by the current number of applicants to nurse training in England. Professor Cumming noted, however, that should Brexit precipitate a major decline in the number of nurses from R-EU working in the NHS then there remains a possibility that the projected domestic training numbers would be insufficient.
53.In 2016 the Secretary of State announced the creation of an additional 1,500 medical training places to increase the supply of domestically trained doctors. Nevertheless, questions have arisen as to the nation’s ability to achieve this. The Association of UK University Hospitals (AUKUH) noted in its evidence that places at UK medical schools are not occupied only by British students and there had been a 16% reduction in the number of applications from R-EU nationals for places at UK medical schools.
54.Commenting on the Government’s objectives the Secretary of State for Health said that additional training places “will happen during this Parliament, but obviously it will not feed into the number of doctors actually practising until the middle of the next Parliament.” Professor Cumming offered a more realistic appraisal of the road to self-sufficiency, noting that
for us to become completely self-sufficient and have no reliance whatsoever internationally, you are looking at somewhere in the region of 10 or 12 years from now.
Professor Cumming also explained that the nature of medical training means that self-sufficiency is based on international applicants to domestic training as there is both and “inflow and an outflow” of doctors in England.
55.Professor Cumming wrote to us outlining Health Education England’s interpretation of the impact Brexit has already had on applicants to medical training:
HEE does not have evidence to suggest this is impacting our recruitment to training at present. You will have seen from our joint evidence to your Committee that proportionately more doctors come from the EU than for other large clinical groups, such as nurses. So it is significant that the first round of Specialty Recruitment in 2017 (run between November and December 2016) produced very similar numbers of applicants to previous years, and EU doctors continued to make up around one in six applicants.
In oral evidence Professor Cumming added:
About 18% of all applications for specialist training in 2015/16 were from EEA nationals and it is 18% again this year, and the overall figure has not gone down.
56.The Cavendish Coalition, a body comprised of 30 health and social care organisations campaigning on workforce issues, sounded a note of caution in relation to the future deployment of domestically trained staff, noting that international recruitment has benefits beyond filling gaps in rotas:
The government has announced it is to raise numbers of medical training places by 1,500 in order to increase the supply of UK trained doctors and reduce reliance on doctors from overseas, including EEA countries, with an end goal of the UK being “self-sufficient” in doctors. Recognition of workforce shortages is to be welcomed, however, the value of an international workforce, bringing together skills and experiences from across the world enhances the medical workforce and should continue to be encouraged as well.
57.Danny Mortimer, who chairs the Cavendish Coalition in addition to his role at NHS Employers, made the case in oral evidence that existing immigration arrangements for non EEA workers make it difficult to recruit the best possible staff to the NHS from the international market:
there is a risk that the current system itself and the whole administration of it is designed to disincentivise people coming to the country; the paperwork is long and complicated and there are numerous hurdles to jump through. We all share an interest in wanting skilled, talented people to come in and contribute to research or teaching, or front-line care. We want to make it as easy as possible for those people to come in, where we need them to provide those vital functions for our country.
58.Speaking from the perspective of the Association of UK University Hospitals, which represents the interface between clinical care and research, Professor David Lomas said
Having a big pool within which to fish gives us more opportunity to get the very best people in for the UK, and there is no doubt about that. My sense, and as you have seen from the numbers, is that it is relatively straightforward for us to employ medical staff from the EU in the UK, and that is why the numbers have grown over time. It is almost impossible for us to employ medical staff from the US, Australia, New Zealand, India, China, Japan or wherever, who may also have the expertise that we need.
Can I also mention that, as well as medical staff, we are also interested in non-clinical staff because the non-clinical staff often drive that research and innovation that we need? Again, we need to fish around the world and get the very best people in. The current system works well in the EU, but it is almost impossible to get people from outside the EU into the country.
59.England will not be self-sufficient in its supply of doctors until the end of the next decade at the very earliest. Even if the English NHS becomes self-sufficient in terms of initial training, we will still rely on (and benefit from) the skills and experience of overseas trained doctors who wish to build their careers here. It is in the interests of patients that we are able to attract the brightest and best from the EU and beyond and that we make the process of recruitment from an international workforce as straightforward as possible.
