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 [Draft]
Health Care and Associated Professions (Knowledge of English) Order 2015 [Draft]
Good morning and welcome to the eighth meeting in 2015 of the Health and Sport Committee. As I usually do at this point, I ask everyone in the room to switch off mobile phones as they can interfere with the sound system, although you will note that some committee members are using tablets instead of hard copies of the committee papers.
I have apologies from Dennis Robertson and Richard Simpson, who are unable to be with us. I welcome to the meeting Graeme Dey as the Scottish National Party substitute.
As usual with affirmative instruments, we will have evidence-taking sessions with the cabinet secretary and her officials. Once all our questions have been answered, we will have formal debates on the motions.
First, we will look at 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 and the draft Health Care and Associated Professions (Knowledge of English) Order 2015. I welcome the Cabinet Secretary for Health, Wellbeing and Sport, Shona Robison. I also welcome from the Scottish Government Jason Birch, head of regulatory unit, chief nursing officer directorate and Ailsa Garland, principal legal officer. I give the cabinet secretary the opportunity to make an opening statement.
Thanks, convener. I apologise for my lateness; I had some travel challenges this morning.
The Scottish Government and the health departments in the three other nations are committed to legislative change in healthcare regulation to enhance public protection. That is why we are seeking to make changes in priority areas, as agreed in discussion with the United Kingdom regulatory bodies, through these two draft orders that have been made under the Health Act 1999. Each order makes amendments to existing legislation on regulating health professionals.
I begin by speaking 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. Reform of the General Medical Council’s adjudication function has been a long-term United Kingdom policy objective, and it was agreed that the medical practitioners tribunal service should be established. The order will amend the Medical Act 1983 to make that tribunal a statutory committee of the GMC, specify its powers, responsibilities and duties, and modernise its adjudication function. The order will address patient safety issues, including strengthening the power of the GMC registrar to require the disclosure of information from a doctor in the context of investigating allegations and, in the event of non-compliance, to refer a doctor to the medical practitioners tribunal service for decisions on whether to impose conditions in relation to registration or to suspend the doctor’s registration.
The order will bolster the objectives of the regulator in relation to its fitness-to-practise functions to expressly take account of the need to maintain public confidence in the profession and the need to uphold standards in addition to protecting public health and safety. It will amend the grounds on which the Professional Standards Authority for Health and Social Care can refer a fitness-to-practise panel decision to the relevant court. It will also introduce a corresponding new right of reference for the General Medical Council.
I turn to the Health Care and Associated Professions (Knowledge of English) Order 2015. The Scottish Government and the health departments in the three other nations recognise that overseas healthcare professionals make a valuable contribution to the national health service. We are keen to ensure that highly skilled professionals do not face unnecessary barriers to working. However, it is vital that all healthcare professionals who practise in the UK have the necessary English language skills to communicate with and care for patients properly.
The order will affect healthcare professionals who come to work in the United Kingdom from the European Union. Following work with the Nursing and Midwifery Council, the General Dental Council, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland, a system of language controls for EU nurses, midwives, dentists, dental care professionals, pharmacists and pharmacy technicians has been identified to provide greater patient safety.
The order gives those regulatory bodies the appropriate powers to apply proportionate language controls so that only those healthcare professionals who have the necessary English language knowledge will be able to practise in the UK. That will sit with existing requirements to provide assurance that they can do their jobs in a safe and competent manner. It will also strengthen the regulatory bodies’ powers in relation to proportionate language controls and require applicants to provide evidence of their English language knowledge following recognition of their professional qualification but before registration and admission to the register.
The order will make corresponding amendments to the fitness-to-practise powers of the Nursing and Midwifery Council, the General Dental Council, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland, so that they can take fitness-to-practise proceedings in cases in which a healthcare professional’s knowledge of the English language affects their fitness to practise. A new category of impairment relating to English language capability will be created that will allow the regulatory body to request that a professional undertakes an assessment of their English language knowledge during a fitness-to-practise investigation in which concerns have been raised. The changes will strengthen the regulatory bodies’ ability to take fitness-to-practise action when concerns about language competence are identified in relation to healthcare professionals practising in the UK.
