Regulation of Health and Social Care Professionals Consultation

attach to systemic failures to implement a Directive. 11 A similar approach is taken
to state liability to the European Commission and other Member States, whereby
only a systemic failure to transpose a Directive would attract liability. 12
Furthermore, in the unlikely event that liability was found, the Government is able
to require the regulators to contribute to any fines which were imposed. 13
13.16 Nonetheless we accept that it is important for the Government to have powers to
intervene at an early stage to avoid any failures. The effects of litigation, in which
the Government would be enjoined, are likely to be damaging to international
relations and resource intensive. We therefore propose that the default powers of
the Government (see Part 2) should include the ability to intervene in cases
where there is likely to be or has been a failure to implement the Directive
properly.
Provisional Proposal 13-1: The statute should require the regulators to specify
in rules which qualifications would entitle an applicant to be registered,
including overseas qualifications.
Provisional Proposal 13-2: The default powers of the Government should
include the ability to intervene in cases where there is likely to be or has been
a failure to implement the Qualifications Directive properly.
REGISTRANTS ENTERING FROM BEYOND THE EEA
13.17 Health and social care professionals entering the UK from beyond the EEA give
rise to issues similar to those addressed above, although their resolution is
different. These differences arise primarily from a less detailed legal framework to
allow for the recognition of qualifications. The main issue for the regulators is
whether an individual satisfies the requirements for registration, which involves
determining whether foreign qualifications can be taken as equivalent to UK
qualifications. Non-EEA applicants are often required to undertake some form of
assessment.
13.18 Most of the other regulators follow a similar framework of assessing individual
applicants and then requiring some form of additional training to introduce the
applicant to practise in the UK. For instance, at the Nursing and Midwifery
Council a non-EEA applicant must supply evidence of personal details such as
passport and birth certificate, as well as references from employers and
transcripts of training forms. There are language, practice and education
requirements as well as specific requirements for both nurses and midwives. If an
applicant then satisfies these requirements, they must then take a supplementary
course such as the Overseas Nurses Programme or the Adaptation to Midwifery
11 See particularly, Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal
Republic of Germany; R v Secretary of State for Transport ex parte Factortame Limited
[1996] I-1131; Carswell v The Secretary of State for Transport, The Motor Insurers' Bureau
[2010] EWHC 3230 (QB); and Negassi v Secretary of State for the Home Department
[2011] EWHC 386 (Admin) at para 25.
12 For example, see Commission of the European Communities v Germany (29/84) [1985]
E.C.R. 1661 and Commission of the European Communities v UK (556/08).
13 Localism Act 2011, ss 48 to 57.
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