Care homes briefing 179 – Breaking the language barrier?
A frequently repeated complaint from healthcare providers is the inability to find suitable candidates to fill vacant posts. Within both the NHS and the private sector, a staffing crisis has arisen which seems to be accelerating. One of the drivers of this shortage seems to be the introduction of language restrictions by healthcare regulators, so how and why did these restrictions develop?
Language abilities of healthcare professionals
The death of David Gray in 2008 focused public attention on the language abilities of healthcare professionals. Mr Gray was treated by Dr Daniel Ubani, a German national taking on locum shifts for a GP out of hours service. Dr Ubani, administered a lethal 100mg dose of diamorphine to Mr Gray. This was 10 times the recommended maximum dose.
In May 2010, following the inquest into Mr Gray’s death the Coalition Government promised to:
‘…seek to stop foreign healthcare professionals working in the NHS unless they have passed robust language and competence tests.’
After the rhetoric, little change seemed to materialise. Restrictions upon non-EEA nationals registering in the healthcare professions was straightforward and had been in place for some time. The significant stumbling block here was EU legislation that prohibited healthcare regulatory bodies requiring evidence of a European applicant’s knowledge of English prior to registration.
Pressure on the Government increased when Sir Robert Francis QC, in his 2013 report into deaths at the Mid Staffordshire NHS Foundation Trust, recommended that:
‘The Government should consider urgently the introduction of a common requirement of competence in communication in the English language.’
Following a period of consultation in 2014 amendments were made to the Medical Act 1983 enabling language assessments for doctors. The General Medical Council (GMC) was provided two new powers:
- To reject applications for licences to practise where the applicant was unable to demonstrate the necessary knowledge of English (neatly sidestepping EU legislation, the reforms did not block registration, simply the issuing of a licence)
- To bring fitness to practise proceedings for impairment against existing doctors whose knowledge of English was assessed to be unsatisfactory
In 2016, similar regulatory provisions were introduced for nurses, dentists, and pharmacists. This meant that those seeking to enter healthcare professions had to demonstrate competency in the English language, and once on the register could face fitness to practice proceedings if their powers of English were found to be wanting.
So what are those language standards?
The International English Language Test System (IELTS) is the primary assessment standard applied by regulators. Applicants are assessed in four testing areas: speaking, listening, reading and writing. They are provided with an individual and overall score.
The GMC requires applicants to achieve individual scores of 7.0 in each area and an overall score of 7.5 within the past two years before a licence is granted.
The General Pharmaceutical Council (GPhC) and the Nursing and Midwifery Council (NMC) each require applicants to achieve an IELTS score of at least 7.0 overall and at least 7.0 in each in reading, writing, listening and speaking within the past two years. The General Dental Council (GDC) requires an overall score of 7.0 and individual scores of 6.5 in the same two year period.
In early 2018, both the GMC and NMC confirmed that as well as the IELTS standard, they would also accept the Occupational English Test (OET) as proof of language competency. Scores of ‘B’ in each testing area (speaking, listening, reading and writing) within the past two years would secure registration.
The standards required of both tests are high, evidence suggests that most candidates fail to achieve 7.0 or B grades at their first sitting of the examinations.
NMC fitness to practise guidance has been produced in language cases which takes an unusually temperate position on registrants struggling to achieve the appropriate IELTS standard. The guidance encourages panels to view achieving language standards as a process, rather than a strictly ‘pass or fail’ matter.
Both the GMC and NMC have confirmed in parliamentary committee evidence that they see a causal link between diminished numbers of applicants for the registration and the introduction of these controls.
What does the future hold?
Brexit, it appears, will not produce a solution to the problems posed by this issue. In evidence to the Parliamentary Health Committee’s inquiry on Brexit, the Health and Social Care Secretary, Jeremy Hunt, intimated that regulation should increase rather than relax upon the UK’s exit from the EU.
RadcliffesLeBrasseur is able to advise on all aspects of the law regarding healthcare regulation.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.