Introduction

187. This chapter looks at the supply of doctors to the UK training system, and therefore to the NHS as a whole, examining recent efforts to protect opportunities for UK medical graduates and to restrict access to training posts for doctors from outside the European Economic Area (EEA). As described in Chapter 3, the unexpected failure to limit applications for training posts from non-EEA doctors was one of the principal causes of the 2007 crisis. We saw in Chapter 4 that non-EEA applications were again unrestricted in 2008 and that no definitive solution is in place for 2009 and beyond. Resolving the status of non-EEA doctors was described as an "urgent" priority by the Tooke Review, particularly as the output of UK medical schools continues to increase.[222]

188. In this chapter we examine:

• The debate about whether to restrict training opportunities for non-EEA doctors and the Department of Health's recent efforts to do this; and
• Present and future options for managing the entry of non-EEA doctors to the UK.

The current situation

SELF-SUFFICIENCY AND ITS IMPLICATIONS

189. Increasing the self-sufficiency of the UK for its medical workforce has been a long-standing policy of the Department of Health. In pursuit of self-sufficiency, a sharp rise in the number of UK medical school places took place from 1999 onwards:

Year	1999	2000	2001	2002	2003	2004	2005	% Increase: 1999-2005
UK medical school intake	3,972	4,300	4,713	5,277	6,082	6,294	6,298	58.6%

Table 1: UK medical school numbers: 1999-2005

Source: Department of Health

190. As most undergraduate medical training courses last six years, the output of medical graduates did not begin to increase until around 2005. Thus the number of UK graduates starting initial training increased from 2005 onwards, while the number seeking specialist training expanded from 2007, coinciding with the introduction of the new Foundation and Specialty training programmes respectively.

191. The rapid growth in the number of UK graduates had significant implications for the postgraduate training system, which had traditionally recruited large numbers of doctors from overseas, and particularly from non-EEA countries such as India.[223] The move towards self-sufficiency raised serious doubts about whether non-EEA doctors should continue to be actively recruited, and about whether such doctors should be permitted to take up UK training posts. Given the substantial cost to the taxpayer of training UK graduates, estimated at more than £250,000 each by the Department of Health, there was a significant economic case to protect training opportunities for UK doctors.[224] This section is therefore concerned in large part with the debates about whether and how training opportunities for non-EEA doctors should be restricted.

The case for limiting non-EEA applications

192. The NHS is in effect a monopoly provider both of patient care and of clinical training in the UK. As a result, a shortage of NHS training places for UK doctors would prevent many home-grown doctors from continuing with their careers without moving abroad.[225] The majority of witnesses therefore accepted the need for the policy of self-sufficiency to be complemented by the protection of training opportunities for UK graduates. Dame Carol Black emphasised the consequences for UK graduates of excess competition for training places:

If the UK is to achieve self-sufficiency by continuing to attract able young UK nationals into UK medical schools and, in turn, the NHS, there must be good prospects of completing training after graduation. Significant denial of training opportunities for UK medical graduates, and subsequent unemployment, would be a waste of major investment in talented people who have already undergone highly competitive selection.[226]

193. Bernard Ribeiro pointed out that allowing non-EEA doctors the freedom to apply for UK training places also had serious negative implications for countries outside the UK:

Coming from a third-world country where you see resources being removed in the way of doctors—I come from Ghana where most doctors leave the country and the health service in a poorer state—I am not keen on IMGs coming to the UK to support first world services, thank you very much. You should produce your own doctors to do it.[227]

194. The Secretary of State also acknowledged the lack of coherence between the Department's goal of self-sufficiency and the continuing open competition for training places in 2007 and 2008:

…you cannot have an open door policy and a self-sufficiency policy; the two things are diametrically opposed and I want the self-sufficiency policy.[228]

The case for open competition

195. Some witnesses did, however, point out the advantages of allowing non-EEA doctors to compete freely for training places, arguing that this would ultimately improve the quality of the doctors appointed. Sir Jonathan Michael, former Chief Executive of Guy's and St Thomas' NHS Foundation Trust, argued that opportunities for non-EEA doctors gave employers more choice.[229] NHS Employers pointed out that the success of many non-EEA doctors in securing training posts in 2007 demonstrated that restricting competition would reduce the quality of doctors:

