Obsessed by its Single Market, the European Union has been forcing us to accept onto Britain’s health registers doctors and nurses who can’t speak English...
Most people in Britain will remember the case of the German doctor Dr Daniel Ubani, who came over to Britain to do a “moonlight shift” for an agency and because of his limited English language skills gave a morphine overdose which killed his patient. On his first “out of hours” NHS shift on February 16, 2008, he gave 70-year-old David Gray up to 20 times the recommended dose of diamorphine, killing him within hours.
Yet few people appreciate that the reason he was able to work in this way was a result of EU Directive 2005/36/EC called the Mutual Recognition of Professional Qualifications Directive (MRPQ). Probably even fewer know the EU is proposing to review this directive with a view to relaxing the controls even further, and the coalition government is falling over itself to lead the way.
Here is the opening paragraph of the government’s response to the EU review published in September 2011:
“The modernization of the Professional Qualifications Directive comes at a crucial time in the economies of the EU. Decreasing public budgets and difficult economic circumstances cast new light on systems which originate from past decades, and create urgency to ensure that these systems do not hinder economic growth. We therefore welcome the review of the Recognition of Professional Qualifications Directive (2005/36/EC), as one of the European Commission’s 12 levers to boost growth in the single market.”
The systems which “originated in past decades” are the accumulated experience of professionals, their professional bodies and trade unions, which have fought to improve and maintain standards, often standards related to the safety of the public they were serving.
The MRPQ is a fundamental component of the Single Market. It allows professionals to have their qualifications, obtained in one member state, recognised in another and thus allows them to be employed anywhere within the Single Market irrespective of where they were trained. The Directive applies to the European Economic Area, which includes EU member states along with Norway, Iceland and Liechtenstein. The Directive was transposed into British law in 2007. There are currently 800 regulated professions across the EU with two systems for recognition of qualifications: the “general system” and “automatic recognition”.
Lack of planning has become a feature of the modern NHS. Above: doctors in Glasgow protest in March 2007 against a system as described as “complete chaos” with thousands of expensively trained junior doctors unplaced and without even an opportunity to be interviewed.
The system of automatic recognition applies to seven professions: doctors, dentists, general care nurses, midwives, pharmacists, veterinary surgeons and architects. For these professions there are “harmonized minimum training requirements”. Note the word “minimum”. Language competency is not viewed as part of this “minimum” requirement – the focus is on clinical and professional skills.
Yet most clinical skills – the taking of temperature, blood pressure and so on – require language competency if only to seek the patient’s consent before doing the procedure. Failure to do so could make the procedure legally an assault.
Most of the professions are covered by the “general system”. In this instance the directive allows that where there are “substantial differences” in training requirements between member states the host country “may impose compensation measures, requiring the applicant either to complete an adaptation period or take an aptitude test.” One of the main reasons that the EU now wishes to review the 2005 Directive is that so many professions have been adept at defending their standards.
From the perspective of the EU commission, the directive has been a success, but they view the current mobility of professionals within the EU as too low. In their own estimation intra-EU trade in services represents only 25 per cent of overall trade in the EU when the services sector represents 70 per cent of Gross Domestic Product. The commission cites “burdensome and unclear procedures” as one of the main obstacles to EU citizens “exercising their rights to cross borders”. However they also acknowledge that there have been particular concerns with regard to cross-border provision where public safety is at stake. This is testament to the efforts by health professionals and others in Britain to raise the alarm.
But the EU is a many-headed hydra. Realising it has been caught out on public safety in health care, it is claiming to put in extra safeguards in this area, using this as a diversion from the more general attack on all professions contained in the Directive.
Language and public safety
Under the 2005 directive as implemented in English law the requirement to test for language ability rests with the employer and not the regulator of a particular profession.
As reported in Workers in May 2011, this has led to a situation in health that both professionals and public find incomprehensible and dangerous. For example, whenever an overseas nurse seeks to join the UK nursing register, the regulator can expect them to provide evidence of English language competency equivalent to GCSE English, or undertake the IELTS (International English Language Test) and pass at grade 7.5 both verbal and written – i.e. at a high standard. But only if that nurse is coming from outside the EU, such as Hong Kong or South Africa.
In contrast a nurse or a doctor can come from anywhere in the EU or wider EEA area and join the UK register without any language test. The responsibility for language testing rests with their employer.
The nursing unions and the regulatory body the Nursing Midwifery Council (NMC) have publicly expressed their concerns about this issue for a number of years. In March 2011 the NMC submitted evidence to the commission on behalf of all 26 nursing regulators across Europe demanding the authority to test language skills prior to putting someone on the register. The chief executive of the Patients Association also raised concerns: “How can we allow Europe to direct something as important as the delivery of safe care, particularly for older people?”
The government says that it should be up to the individual employer to test language competency, but the case of Dr Daniel Ubani shows how risky this can be. The different level of scrutiny between NHS trusts was exposed at the inquest for the patient killed by Ubani. In June 2007 Leeds Primary Care Trust (PCT) tested Ubani’s language skill and he was told he had not passed the language exam. He had only scored a 6 on the IELTS test, but a mere month later he successfully applied to a different trust for formal registration as a GP. The Cornwall and Isles of Scilly PCT did not bother with a test “because he was an EU doctor”, and placed him on the nationwide performance register. This meant Ubani could work anywhere in England and Wales.