The order is compliant with EU law, which, under recent changes to the directive on mutual recognition of professional qualifications, clarifies the ability of national authorities to carry out language controls on European applicants to establish that those who benefit from the recognition of qualifications have the necessary language knowledge to practise a profession.
Any language controls must be fair and proportionate. For example, there cannot be automatic testing for all European applicants. Any controls will take place after the applicant’s qualification has been recognised by the regulatory body but before registration.
I am happy to answer any questions that members may have.
Good morning, cabinet secretary. How will the Health Care and Associated Professions (Knowledge of English) Order 2015 work in practice? How will it be delivered at a practical level? Who will determine the standard of English required and thereby what is proportionate?
The bodies will produce guidance that will set out in some detail what is required. Ailsa Garland will provide a little bit more detail on that.
The cabinet secretary is correct. The various regulators are under a duty to publish guidance about what the assessments would involve prior to the registration of new professionals seeking first registration.
How will we ensure consistency across all the bodies?
We expect the guidance to be quite similar across the regulatory bodies. The bodies will work together to produce the guidance, so we should see continuity across them.
To tease out that further, have you had sight of the guidance? Are you involved in talks about it? What important principles does the Scottish Government want to see in guidance that is made available for implementation?
I understand that the guidance is being developed at the moment. Jason Birch might want to say a little bit about the detail.
The regulators are developing the guidance, which will cover key aspects such as listening, reading, writing and speaking, and we will get more details later in the year. Various testing levels can be utilised.
We will have sight of the details at an early stage.
Absolutely.
How do we address that from a Scottish perspective? Are there any important principles that the Scottish Government wants to see expressed in the guidance? Is there a bottom line, or does the Scottish Government have a few ideas about what the guidance will contain?
As I said in my opening remarks, it is about proportionality and fairness. We want the guidance to set a proportionate and fair benchmark for the standard of English that is required for professionals to practise, but it should not be onerous and set a bar that is difficult for applicants to reach. The regulatory bodies do not want that either. They want a standard that satisfies and reassures them that the person is able to do their job properly.
Who is taking the lead on the development of the guidance?
The regulatory bodies themselves are doing that.
You are content for them to do that.
We will see the guidance. They have knowledge of the professions and the applicable standard of English so they are definitely the right people to take the lead. However, we want continuity across the regulatory bodies in the guidance that they produce, and we want early sight of it.
We had evidence on the 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 from the British Medical Association and the Medical Defence Union. The BMA was concerned that the chair of the tribunal is more likely to be someone who is legally qualified than a doctor. It is concerned that, although the way in which the tribunal will be set up will not disqualify doctors from taking that position, it will make it more difficult for them to do so because they can become the case officer only if they are legally qualified. What is your view on that?
The MPTS has discretion and does not have to appoint a legal assessor, although there may be circumstances in which the chair is legally qualified. Ultimately, the GMC legislation is in a reserved area and the Department of Health is leading on the various intricacies involved. I am happy to raise the point directly with the Department of Health if that would help.
That would be helpful, but it would also help if we could get more of an idea now, because I understand that we are going to vote on the order and I do not know whether we can delay doing so until you are able to provide that clarification.
Can you clarify the point?
The point is that, when the tribunal chair is legally qualified, they can be the case officer. That suggests to me that, if the tribunal chair is a doctor, they cannot be the case officer. That may be a barrier to a doctor becoming the chair of the tribunal, because the process would require two people rather than one.
The MPTS has discretion to look into what is appropriate in the circumstances of a particular case. In the circumstances that you describe, I think that, if it was not appropriate for a doctor to be the chair—if the chair needed to be a legally qualified person—the MPTS would ensure that that happened. Does that help with your query?
Not really. It would be useful to know what could be done to prevent the creation of a barrier to a doctor becoming the chair of the tribunal.
I think that there would be no barrier to that happening, but it would be for the tribunal to look into the circumstances and ensure that the right person had the legal qualifications. I think that it is open to the tribunal to have a legal assessor within it who is not the chair. The rules will allow a certain amount of flexibility to ensure that doctors are not prevented from becoming the chair of the tribunal.