Initial indications from 2007 Round 1 recruitment suggested that 70 per cent of training posts were secured by UK graduates compared with 30 per cent by graduates from EEA and non-EEA medical schools. This ratio is good but not good enough to exclude overseas trained HSMPs from applying for specialty and GP training in the near future.[230]

196. Dr Ramesh Mehta of BAPIO also argued that free competition would improve quality:

Professor Tooke mentioned excellence; excellence will come from competition, so we and our [UK] graduates have to be open to the competition. We as an organisation believe that our home grown graduates are trained extremely well and there is absolutely no reason why they should fear any competition.[231]

The need for sensible competition levels

197. Ultimately, however, witnesses accepted that, notwithstanding the benefits of competition, the sheer number of non-EEA applications for training posts in 2007 and 2008 was undesirably high, leading to wasted investment in UK trainees. Sian Thomas of NHS Employers argued that a "modest over supply" would produce healthy competition but that the current situation was unacceptable because of the scale of over supply:

…we cannot have the situation we now have, which is not a modest over supply, it is, in fact, a huge over supply of very expensive trainees, and I think that is why this question, which is really a question for wider government policy-makers, needs to be resolved…[232]

198. Sir John Tooke also emphasised the need to restrict opportunities for non-EEA graduates in order to protect the UK's investment in self-sufficiency:

We are on track for self-sufficiency. We have had an expansion in medical undergraduate education in this country in line with such a policy. We need consistent policies through the rest of training which support that if society is to see the value of the very considerable investment in medical undergraduate education.[233]

199. Even Dr Mehta from BAPIO acknowledged that "there has to be some sort of regulation of overseas doctors coming into the country".[234] Thus a broad consensus emerged on the need to limit non-EEA applications in some way, even extending to opponents of some of the specific measures attempted by the Government. In the following section we therefore look at how the Department has responded to the need to restrict opportunities for non-EEA doctors.

THE GOVERNMENT'S EFFORTS TO DATE

Limiting opportunities for non-EEA doctors

200. The Department of Health's attempts to change the status of non-EEA doctors during the implementation of MMC are provided in Chapters 2, 3 and 4. The main efforts made by the Department and others in 2006, 2007 and 2008, and the reasons they were largely unsuccessful, are summarised below:

• In March 2006, the Home Office announced the immediate end of "permit-free training" arrangements, potentially preventing non-EEA doctors from obtaining training posts. Although highly unpopular, this measure ultimately had little impact as thousands of non-EEA doctors were subsequently accepted on to the Highly Skilled Migrants Programme (HSMP), allowing them to compete freely for training posts.
• In June 2006, the Department of Health asked the Home Office to restrict opportunities for HSMP doctors through changes to the Immigration Rules. The Home Office did not comply with this request until February 2008.
• Later in 2006, the Department issued employment guidance instructing NHS organisations not to consider non-EEA doctors, including those with HSMP status, for training posts unless no suitable UK or EEA applicant was available. The guidance did not take effect in 2007 due to an ongoing legal challenge.
• In October 2007, the Department issued a consultation proposing to implement its employment guidance from 2008 onwards. The following month, however, the Court of Appeal upheld BAPIO's challenge to the guidance and declared it unlawful. Thus in 2008, non-EEA doctors were again allowed free access to training posts.
• The Department appealed against the Court of Appeal's decision and a final verdict on the legality of the guidance is expected from the House of Lords in May 2008. In February, the Department issued another consultation proposing to implement the guidance from mid-2008 onwards, providing it is upheld by the House of Lords.
• Also in February 2008, the Home Office made changes to its Immigration Rules, originally requested in 2006, preventing doctors gaining HSMP status in future from applying for training posts. The Department of Health acknowledged that this change would not have any impact until 2009 and would only then make a limited difference. The Home Office emphasised that this was a temporary "stop gap" measure.