It emerged at the inquest that the out of hours company which used Ubani’s services told him to return to Germany the day after he killed David Gray. Ubani, now 68, has since been suspended by the General Medical Council in Britain but continues to practise in Germany.
Fitness to practise
Health professionals in Britain are required to demonstrate that they have undertaken a certain amount of continuing professional development each year. But the EU directive again does not allow the regulator to impose this requirement on EU health professionals: it gives this responsibility to individual employers. Dr Ubani was working as an out of hours GP but it emerged at the inquest he had never practised as a GP in Germany. He mainly does plastic surgery work. The Nursing and Midwifery Council recently told a House of Lords committee that it had been “required to register nurses who had not had practice experience within 20 years”. There has been no attempt to rectify this omission in the proposed new version of the directive. Even the British government has had to express concern on this:
“We have heard strong concerns from our partners and stakeholders concerning health professionals seeking recognition who have been out of practice in their home State for a number of years, but then seek to practice in another Member State. The current Directive seems to require competent authorities to register professionals who met minimum training standards some years ago, but have not practiced recently.”
As in the case of Ubani someone struck off in one country can freely practise in another, avoiding the consequences of their malpractice. Dr. Hamish Meldrum of the British Medical Association, speaking in Cardiff in June 2011, reported: "We are aware of several cases where doctors have been removed from the medical register in this country because of fitness to practise problems, but are still practicing elsewhere in the EU. I am afraid EU law seems to put freedom of movement rather higher than protection of patients."
The only forum that appears to have explored the issue fully (but only in relation to health professionals) is the European Union Committee of the House of Lords. It has published a report with the promising title of “Safety First: Mobility of Healthcare Professionals in the EU”*. Indeed the introduction to their report states:
“The number of incidents which have occurred as result of failures of the Directive may be considered statistically low but where they have occurred he results have been devastating. Confidence in the Directive, particularly in relation to those professions covered by automatic recognition, has been severely undermined as a result, leading to fear in some quarters that mobility has been prioritised over public safety.”
The House of Lords heard from witnesses including regulatory bodies and Royal Colleges, but sadly none fundamentally questioned the nature of the Directive. This allowed the House of Lords final report to include a Jane Austen type clause that read “It is generally acknowledged that the free movement of services provides benefits for the EU as a whole, for its individual member states and for its citizens. None of our witnesses sought to question this.”
Yet many did raise the issues of language and fitness to practise, and even more alarming information about the registration of health professionals came to light. For example in some regions of Spain there is no formal or compulsory regulatory system for nurses – no register!
The House of Lords response to the commission on health professionals was much more robust than that of the House of Commons. In particular they said in relation to language competency that the current and proposed Directive “strikes the wrong balance between facilitating mobility and ensuring public safety”. They specifically called for regulators to be able to test language competency.
In London the population is predicted to grow by 13 per cent in the next 20 years with the elderly population rocketing by 34 per cent in the same period. But the London Strategic Health Authority, soon to be replaced by a new body, has announced that the number of training places for adult nurses is expected to be reduced by around 420 between 2011/12 and 2012/13, down from 2,000 to 1,580.
Timetable for EU attack
|2005||EU Directive on Mutual Recognition of Professional Qualifications(MRPQ)|
|2007||MRPQ transposed into British law|
|Mar 2010||EU Commission announces an “evaluation” of the directive|
|Jan 2011||EU launches a consultation|
|Jun 2011||UK Green Paper on Modernising the Professional Qualifications Directive|
|Sep 2011||UK government response to EU Commission supportive of further relaxation of controls on movement|
|Jan 2012||Commission’s proposals for change expected|
|2013||New Directive expected|
In January a nameless Department of Health spokesperson told Nursing Times magazine that a 40 per cent increase in the number of EU nurses joining the UK register from 2010 to 2011 was one reason that fewer students would be needed.
So in the year after nursing in England has moved from Diploma to Degree status, the number of students is slashed and EU nurses (many prepared at sub Diploma level) join the register! The irony was not lost on a string of nurses who commented with fury on the online version of the Nursing Times article – including some recently made redundant and third year students struggling to find jobs.
The current Directive is dangerous. The new version is potentially even more so. See the Box, left, for the timeline of this particular EU attack. As Workers goes to press many union branches are preparing motions for conference and if ever a topic needed to be understood and debated, here is one.
We need to emulate the two sons of David Gray who have never stopped campaigning against this system. They have fought relentlessly to have Ubani removed from the register in Germany. Last year Ubani took them to court to try and prevent them speaking up. Ironically the German courts said that the sons could keep speaking up and Ubani could not silence them, but apparently no law in Germany or European court can prevent this negligent doctor practising.
The law is an ass. The wording of this Directive needs to be turned on its head. Professionals in every country should mutually recognise the right of professionals to organise in their own country. ■