Do you know whether any guidance will be issued to that effect?
Yes, guidance will definitely be issued on that point, because the specific concerns that you have raised have been analysed in the consultation response, and it is something that the GMC will take forward in the future.
We can certainly feed back that the committee raised the point this morning and it needs to be clarified strongly in guidance. I do not think that it is a material issue, but it is an important point and we will ensure that it is picked up in the guidance through feedback.
10:15
Can I ask another question?
Yes. Go on.
The BMA was also concerned about how people would be advised of decisions. It said that decisions would be given by email rather than by letter, and it was concerned that people might not read all their emails so decisions should go out by letter. I am keener that we communicate electronically, but I wonder what steps will be taken to ensure that people receive emails. Will there be read receipts, delivery receipts and the like? What will happen if emails are not received? Will there be a system to monitor whether somebody has received, and indeed read, the decision? If they have not, is there a fallback position that people will be written to?
Yes, it is important to have the most efficient system, which is why electronic delivery has been prioritised. As I understand it, there will be a receipt system. On the very rare occasions when email is not available, I presume that the communication will take place by letter.
The order makes provision for decisions to be sent either by post or, when that has been requested, by email. There is a specific provision to say that delivery is
“effected only if there is an electronic receipt showing that the email has been opened”.
How someone will receive a decision will be pre-arranged, and there will have to be evidence of its having been received.
I would like to follow up briefly on some of the comments that Rhoda Grant made.
Mr Birch, I thought that it was reasonable to ensure that there would be no inadvertent barriers to a medical professional being chair of a tribunal, but you said that there could be discretion. To clarify, does that mean that there is no automatic barrier to such a person being a chair and that discretion could be shown, which could be teased out in guidance? That is not a barrier to my approving the statutory instrument, but it is important to get it clearly on the record today. Will there be a degree of discretion or will it be the case that, by default, such people cannot chair tribunals?
There will be discretion, and rules will be made on that point by the GMC.
Will that be fleshed out further in guidance?
Yes, absolutely.
Okay. That was important for me. It was not a deal breaker, but I wanted to get it on the record, because members are raising concerns that other people have also raised.
I am reading from the notes that we were provided with in preparation for today’s meeting. The explanatory note for the knowledge of English order states:
“The relevant regulatory body would set out in advance the criteria as to what evidence would be appropriate to demonstrate an acceptable level of English language knowledge. The criteria must be flexible.”
That last sentence is important. If I were to raise any concern, it would be that we should have a uniform pass/fail barrier for people’s standard of English. That would not just catch other EU nationals; it should, quite rightly, catch long-term UK residents. What I am trying to tease out is that it would not be a straightforward case of sitting a test to see whether someone has the relevant standard of English, but rather, that the regulatory bodies would think carefully about the proficiency levels needed to perform each particular role.
I would welcome confirmation on that point. I would also like you to confirm whether we are still seeking to encourage EU nationals and others to work in our national health service, because they are vital. I would welcome confirmation that it will be made clear to people who have the relevant qualifications that they have passed the qualification barrier, irrespective of whether they get registration at that point.
My other question is whether any advice will be given to individuals who perhaps do not have English proficiency but who might want to get to that standard in order that they might apply at a later date. What is the Government’s view with regard to supporting people to take the steps that would allow registration?
I will answer in general terms before asking Jason Birch to come in on some of the detail.
We do not want unnecessary barriers. That is why I used the words “fairness” and “proportionate” in my opening remarks. The order changes the position so that the EU professional will still be entitled to be registered, but only after their qualification has been recognised and they can demonstrate the necessary knowledge of the English language. That is not a question about their qualification; it is about their English language skills.
On the guidance that the regulatory bodies will set out, they are all looking towards the International English Language Testing System to provide continuity of approach. It involves a test of all four language skills: listening, reading, writing and speaking. The academic version of the test is widely accepted by employers as a good standard. The guidance that the regulatory bodies develop will probably centre on that testing system.