60.The extent to which the NHS will, in the long term, rely on foreign trained nurses remains uncertain especially as the impact of other changes such as the switch to student loans from bursaries is as yet unknown, but there will be a need for immigration at all levels to meet increased demand for staff, a point recognised by the Secretary of State himself:
Nurses remain on the tier 2 shortage occupation list. We do not envisage that there will be any cliff edges in immigration policy going forward, so we need to recognise that any possibility of reducing the need for people trained overseas to come and work in the NHS and social care systems will be a gradual process, not an instant one.
61.The requirement for the UK to maintain an immigration system which facilitates swift entry to the UK for the health and social care workforce is likely to continue for many years, despite the Government’s increased investment in medical training and the expansion of nurse training posts. This is a particularly acute concern in adult social care where some parts of the country are highly dependent on EU migrants.
62.We are concerned that research and innovation in the NHS could be compromised by further restrictions to freedom of movement arising from Brexit. The Secretary of State told us that the Government wants “an immigration policy that continues to attract the brightest and best from all over the world” but the commentary provided by NHS Employers and the AUKUH showed that employers of high quality staff do not feel that the existing system for non EEA staff currently provides this. Patients benefit the most if the UK has access to the very best from any part of the international market. If the current system applies post Brexit, that will not happen.
63.The mechanisms for allocating visas to non-EU workers are complex and different requirements apply across different sectors of the economy. We heard in evidence, however, that the existing rules which focus on salary requirements make it extremely difficult for some health and social care providers to recruit the staff they require. Nursing is not subject to such stringent salary requirements because it has been placed on the shortage occupation list by the Migration Advisory Committee. According to Danny Mortimer, that has “made a material difference to health and social care in the last couple of years”.
64.Explaining the frustrations that adult social care providers experience when recruiting care workers who are not listed as a shortage occupation, Professor Martin Green called for reform of the system:
There needs to be a review of whether salary is a good proxy in terms of skill. If that is going to be used as the proxy, then the Government need to think carefully about how they resource the system, to enable people to get to that level, or how they run the system without the requisite number of staff.
65.Looking at how the immigration system could be improved Danny Mortimer said that salary requirements attached to tier 2 visa applications could be weighed alongside the social value of the post being filled. Discussing how the Migration Advisory Committee (MAC) has addressed these concerns he said the MAC had
looked at whether there should be a weighting for public service and public benefit in how they assess applications for tier 2 visas. Whatever system we have, we believe that, if there needs to be a focus on salary, there needs to be some appropriate weighting for the kind of public service that our organisations provide.
66.Adult social care is a clear example of public service which is built around a low-pay workforce but has very high social value to the UK. The existing immigration system is characterised by bureaucratic and financial barriers to recruitment from outside the EU which do not currently exist for those from inside the EU. If such a system was extended to R-EU after Brexit it would create serious problems for the health and care sector.
67.The Government’s plan for our post-Brexit future should both ensure that health and social care providers can retain and recruit the brightest and best from all parts of the globe and that the value of the contribution of lower paid health and social care workers is recognised.
68.To inform this policy, we recommend that the Government undertake an audit to establish the extent of the NHS’s and adult social care’s dependence on both the EU and the wider international workforce in low paid non-clinical posts as well as in clinical roles.
69.The Government must acknowledge the need for the system for recruiting staff to the NHS, social care and research post Brexit to be streamlined to reduce both delays and cost. We call on the Government to set out how this will be managed in future.
70.The written evidence submitted to our inquiry by the General Medical Council contained an overview of the impact the Mutual Recognition of Professional Qualifications Directive (MRPQ) has had on the regulation of medical professionals in the UK:
Under European law, doctors who are nationals of the EEA (and those who are entitled to count as such) and hold medical qualifications from another country in the EEA are entitled to have their qualifications recognised and to pursue the medical profession in the UK with the same rights as doctors who qualified in the UK. The advantage of the European framework is that those EEA applicants benefiting from automatic recognition can gain speedy entry onto the medical register. The significant disadvantage is that (unlike doctors who graduated outside of the EEA) the GMC cannot test their competence. Instead we must rely on the robustness of the medical education and regulation system in the doctor’s home country for that assurance.