We raised concerns right back from February 2006 about what to do with regard to international medical graduates. We were assured that that was all being taken care of; well, unfortunately, as it turned out, it was not taken care of…[235]

203. Witnesses emphasised the slow response to the need to manage the number of non-EEA doctors. Dame Carol Black argued that the first attempts to resolve the problem in 2006 came almost a decade too late:

I think it is a calamitous situation which came about because in 1997 the government decided we should become more self-sufficient in the production of doctors. That was the time when they should have been in discussion with the Home Office and other relevant departments of government to ensure there was a transition…[236]

204. According to Dr Jo Hilborne of the BMA, the lateness of the Government's response was compounded by the introduction of unexpected measures without proper consultation, such as the decision to end permit-free training. Dr Hilborne pointed out that such last-minute decision-making was highly unfair on non-EEA doctors:

…it was wholly wrong, immoral, unethical and unfair to entice doctors here on a promise, make them spend a fortune getting here, sitting the required exams, uproot their families and then when they have been here for six months, a year, two years, say, "Actually we have changed our minds, we do not want you; go away again."[237]

205. The confusion and lack of co-ordination surrounding Government policy in 2006 and 2007 was emphasised by Postgraduate Deaneries, who described receiving conflicting messages from the Department of Health and the Home Office. Lis Paice, Dean Director for the London Deanery recounted the chaotic communication by the Government:

We were told by the Department of Health that this guidance was that the HSMPs should not be in the first round of applications [in 2007]… We then got a message in an email from the Home Office… to say we could not do that because it would not be legal. Next, we got a message to ignore that because the department's advice was more important. Then we were told it was really up to local decision…[238]

206. The Tooke Inquiry was also strongly critical of the Government's efforts, pointing out that planning on the issue of non-EEA doctors was not co-ordinated with overall planning for the introduction of MMC:

The issues of the increased medical school cohort size were raised in MMC fora. It is not clear, however, from the evidence presented to the Inquiry that MMC ever received clear guidance on the associated DH policy or that this was ever resolved by DH and MMC senior leadership…[239]

207. Further criticism of the failure to co-ordinate policy between the Department of Health and the Home Office was levelled in the Court of Appeal's November 2007 judgment. Lord Justice Maurice Kay stated that discussions were held between the two Departments in 2006, during which the Home Office expressed doubts about the legality of restricting non-EEA applicants through employment guidance. He concluded that "the Department of Health decided to 'go it alone'" in spite of the Home Office's concerns.[240]

208. Lord Justice Sedley pointed out that it was the very contradiction between the Department of Health's guidance and existing Home Office legislation which made the former unlawful:

Put in terms which political science, though not the common law, would recognise, the acts of both ministers are acts of the state; and in terms which the common law, though probably not political science, would recognise, the state cannot be heard to say that its left hand does not know what its right hand is doing.[241]

209. Home Office officials also pointed out that the Treasury had been involved in decision-making about whether and how to change the Immigration Rules. Lorraine Rogerson, Director of Policy at the Border and Immigration Agency, described the Treasury as "closely involved in all of the development of proposals for the points-based system".[242] Foreign Office officials confirmed this.[243] The Committee asked the Treasury to provide evidence on this subject, but it refused to do so.

210. Opinions of the Government's overall performance were aptly summarised by BAPIO, which described the planning for the increase in UK medical school output as "horrendous". When asked to comment on the Government's efforts, the Chief Medical Officer stated that he did not have "sole or overall responsibility" for attempts to restrict applications by non-EEA doctors.[244]

Future policy options

211. In spite of repeated efforts by two Government departments, the status of non-EEA doctors remains largely unresolved, particularly as the legality of the Department of Health's employment guidance is yet to be established. In this section, therefore, we look at the current options for limiting non-EEA doctors' access to UK training posts. We consider the advantages and disadvantages of:

• Implementing the Department's employment guidance;
• Making further changes to the Immigration Rules through Home Office legislation; and
• Other policy options.