Absolutely. They do not have to stick to that, but it is seen as a good standard. The really important point is that there cannot be blanket testing. The issue crops up only when there are concerns about language ability. With regard to the European directive, there is a definite separation between the recognition of qualifications and the ability to get on the register in practice.
Am I right in thinking that you suggested that assessments could be deployed retrospectively for people who are already in post?
Yes, if concerns are raised.
What would be the processes for raising concerns? Who could raise concerns and what mechanism would be in place to filter out any malicious complaints so that they did not escalate to the point at which somebody was put through an assessment unnecessarily?
The process would involve a fitness-to-practise ground, and a concern would be investigated in the same way as any allegation would normally be investigated. It would go through the same checking procedure as would be involved if concerns were raised about any healthcare professional. Introducing that new fitness-to-practise ground is one of the legislation’s key points.
I have a couple of questions that are based on the evidence that we got from the Medical Defence Union. It expressed concerns about the fact that the tribunal could refuse to admit evidence and could award costs, which it thought was more of a punitive measure than an investigative measure. On what grounds would it refuse to admit evidence and on what grounds would it allocate costs?
I know that concerns have been raised about costs. The logic of the policy of introducing costs is to prevent instances of fitness-to-practise cases going ahead that are vexatious and are unlikely to succeed.
I understood that the allocation of costs was to the defendant. If someone was asked to come to a fitness-to-practise tribunal to defend their record, they might face having costs allocated to them, which is almost like a barrier to justice.
Of course, a fitness-to-practise case could result in that happening. It is a technical issue that was raised in the consultation process. The GMC will provide guidance to cover that concern in due course.
What about refusing to admit evidence? It seems pretty onerous to say to somebody, “We’re taking you to a tribunal because of your practice. We’re not going to admit the evidence that you’re putting forward in your defence and, what is more, we can allocate costs against you if you defend yourself.”
The position depends on the circumstances of the case. I think that the current rules state that something quite similar can happen. That needs to be taken into account.
Ailsa Garland might want to comment on evidence.
It is normal in any court or form of tribunal that evidence might not be admitted if it is thought to be irrelevant to the case. I do not know the detail of the concerns that Rhoda Grant raises.
It is not very clear in the relevant order on what basis evidence could be—
I do not think that the issue comes from the order. I do not know whether it is to do with how cases are expected to be managed or whether that will be set down in rules.
We need to clarify the point. I might be wrong, but I understood that such powers already exist and that what is proposed does not diverge from what can happen at the moment. However, we need to clarify that, and we will write to you about it.
The cabinet secretary might have just answered the question, but I understand that, in any tribunal process, it is for the tribunal’s chair and the tribunal to decide what is and is not admissible.
That is my understanding, too. I understand that the order will not change that particularly, but we need to get absolute clarity on that. We will get that in short order and drop the committee a note as quickly as we can.
The Medical Defence Union opposes article 21. It states:
“There is no need for the GMC to state an over-arching objective in the primary legislation.”
It says that, in practice, the panels in the tribunal system already look at and bear in mind
“the maintenance of public confidence in the profession”
and
“proper standards of conduct and behaviour.”
It says that panels
“pay proper regard to such objectives”
already, and it states that
“Enshrining them in primary legislation may well result in a panel placing an emphasis on them to the detriment of the fundamental responsibility of the panel to ensure a fair and just hearing.”
What are your thoughts on that?
There are two elements. There is the overarching objective, which you mentioned, and there is an overriding objective for the panels to ensure that the rules are fair and just. If the two conflict, the overriding objective takes precedence. I hope that that answers that part of the question.
Maintaining public confidence as part and parcel of the overarching objective is already in the case law, but the order sets it on a statutory footing so that it is clearer. The intention in due course is to ensure that all the regulators have the same overarching objective, in order to have much greater consistency.
That is helpful.
It appears to me from reading the notes and the BMA submission and from points that have been raised today that a lot of this is about formalising and putting on a statutory footing things that are happening. My preference is to support the order, but I would like to know whether there is a natural review process. Will a review be done after one, two or three years to ensure that the system is continuing to do what we want it to do? Where will that sit? It is important to raise that today at the committee.
