EU ‘Single Market’ legislation represents a clear and present threat to patient safety. Despite calls from the General Medical Council (GMC) to place patient safety at the heart of the negotiations, the NHS formed no part of the Government’s EU renegotiation (General Medical Council, 17 November 2015, link). The matter could get worse when a new EU law comes into force after 2018.
- Despite avoidable deaths due to the inability of EU doctors to speak English, systematic checks on whether EU doctors can speak English remain illegal under EU law.
- It is not possible for the GMC to require all EU doctors currently practicing in the UK to undergo language tests.
- Since language tests were introduced in 2014, over 900 EU doctors have been refused registration for having poor language skills, suggesting many EU doctors who entered the UK before that date cannot speak proper English and pose a risk to patient safety.
- Despite the GMC’s objections, EU law requires the UK to recognise automatically the qualifications of doctors trained in other EU member states. 10.9% of doctors registered in the UK qualified in another EU member state.
New EU Professional Card could further undermine patient safety
The new European Professional Card, which the Government has admitted could be extended to doctors by the European Commission in just two years' time, is set to undermine patient safety further and the UK’s language tests introduced in 2014 by exempting ‘temporary’ doctors from language tests. A new EU law that could come into force from 2018 will make matters worse - UK regulators will be stripped of powers to check the qualifications of doctors coming into the UK on a temporary basis and to assess whether they can adequately speak English.
The General Medical Council has said that the move ‘worries’ them and that it will ‘lose all direct contact with the doctor and will have to rely on the doctors’ home state regulator to verify documents’.
Under new EU law passed in November 2013, a European Professionals Card has been introduced. This is an electronic certificate to the effect that a doctor has met all the necessary conditions to practice in another member state. Applications are submitted online to a regulator in the applicant’s country of origin. The Card must be issued within three weeks of an application. Additional information may only be requested in cases of ‘duly justified doubt’ (Directive 2013/55/EU, link).
The ‘European Professional Card’ has been introduced for ‘general care nurses, physiotherapists, pharmacists, real estate agents and mountain guides’ (Commission Implementing Regulation 2015/983/EU, Annex I, link; European Union (Recognition of Professional Qualifications) Regulations 2015 SI 2015/2059, link). The UK Government has admitted that the system could be extended to doctors as early as 2018 (‘Doctors: EU Countries: Written question - 902879’, 5 January 2016, link). The power to extend the card to doctors is vested in the European Commission, meaning the UK will not be able to stop this from happening if it votes to remain in the EU (Directive 2005/36/EC, art. 4a(7) (as inserted by Directive 2013/55/EU, link)).
The GMC has stated: ‘the UK will be reliant on regulators in other European countries to make sure those coming to work here have the correct documents and qualifications.’ It impugns the fact that: ‘The amount of time for checking doctors’ qualifications will be cut in half’, that the system ‘will rely on the doctors’ home state regulator to check the qualifications’, that the GMC ‘will lose all direct contact with the doctor and will have to rely on the doctors’ home state regulator to verify documents’. Niall Dickson, Chief Executive of the GMC, has said ‘the introduction of the European professional card for doctors would further jeopardise our ability to protect patients in the UK’ (GMC, 17 November 2015, link).
A major concern about the proposal is the transfer to regulators elsewhere in the EU of the power to check documents. Niall Dickson has said the ‘process assumes that every regulator will apply the rules in the same way and with the same rigour. They don’t, and this worries us’ (Guardian, 17 November 2015, link).
In addition, EU doctors are likely to use new temporary registration opportunities to circumvent the UK’s regulatory requirements. These include obligations to ‘pay registration fees; meet our revalidation requirements, thereby demonstrating on-going fitness to practise; have in place appropriate cover under an indemnity arrangement; or comply with our language controls’ (GMC, 14 August 2014, link). The GMC has predicted that the ‘European professional card likely to result in increase in [temporary and occasional] applications’ and that such applications ‘are not required to… comply with our language controls’. The card is valid for up to eighteen months (GMC, 3 February 2015, link).
The renegotiation did nothing to improve patient safety
The GMC consistently called for the Government to put patient safety at the heart of its renegotiation. Chief Executive, Niall Dickson, said: ‘We are also calling on the UK Government to include patient safety considerations in their negotiations on the future UK membership. A commitment to improve patient safety should be part of any continued membership of the EU’ (GMC, 17 November 2015, link). The GMC reiterated this request in January (GMC, 18 January 2016, link).