71.The GMC’s evidence said that they “foresee three potential outcomes for medical regulation” as a consequence of Brexit:
i)Maintain the status quo within the single market. If the UK were to remain within the single market we expect EEA qualified doctors would continue to have their qualifications recognised by the GMC under the framework of the recognition of professional qualifications Directive.
ii)Maintain the status quo outside of the single market. If the UK left the single market, in the first instance it is likely that we would continue to abide with EU law. The recognition of professional qualifications Directive will be maintained as a framework for recognising the qualifications of EEA doctors if and until the Government repeals the relevant provisions within the Medical Act 1983.
iii)Bring forward significant reform to the regulation of EEA doctors. If the UK left the single market the Government could enable significant changes to the way we regulate EEA qualified doctors via amendments to the Medical Act 1983.
72.The position of the GMC is that it believes that it should have the flexibility to assess the competence of foreign doctors. The GMC wishes to introduce a common assessment of competency for all medical graduates seeking a place on the medical register and this would include British doctors trained in the UK. Therefore, it regards this aspect of Brexit as a potential opportunity:
We have always argued that the GMC should have the right to test the competence of European doctors, like we do for other doctors who qualified overseas, with rigorous assessments of their knowledge and clinical skills. We believe that the current European law which restricts us from doing so has created a weakness in the system.
73.Charlie Massey, the GMC’s Chief Executive, explained in oral evidence the elevated risk that some R-EU trained clinicians may carry with them when working in the UK:
There is quite considerable variability in the way in which doctors are trained in European countries. If you are an oncologist trained in the UK, you will have been trained in radiation therapy and drug treatments. In some European countries, it would be focused just around radiation therapy. If you are going into general practice, it is a core part of our general practice training in the UK to be trained in paediatrics, antenatal and postnatal, but that does not apply in some southern European states because of the way in which their systems are organised. It is that kind of area where we think a common assessment for entering the register would provide much more assurance to patients about the safety and doctors meeting the standards of good medical practice.
74.In its evidence, the Nursing and Midwifery Council said it also believes it necessary to be granted the freedom to test the competence of all foreign nurses and midwives, and called on the Government to prioritise this in negotiations. Commenting on its position, Jackie Smith said that Brexit gives the UK “the opportunity to think about having a consistent approach that enables us to put people on a register to deliver care to UK standards.”
75.Illustrating the type of limitations the MRPQ places on the NMC, the NMC’s written evidence described how automatic recognition of qualifications can operate in practice:
Under the conditions of automatic recognition enshrined in the Directive, we are required to recognise a nurse or midwife’s qualification even if they have been out of practice for a significant length of time. We believe that this poses a public protection risk.
Jackie Smith explained further:
if European applicants have been out of practice for 10, 12 or 15 years, we cannot put them through any sort of process before we allow them on to the register here.
76.The Department of Health’s evidence indicated that the Government would be willing to consider changes to the existing regulatory approach in order to enhance competency testing:
concerns have been raised about the constraints that the MRPQ places on the ability of UK healthcare regulatory bodies to carry out robust checks on both the clinical and language skills of EU health professionals seeking to practise in the UK. The decision to leave the EU will provide an opportunity to work with healthcare regulatory bodies, professional and patient groups to review these arrangements.
77.In oral evidence the Secretary of State went further and said that he could “recognise the cogency of the argument made by the NMC and the GMC”. Describing how the UK could further strengthen professional regulation the Secretary of State highlighted improving the assessment of language skills:
under EU law we can test only people’s basic English, not their clinical English. Things like that do not seem logical and would be a natural priority for reform in a post-Brexit world.
78.The Royal College of Nursing, however, said in its evidence that there is a degree of risk attached to any dilution of the principle of the MRPQ directive:
The Directive now includes language checks on EU nurses and a duty to inform other health regulators about suspended or banned professionals, both of which are important and positive developments for the UK. We are concerned that a potential disassociation from these jointly developed standards could lead to a loss of safeguards, loss of access to alert mechanisms, and other exchange between regulators and potentially much slower recognition mechanisms for both inward and outward mobility.
