House of Lords rules against government’s restriction on foreign doctors

BMJ 2008; 336 doi: (Published 08 May 2008) Cite this as: BMJ 2008;336:1037
  1. Clare Dyer
  1. 1BMJ

Guidance from the UK government that restricts the right of thousands of foreign doctors to work in the NHS was ruled unlawful by the United Kingdom’s highest court, the House of Lords, last week.

The law lords’ ruling, by a 4:1 majority, is a victory for the British Association of Physicians of Indian Origin (BAPIO), which challenged the guidance, issued two years ago by the health secretary at the time, Patricia Hewitt. It should secure the future for thousands of doctors, mainly from the Indian subcontinent, who were encouraged to come to the UK under the highly skilled migrant programme to help staff the NHS.

The guidance to NHS employers was that doctors in the UK under the programme whose leave to remain was to expire before the end date of any training post on offer should be offered the post only if there were no suitable candidates from the European Union.

Under the programme, doctors who were needed to fill training posts in the NHS were given permission to come to the UK for training and to settle after five years.

But from about 2005 UK medical schools were turning out larger numbers of doctors, and training jobs were needed for these doctors.

The Department of Health tried to get the Home Office, which is responsible for immigration, to change the immigration rules but failed to get agreement. So the department released guidance for NHS employers. The intention was to make places available by making it impossible in practice for international medical graduates, including those already in this country, to get appropriate NHS posts, said Lord Rodger, one of the four law lords who ruled against the government.

The guidance was held to be unlawful because it had in effect introduced a restriction that went further than the immigration rules, and dashed the “legitimate expectations” of practitioners who had been encouraged to come to this country under the highly skilled migrant programme.

BAPIO’s challenge originally failed in the High Court but succeeded in the Court of Appeal last year. Having lost in the House of Lords, the government has no further avenue of appeal.

A Department of Health spokesperson said, “This is a complex judgment which needs careful consideration. We are coming to the end of a consultation on this difficult issue. That consultation is due to end on 6 May. We need to study the House of Lords’ findings carefully alongside the responses to the consultation to see what the best course of action will be.

“It can cost up to £250 000 [€317 000; $491 000] to train a UK medical student and, with the increase in UK medical schools, we are now pursuing a policy of self sufficiency.”

Pending a decision on the matter, the government has announced temporary immigration regulations to bar doctors from beyond the EU from gaining postgraduate medical training places in the UK.

Terry John, chairman of the BMA’s international committee, said, “It’s right that we have a debate about the numbers of doctors coming to the UK in future, but it’s completely wrong to scapegoat those already here. They are providing a vital service, and the government’s continued attempts to change the rules after they’ve already committed themselves to the NHS are unfair.”

The BMA has called for an end to the “knee jerk reactions” on doctor numbers and better long term workforce planning. It says that “removing the pool of international medical graduates from the UK altogether will destabilise rotas” and warns that this would “ultimately place patients at risk.”

Dr John said, “International medical staff are keeping services running. Three in 10 junior doctors are now working on an understaffed rota—partly a result of the fact that many of our overseas colleagues have already grown disillusioned and left the NHS.

“We agree that in the long term the UK should be able to produce and sustain its own medical workforce. However, knee jerk solutions are likely to have a negative impact on services. There is an urgent need to improve workforce planning so we can be realistic about the chances of training and working in this country.”

From August 2009 the number of hours junior doctors can spend in hospital will fall from 56 to 48 a week as a result of the European Working Time Directive. The BMA says this heightens the risks posed by a smaller pool of foreign doctors.


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