We would consider that in the normal course of events anyway. After any changes, we would expect the regulators to monitor the effectiveness of new procedures. We could perhaps agree to furnish the committee in a year’s time with the findings from the regulator and any issues that arise. We would be happy to do that.
That would give me some comfort.
10:30
I will recap for the benefit of committee members who have asked questions and raised concerns. I am sure that I got an acknowledgement from you, cabinet secretary, that the concerns that have been raised will not be dismissed and will be taken into the discussions on how the guidelines will be implemented, and you have said that you will seek clarity on some questions that have been asked and return that information to the committee. It would be useful to have that on the record, and then we can move to the next stage of the debate and proceed with the SIs.
Absolutely. I give you that commitment.
Thank you very much.
There are no further questions from committee members, so we move to item 2, which is the formal debate on the first of the affirmative instruments on which we have just taken evidence. I am sure that I do not need to, but I remind committee members and others that the question session is over, so no more questions can be put to the cabinet secretary. Officials are not allowed to speak in the debate, as I am sure they know. I invite the cabinet secretary to move motion S4M-12564.
Motion moved,
That the Health and Sport Committee recommends that the 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 [draft] be approved.—[Shona Robison.]
I put it on record that fitness to practise is important and that there is no move against the order at all. The concern that was expressed earlier was about ensuring that it is fit for purpose and works well. Given the cabinet secretary’s reassurances, I think that we can make it work and meet some of the concerns that have been expressed.
I reassure Rhoda Grant that we will feed back the points that the committee has made and that we will come back with responses on the issues that were raised. In a year’s time, or at an appropriate moment in the analysis and review of the operation of the new processes and procedures, we would be keen to come back to the committee with an update.
That concludes the debate. The question is, that motion S4M-12564 be agreed to.
Motion agreed to.
Item 3 is the formal debate on the second affirmative instrument. I have already pointed out who can speak and who cannot. I invite the cabinet secretary to move motion S4M-12563.
Motion moved,
That the Health and Sport Committee recommends that the Health Care and Associated Professions (Knowledge of English) Order 2015 be approved.—[Shona Robison.]
I welcome the order, because it is crucial that communication between professionals and patients is clearly understood on both sides. The order will help in situations where there are currently problems, so I support it.
As no other members wish to comment, I invite the cabinet secretary to sum up.
I agree with Nanette Milne. The order will enhance the arrangements, and I will ensure that we keep the committee updated as the regulatory bodies develop the guidance that we talked about.
The question is, that motion S4M-12563 be agreed to.
Motion agreed to.
Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2015 [Draft]
Agenda item 4 is evidence on our final affirmative instrument of the day. The cabinet secretary will remain with us, but we are joined by Mike Liddle, the reshaping care team leader in the integration and reshaping care division, and Ruth Lunny, principal legal officer, from the Scottish Government.
I invite the cabinet secretary to make a brief statement.
I will be brief, convener. The draft affirmative regulations reflect the Scottish Government’s commitment to increasing free personal and nursing care payments in line with inflation. If approved, the regulations will continue to benefit vulnerable older people.
Last year, we increased the personal and nursing care payments for residents in care homes in line with inflation. The regulations will further increase the weekly payments for personal care in line with inflation by £2, to £171 per week. They will also increase the additional nursing care payments by £1, to £78 per week.
In line with our partnership arrangements with local government, councils will meet the costs of the inflationary increases, which will total around £1.5 million in 2015-16. An additional £1.5 million annually was added to the funding for local authorities in October 2012 to cover those additional costs in the current spending review period up to 2015-16.
The free personal and nursing care policy continues to command strong support. I hope that the draft regulations will receive the committee’s support. I am happy to take any questions.
As there are no questions, I invite the cabinet secretary to move motion S4M-12562.
Motion moved,
That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2015 [draft] be approved.—[Shona Robison.]
Motion agreed to.
That concludes consideration of subordinate legislation. I thank the cabinet secretary and her officials for attending.
I will suspend briefly while we set up our panel of witnesses for the next item.
10:37 Meeting suspended.Previous
Attendance