79.The NMC’s written evidence acknowledged the concerns of the RCN, however, and said that in negotiations regarding Brexit the Government should ensure that “the UK (and NMC) is still able to access, and share fitness to practise data with, other EU countries.” Charlie Massey reiterated the importance of the alert mechanisms:
One would hope that you would find it difficult for any member state to argue that there should not be some mechanism to continue with that sort of alert system going forward.
80.Maintaining access to the alert mechanisms was noted by the Secretary of State for Health as something that would be of benefit to all parties. Giving evidence Mr Hunt did not envisage that maintaining this arrangement would be particularly problematic:
it seems to me an obvious area where it is in everyone’s interests to continue to co-operate across national borders. All those things are subject to negotiation, but I do not imagine that that particular one will be controversial.
81.We support the principle that all clinicians working in the UK should be asked to demonstrate relevant language, skills and knowledge competence. Nevertheless, the UK has an opportunity to negotiate a more pragmatic approach to the mutual recognition of professional qualifications directive within the British regulatory model.
82.Attention needs to be paid to the balance between patient safety as served by regulatory rules which may restrict access to the profession, and patient safety as served by having a workforce sufficient to meet the country’s needs. Regulation should not evolve into unnecessary bureaucratic barriers which inhibit the flow of skilled clinicians in to the NHS. Therefore, automatic recognition of some qualifications should not be excluded from possible future regulatory arrangements.
83.Future regulatory arrangements should be established by a process which involves consultation with all stakeholders and full Parliamentary scrutiny. The Government is considering new primary legislation to reform the professional regulation of health and social care and this should be the vehicle to reform the implementation of the MRPQ directive in UK law. It should not be amended using delegated legislation under provisions granted by the ‘Great Repeal Bill’.
84.The Government must take full account during the process of negotiations that it would not be in the interests of patients to lose access to the alert mechanisms which identify potentially dangerous practitioners and which exist as a central part of EU law on mutual recognition of qualifications.
85.Reform of the application of the European working time directive (EWTD) in the UK has been identified as a potential opportunity arising from Brexit. Introducing its remarks on the EWTD, the King’s Fund’s written evidence noted that the directive is “one of the most contentious pieces of EU legislation affecting the NHS”. Its submission described its operation and said it was
introduced to support the health and safety of workers by limiting the maximum amount of time that employees in any sector can work to 48 hours each week, as well as setting minimum requirements for rest periods and annual leave. The directive allows doctors to opt out of the 48-hour limit (the UK is one of the few countries to make use of the opt-out); some specialties have been concerned that the 48-hour limit affects training, and a Royal College of Surgeons (RCS) review of the directive called for more widespread use of the opt-out (Independent Working Time Regulations Taskforce 2014).
86.The Royal College of Physicians Edinburgh said in its evidence that the EWTD should not, in principle, inhibit the training of doctors but there may be benefits from not being constrained by it:
An independent review was chaired by Professor Sir John Temple on the impact of the EWTD on the quality of training. A 2010 report of this review, Time for Training, concluded that high quality training can be delivered in 48 hours but traditional models of training and service delivery waste training opportunities and will need to change. Although it is still possible for doctors and other NHS staff to work longer hours by signing an opt-out clause, it could be argued that UK withdrawal from the EU would allow greater flexibility in devising NHS work and training rotas.
87.Concern regarding the consequences of the directive were highlighted in the Nuffield Trust’s written evidence:
While agreeing that previous much longer working hours should not be reintroduced, several bodies representing doctors across the UK have expressed serious concerns about the Directive’s impact. The rigidity imposed on arrangements for on call working is a source of particular concern. The Association of Surgeons in Training is typical in arguing that the Directive limits the opportunity of trainees to take part in activities needed to develop their skills, and encourages dishonesty around how many hours are actually worked: 71% of trainees polled felt the regulation had a negative effect.