Patient safety and the NHS were not even mentioned in the renegotiation agreement (European Council, 19 February 2016, link). Moreover, the Government today praises the EU legislation in this area, claiming: ‘One strength of the Single Market in services is on the mutual recognition of professional qualifications… It is one of the elements of the Single Market that gives it a unique breadth and depth, and is important for an economy like the UK’ (HM Government, March 2016, link).
Patient safety depends on all doctors being properly qualified and able to speak good English
Allowing medical staff with a poor grasp of English to practice medicine is extremely dangerous and hazardous to patients. In 2009, David Gray died in what HM Coroner William Morris ruled was ‘gross negligence and manslaughter’. A German doctor, Daniel Ubani, killed Gray in his first shift as a locum consultant, when he administered an injection of 100mg of diamorphine - 10 times the recommended maximum dose. The Coroner concluded that ‘Dr Ubani, in his dealings with patients that fateful weekend, was incompetent, not of an acceptable standard’. Ubani, who could not speak proper English, claimed he was confused about the types of drugs used in the UK. Ubani remains able to work in Germany, specialising in cosmetic surgery and anti-ageing medicine (The Guardian, 4 February 2010, link; Daily Mail, 12 January 2012, link).
EU law prevents systematic language tests being conducted on EU doctors
The GMC states that ‘to practise safely in the UK doctors must have sufficient knowledge of English’ (GMC, April 2015, link). Following five years of lobbying after the Ubani case, the GMC was given new powers in June 2014 to check the English language skills of licensed doctors in the UK. However, these powers are constrained by European Union law. As the GMC says: ‘in drawing up this guidance we have had regard to the guidance provided by the EU Commission... and the Court of Justice of the European Union’ (GMC, April 2015, link).
Under the rules introduced in 2014, the GMC may (but is not obliged to) refuse to register a foreign doctor ‘in any case where the person has not demonstrated the necessary knowledge of English’ and can require applicants for registration to undergo a test to that end (General Medical Council (Licence to Practise and Revalidation) Regulations Order of Council 2012, as amended, link). However, the GMC cannot require all EU doctors currently practicing in the UK to undergo a language test. Since the rules were introduced, ‘900 doctors from Europe have been denied a licence to practise because they have not provided evidence that they have the necessary knowledge of English to practise safely in the UK’ (GMC, 17 November 2015, link). This suggests that many doctors without sufficient English language skills who entered the UK before 2013 may still be working in the UK.
EU law requires that ‘any language controls shall be proportionate to the activity to be pursued’ (Directive 2005/36/EC, art. 53 (as amended by Directive 2013/55/EU, link)). The European Commission states that the ‘principle of proportionality... excludes systematic language tests… systematic language testing can become a means of unfairly preventing foreign professionals from accessing the right to perform a professional activity’ (European Commission, 22 June 2011, link).
Several EU doctors have recently been disciplined for not being able to speak English:
- Dr Tomasz Fryzlewicz was found to have inadequate English on 28 October 2015. He was first required to take the test by the GMC on 4 July 2014. He failed to achieve the minimum standards for listening, reading and writing. His registration as a medical practitioner was accordingly made subject to conditions, but he nevertheless was permitted ‘to remain in clinical practice’ (Medical Practitioners Tribunal, 28 October 2015, link).
- Dr Alessandro Teppa was found to have inadequate English on 28 October 2015. The tribunal found that ‘ the standard of your English is insufficient to support safe and effective medical practice in this country’. He returned to Italy before his registration as a medical practitioner was suspended for nine months (Medical Practitioners Tribunal, 28 October 2015, link).
The Government has acknowledged that ‘the UK has a duty to play its part in the furthering of the UK’s wider aims in Europe such as freedom of movement’ and that its ability to conduct systematic language tests on doctors from other EU member states is precluded by EU law (Department of Health, January 2014, link). This is a clear admission that the the UK’s ‘duty’ to uphold free movement is interfering with patient safety.
The UK is obliged to accept qualifications of EU doctors, despite GMC opposition
EU law in principle entitles doctors qualified in other EU member states to be registered to practice in the UK (Directive 2005/36/EC, art. 21, link; Medical Act 1983, s. 3, link). As the General Medical Council (GMC) notes, ‘Under European law the GMC is not allowed to check the skills or competence of doctors coming to the UK from the rest of Europe. That has long been a matter of serious concern’ (GMC, 17 November 2015, link). The GMC has consistently argued that doctors who qualify in other EU member states ‘are only granted registration when they are known to be appropriately qualified and fit and safe to practise’ (GMC, 2010, link). 10.9% of doctors working in the UK gained their initial qualification in the EU (GMC, December 2015, link).