GUIDANCE TO EMPLOYERS

212. Issuing employment guidance to NHS employing organisations was the Department of Health's "preferred option" for restricting non-EEA applications in both 2007 and 2008.[245] The proposed guidance instructs employers not to consider non-EEA applicants for training posts unless there is no suitable UK or EEA candidate. Thus it does not prevent non-EEA doctors from taking up training posts in "shortage" specialty areas or from applying for Non-Consultant Career Grade posts. The guidance would not apply to refugee doctors or non-EEA doctors trained at UK medical schools; both of these groups would be able to freely apply for training posts.[246]

Advantages

213. It is clear that implementing its guidance remains the Department of Health's preferred option for managing non-EEA numbers in the future. In its February 2008 consultation, the Department argued that the guidance offered the best way to balance the interests of UK graduates and non-EEA doctors:

UK displacement would be minimised and migrant doctors would be able to take up training places in shortage specialties and locations.[247]

214. The Department pointed out that respondents to its October 2007 consultation had "overwhelmingly supported" the introduction of the guidance as the best way to protect opportunities for UK graduates.[248] In addition, the Secretary of State argued that the guidance would provide a comprehensive solution to the issue of non-EEA applications, eliminating the need for further measures.[249]

215. Importantly, the use of the Department's employment guidance to restrict non-EEA applications was also supported by other Government departments. Home Office officials pointed out that the use of employment guidance would mitigate the need for further changes to the Immigration Rules.[250] The Foreign and Commonwealth Office (FCO) emphasised the benefits of allowing non-EEA doctors to continue to apply for posts in shortage specialties:

Of the various options considered, the use of the DH guidance would have been our preference because it would not have automatically blocked off speciality training slots to all non-EEA doctors.[251]

Disadvantages

216. The obvious disadvantage of the Department's guidance is the continuing question over whether it is lawful. Ongoing legal action by BAPIO has already prevented the guidance from being implemented during the 2007 and 2008 recruitment rounds, causing more than 1,300 UK doctors to be "displaced" from the training system in 2007.[252] The most recent decision, by the Court of Appeal in November 2007, declared the guidance unlawful.

217. A final verdict on whether the guidance is lawful is expected from the House of Lords in May 2008. The Secretary of State declared that he was "quite confident" that the House of Lords would uphold the guidance, but he acknowledged that if it did not then alternative solutions would have to be sought.[253]

CHANGES TO IMMIGRATION LEGISLATION

218. One such alternative is to limit non-EEA applications through changes to the Immigration Rules enacted by the Home Office. As mentioned above, a partial restriction was introduced in February 2008 when the Home Office set out regulations preventing migrants achieving Tier 1 status (equivalent to HSMP status) in the future from applying for UK medical training posts.[254] The new rules were not applied to HSMP doctors already in the UK, although this could in theory be done in the future.

Advantages

219. The principal advantage of addressing the status of non-EEA doctors through changes to the Immigration Rules is that such measures are not open to legal challenge. Thus Home Office regulations offer a more reliable alternative to the Department of Health's guidance and one whose impact is easier to predict. The Department pointed out in its February 2008 consultation that Immigration Rules changes would protect opportunities for UK graduates without disadvantaging existing HSMP doctors:

They will have prospective impact and will not disadvantage migrant doctors who are currently able to apply for post-graduate training places in direct competition with UK and EEA graduates. The changes will reduce the potential for the displacement of UK doctors in the long-term…[255]

220. The Secretary of State described the new regulations as "very helpful" and predicted that there would be 3,000 fewer applicants in 2009 as a result.[256] He also pointed out that the Home Office rule changes had been cleared by the Cabinet and therefore had cross-governmental support.[257]

Disadvantages

221. In spite of this assertion, witnesses from other Government departments pointed out a number of disadvantages with attempting to limit non-EEA applications through Home Office regulations. The Home Office itself stated that preventing Tier 1 migrants from applying for medical training posts contradicted its own policy of attempting to attract young, well qualified and highly paid people to the UK:

This proposal is, of course, an exception in the policy behind HSMP and Tier 1—to attract the brightest and best by offering free access to the labour market.[258]

222. The FCO expressed a similar view, describing the changes as an "unwelcome precedent" which ran "counter to the essence of Tier 1" (the HSMP strand) of the new immigration system.[259] The FCO pointed out that sudden or excessive restrictions on opportunities for non-EEA doctors would potentially damage relationships with countries such as India:

