Brownlie v Four Seasons Group
Communication is at the forefront of patient safety. The GMC’s guidance Consent: patients and doctors making decisions together emphasises from the outset that patient-doctor relationships rely on ‘openness, trust and good communication’. It follows that adequate language skills are vital to achieving this aim.
Current Tests in Place
The way in which the language skills of doctors and nurses are currently checked differs slightly between the professions, but the reasoning for these checks is the same; patient safety.
When nurses come from outside of the EU to work in the UK, they must pass the International English Language Testing System (IELTS) to show that they hold the requisite language skills to practise. For nurses coming from an EU state, no such test is required.
For doctors, the GMC requires those transferring from outside the EU to the UK to complete an additional test beyond the IELTS, the Professional and Linguistic Assessments Board (PLAB) test. However, this again only applies to those wanting to practise in the UK coming from outside of the EU, or without European Community rights.
Current Legal Landscape
The Mutual Recognition of Professional Qualification Directive 2005/36/EC (Professional Qualification Directive) provides that European professionals seeking employment in the UK are entitled to have qualifications automatically recognised. This applies reciprocally for UK nationals in EU states. As a result, regulators are principally unable to obtain evidence of/test an EU national’s language skills as a condition of registration.
Although not always connected to language skills, the requirement to automatically acknowledge an EU national’s qualifications has led to concerns about the risk to patient safety. A well cited example is the case of Dr Ubani, a specialist in cosmetic medicine who came to the UK from Germany. Whilst originally based in Nigeria, Dr Ubani practised professionally in Witten. He became a German Citizen and, by virtue of which, a European national. Whilst practising in the UK he injected a patient with a lethal dose of diamorphine which we discussed in a previous blog.
The Medical Act 1983 (Amendment) (Knowledge of English) Order 2014 incorporated changes to the GMC’s powers, and came into force in April 2014. This provided the GMC with the power to ask for evidence of English language capability as part of the ‘licensing process’, where concerns about a registrant’s language skills have been raised during the registration process.
The Health Care and Associated Professions (Knowledge of English) Order 2015, SI 2015/806 (the Order) was published in March 2015. This made similar changes with regard to other professions, developing a two stage process for EU qualified professionals registering in the UK. The first stage involves recognising qualifications (the necessary element to comply with EU law). The second stage relates to registration. In theory, regulators can request evidence of English language skills from an applicant coming from inside the EU, after their qualification has been recognised, but before they become registered practitioners. The Order also provides the new ground of impairment by reason of ‘not having the necessary knowledge of English’.
In January 2016, the European Professional Card (EPC) became available for five professions including nurses, physiotherapists and pharmacists. This provides electronic proof that an individual has passed administrative checks and that their professional qualifications are recognised by the country that they wish to work in. The EPC gives responsibility for these checks to the regulator in the originating country and the ‘competent authorities’ of EU countries are required to ‘quickly warn’ each other, through an alert system, of professionals who:
Whilst the changes seek to incorporate the testing of language skills of practitioners coming to the UK from the EU, these changes remain confined by the need to comply with EU law. As such, there are some holes that may be exposed. For instance, the powers bestowed by the Order must be proportionate. In this vein, the testing of every EU national as to language skills prior to the grant of registration is unlikely to be considered proportionate; proportionality being central to EU law. Whilst this is understandable given the numbers of doctors/nurses with adequate language skills, the fact that only those who raise a concern are required to provide additional evidence of their language ability means that some individuals may not be picked up on. Equally, the additional fitness to practise ground may deter those wishing to practise who recognise that they do not have proficiency in English, but it operates retrospectively, responding to concerns raised at times when the professional is already practising.
The health system in the UK is very much dependant on the skills of foreign nationals from both inside and outside the EU. The UK’s impending withdrawal from the EU may provide regulators with an opportunity to address the disparity in its abilities to test the language skills of EU nationals and put proactive measures in place to enhance patient safety. At this stage, it is difficult to say what the position will look like. Recent developments suggest that the UK may leave the single market, and with that, remove itself from the obligation of free movement between EU countries. Such a move would go hand in hand with an intention to no longer comply with this legislation.
Regardless, the ability to ignore the requirements of the Professional Qualification Directive provides an opportunity to put in place safeguards that ensure language skills are of the standard necessary to engage with patients, understand their concerns, and to explain risks and treatment options in terms that patients understand; thereby enhancing patient safety.
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