88.In oral evidence Professor David Lomas of UCL, speaking on behalf of the Association of UK University Hospitals, reflected the balance that needs to be struck if the application of the working time directive in the UK was to be significantly reformed:
The European working time directive has some real assets. It does not allow the three day weekends that I did as a junior doctor anymore; it does not allow starting at nine o’clock on a Friday morning and leaving at five or six o’clock on a Monday evening, as I did, and my predecessors did even worse than that for many years, but it has very much damaged the ‘firm’ structure because people will clock on and clock off. Rotas are generated so that we do not breach the European working time directive and there are penalties for hospitals that do.
From my preamble, you can guess that the answer is, yes, we could be far more creative. My generation would argue about the joy of going back to firms. Educationalists will tell me that is the wrong model to use, but I still stick with that and say that is the best training I have ever had and seen, but it may be a generational factor.
89.The King’s Fund’s written evidence noted that if the UK were to remove itself from the limitations of the EWTD “this would have implications for NHS employment contracts and require significant changes to the Agenda for Change pay framework.” Danny Mortimer, Chief Executive of NHS Employers, described the benefits of the directive and noted changes that would be required:
our junior doctors who are in training felt so strongly about the benefits of the European working time directive that they asked for it to be placed on the face of the contract that has been introduced in the NHS. Whether or not the European working time directive stands in English law after 2019, its requirements are incorporated into the new junior doctors’ contract in England. It does not matter what happens to the working time directive; it is there now within the contract.
90.Professor Lomas agreed with Danny Mortimer’s observations, but argued that the existing system of junior doctor training is flawed and that this may have been as a consequence of changes made after the implementation of the EWTD:
if you work on the wards with the junior doctors, they are not happy. They are not happy because they went through a very damaging strike, which was really unhelpful, but they are not happy because, when I teach them as medical students, they graduate as doctors and they say, “It is not like you told me it was going to be; it is not the experience.” So, working as a junior doctor does not give the same job satisfaction that it has done in years gone by. There is something wrong.
91.Any changes to the arrangements necessitated by the working time directive would be controversial as we heard in evidence that junior doctors, in particular, had regarded this as a priority issue in the recent contract negotiations and the protections within the directive are now embedded in the contract. It is also the case, however, that some junior doctors are frustrated with the impact the working time directive has on some aspects of training.
92.The medical profession should take the lead in examining the opportunities which would arise were the UK no longer bound by the requirements of the working time directive. The profession should advise how the junior doctors’ contract could be adapted to improve training, team working and flexibility. The Government should then work with the profession to achieve the legislative and contractual changes which Brexit might enable.
28 Director of Workforce (Department of Health) () para 1
29 Q 352
30 Q 9
31 NHS Hospital and Community Health Services (HCHS): , 31 December 2013 to 31 December 2016, headcount
33 NHS hospital & community services (including primary care)
34 p 3–4
35 The Nursing & Midwifery Council ()
36 Q 295
38 General Medical Council, , February 2017
39 Q 213
40 , 2016
41 Q 235
42 Q 217
43 , 19 January 2017
44 Q 213
45 Q 214
46 Q 214
47 NHS Hospital and Community Health Services (HCHS): , 31 December 2013 to 31 December 2016, headcount
48 Q 296
49 Q 9
50 Q 56
51 Q 230
52 Q 165
53 Q 164
54 Q 214
55 Exiting the European Union Committee, Second Report of Session 2016–17, , HC 1071, para 67
56 Council Directive
57 EU Rights Clinic (), para 15
58 European Commission Representation in the United Kingdom (), , para 73
59 Q 348
60 Q 346
61 The King’s Fund () para 1.6
62 The Association of UK University Hospitals () paras 7–8
63 Q 45
64 Q 353
65 Q 354
66 Q 344
67 Q 223
68 Q 225
69 Q 246
70 Q 241
71 Q 242
72 General Medical Council () para 15
73 para 18
74 Q 262
75 para 17
76 Q 271
77 The Nursing and Midwifery Council () para 20.1
78 Q 260
79 , para 12
80 Q 283
81 The Department of Health () para 42
82 Q 61
83 Q 17
84 Royal College of Nursing () para 2.1
85 para 20.2
86 Q 293
87 Q 63
88 para 3.2
90 Nuffield Trust () para 3.1
91 Q 253
92 para 3.3
93 Q 254
94 Q 255
95 Q 253 (Danny Mortimer)
27 April 2017