The implementation of measures to prevent access to specialist training by non-EEA doctors would not be welcomed by the Indian Government or medical bodies. As we have said above, in recent years this issue has been top of their agenda in discussions on migration and restrictions on access would be very likely to create difficulties for our wider bilateral relationship.[260]

223. Finally, the Home Office made clear that it had agreed to make restrictions on a "temporary" basis only, in order to address the "immediate difficulties" experienced by the Department of Health. Its submission emphasised the need for the Department to quickly put in place an alternative solution:

We know the Department of Health believes it urgently needs its own sustainable solutions to workforce planning problems and has acknowledged that a solution using immigration rules is only a stop gap.[261]

OTHER POLICY OPTIONS

Limiting non-EEA applications

224. The Committee asked Government witnesses what would happen if the House of Lords did not uphold the Department of Health's guidance and whether contingency plans were in place. Amazingly, Home Office officials stated that no plans were in place and could make no suggestions for dealing with this eventuality.[262] Thankfully, the Department of Health was able to make some suggestions. The Secretary of State commented that if the Department's guidance was not upheld by the House of Lords then a "fees system", whereby non-EEA doctors were charged for postgraduate training, might be considered.[263] However, the Department's own consultation paper acknowledged a number of weaknesses with this proposal:

…such an arrangement is likely to require legislation and would take time to implement. It would be difficult to enforce recovery of fees levied after training if the doctor leaves the UK… this solution may not solve the problem of displacement unless fees could be set a level sufficient to deter most migrant doctors.[264]

225. Another alternative mentioned by the Secretary of State was to enforce the Department of Health's guidance through primary legislation. He commented that this would be preferable to passing further Home Office legislation:

The other is to see whether we could pass into legislation from my Department something that would cover this rather than dealing with it through the Highly Skilled Migrant Programme. This is predicated on the fact that we lose the appeal [to the House of Lords]. If we lose the appeal, how we can get that guidance into a much firmer setting.[265]

International development opportunities

226. Some witnesses argued, on a separate note, that some dedicated opportunities for non-EEA doctors should be retained, not to provide doctors for the NHS but rather in order for the UK to contribute to improving health systems in the developing world. Dame Carol Black commented that such programmes were supported by the Royal Colleges:

…the AMRC has recommended that the Health Departments create a limited number of training places for young doctors from developing countries, with the requirement that they return home at the end of their training. This would demonstrate commitment to an ethical approach to international recruitment.[266]

227. The Chief Medical Officer assured the Committee that programmes of this kind would not be affected by more general restrictions on opportunities for non-EEA applications.[267] The Secretary of State commented that it might be possible to implement or extend such schemes in the future.[268]

Conclusions and recommendations

228. The Committee supports the Government's long-standing policy of increasing the self-sufficiency of the UK for its medical workforce. The welcome expansion to the number of doctors trained in the UK, which began in 1999, means that the number of non-EEA doctors entering the UK training system needs to be carefully managed. There is a widespread consensus that some restrictions to opportunities for non-EEA doctors are required in order to protect opportunities for UK graduates and the considerable investment of UK taxpayers.

229. The Government's handling of this important and sensitive issue has been appalling. Despite beginning its pursuit of self-sufficiency in 1999, the Government made no real attempt to change the status of non-EEA doctors until 2006. In particular, we found the CMO's excuse (outlined in para. 210) weak and unconvincing. Its efforts since then, involving the Department of Health, the Home Office and the Treasury, have been poorly planned, badly communicated and inadequately co-ordinated. This lack of co-ordination was amply demonstrated by the failure of the Department of Health and the Home Office to arrange for their respective Ministers to give evidence to the Committee on the same day.

230. Worst of all, the Government's many initiatives failed to prevent open access to training places for doctors from across the globe in both 2007 and 2008. Hundreds of UK graduates have been unable to continue with their training as a result. Tens of thousands of non-EEA doctors, meanwhile, have suffered inconsistent and undignified treatment.

231. The Department of Health proposes to use its guidance to employers to protect opportunities for UK graduates in future. The legality of the guidance remains in question, however, and will not be finally established until May 2008. The Department has already twice failed to enforce its guidance and is running a grave risk by relying on a single legal decision as the basis of its medical workforce policy. The Department's guidance does, however, represent a good way to restrict non-EEA applications while allowing overseas doctors to train in hard-to-fill specialties. Belatedly implementing its employment guidance therefore remains the best option for managing non-EEA doctors available to the Department, and we recommend that this be done immediately if the guidance's legality is upheld.

232. If the Department's guidance is not found to be lawful then the situation looks uncertain. Surprisingly, the Home Office made no suggestions for dealing with this eventuality. Recent Immigration Rules changes are limited in scope, contradict wider immigration policy and were acknowledged to be only a "stop gap" solution by the Home Office itself. Charging non-EEA doctors for postgraduate training would be impractical and the impact would be difficult to predict. Primary legislation by the Department of Health to enforce its guidance might prove effective and we therefore recommend that the Department look further into this option if the House of Lords' verdict is unfavourable.

233. The general move towards increased self-sufficiency should not prevent the NHS from offering a limited number of training opportunities to non-EEA doctors for international development purposes. We recommend that the Department of Health work with the Royal Colleges and Postgraduate Deaneries to increase the number of dedicated opportunities for doctors from the developing world to train in the NHS for fixed periods, provided that the necessary capacity can be found within the training system.

223   European law prevents the UK from making any restrictions on non-UK doctors from within the EEA. Officials (Q 896) pointed out that this group tends in any case to represent a small proportion of training applicants, typically around 5%. Back

224   Department of Health, Recruitment to foundation and specialty training-Proposals for managing applications from medical graduates from outside the European Economic Area, p.10 Back

225   As well as representing a waste of public investment, arranging to continue training overseas is not necessarily straightforward for UK medical graduates. UK graduates have relatively limited clinical skills and experience upon graduation, and are therefore suitable only for junior training posts. Posts of this kind are not always available in overseas health systems. Back

226   MMC 56A Back

227   Q 547 Back

228   Public Expenditure Questionnaire 2005-06, Q 239 Back

229   Q 177 Back

230   Ev 173 Back

231   Q 378 Back

232   Q 728 Back

233   Q 176 Back

234   Q 378 Back

235   Q 274 Back

236   Q 545 Back

237   Q 366 Back

238   Q 585 Back

239   Aspiring to Excellence, p.68 Back

240   Court of Appeal verdict, 9 November 2007, paragraph 61 Back

241   Ibid, para 54 Back

242   Q 836 Back

243   Q 837 Back

244   Q 147 Back

245   See, for example, Department of Health, Recruitment to foundation and specialty training-Proposals for managing applications from medical graduates from outside the European Economic Area Back

246   Ibid, p.14 Back

247   Ibid, p.12 Back

248   Ibid, p.15 Back

249   Q 907 Back

250   Q 783 Back

251   MMC 59 FCO Back

252   Department of Health, Recruitment to foundation and specialty training-Proposals for managing applications from medical graduates from outside the European Economic Area. The Department does not state what proportion of "displaced" doctors have taken up non-training posts or what proportion have left the NHS altogether. Back

253   Q 913 Back

254   Home Office Press Release, New points system begins, 6 February 2008 Back

255   Department of Health, Recruitment to foundation and specialty training-Proposals for managing applications from medical graduates from outside the European Economic Area, p.13 Back

256   Q 894 Back

257   Q 902 Back

258   MMC 60 Home Office. The new Home Office points-based system takes account mainly of a candidate's qualifications and pay level. For example, 35 points are awarded for a Master's Degree and 50 for a PhD. 45 points are awarded for earning more than £40,000 per year, and 20 points for being aged under 28. 75 points are required to gain HSMP status. It is clear from these requirements that overseas doctors will generally be able to acquire HSMP status. Back

259   MMC 59 FCO Back

260   Ibid Back

261   MMC 60 Home Office Back

262   Q 778-Q 783 Back

263   Q 907 Back

264   Department of Health, Recruitment to foundation and specialty training-Proposals for managing applications from medical graduates from outside the European Economic Area, p.13 Back

265   Q 913 Back

266   MMC 56A Back

267   Q 906 Back

268   Q 905 Back