83: Healthcare professional regulation post-Brexit: don’t let a good thing die

Aaron Nelson Legal Director

The Trade and Cooperation Agreement[i] (TCA) reached between the EU and the UK fundamentally changes the mutual recognition of healthcare professionals between the UK and the EU member states.

Overview: we can’t go on together

EU law provides a reciprocal framework for the recognition of healthcare qualifications[ii]. This enables EU, EEA and Swiss nationals to have their qualifications recognised, and, in turn, gain access to a regulated profession in order to work on a permanent or temporary basis. The UK’s participation in this arrangement ended on the 31 December 2020, and has now been replaced by a more piecemeal system under the TCA. It is important to note that the Withdrawal Agreement guarantees the mutual recognition for UK citizens already living in the EU before 31 December 2020, and vice versa.

The TCA establishes a framework for the possible future mutual recognition of professional qualifications on a profession-by-profession, country-by-country basis through a new ‘Partnership Council’. On receipt of a joint recommendation from the relevant UK and EU member state healthcare authorities, the Partnership Council shall make a determination on whether to approve the mutual recognition agreement. It is envisaged that these would provide routes for UK medical professionals to have their qualifications recognised in the jurisdiction of an EU member state, and vice versa.

In the absence of a comprehensive recognition regime, the UK Government legislated [iii] to allow some healthcare professional regulators (those for doctors, dental practitioners, pharmacists, general care nurses and midwives) to continue to automatically recognise European qualifications for two years from 1 January 2021.

Risks: we’re caught in a trap

The loss of the mutual and automatic recognition processes poses a risk to the integrity of healthcare professional education in the UK by reducing the transferability of UK qualifications. There are currently no arrangements in place, other than with Switzerland, to allow UK qualified healthcare professionals to have their qualifications recognised in other EEA states. This means that they will be treated as third country nationals and be subject to the specific national policies and rules of each EU member state.

Under the TCA, UK healthcare regulators cannot access the Internal Market Information (IMI) system.

The IMI is an IT application that connects regulators across the EU and allows for the rapid sharing of information.

As such, UK regulators will be restricted from accessing fitness to practice records and information relevant to a professional’s registration through the IMI, and instead will rely upon the goodwill of the relevant EU member state to provide the information. This could have significant patient-safety implications that will need to be managed by UK healthcare regulators.

Following it’s exit from the EU, the UK is now a third party country for data protection purposes and may be subject to future restrictions on data-sharing. For now, the TCA allows for continued EU-to-UK data transfers up until 30 June 2021 while the European Commission (the Commission) considers whether the UK is an ‘adequate jurisdiction’ – essentially a determination by the EU that the UK’s data protection regime is robust and safe. On 19 February 2021, the Commission published two draft adequacy decisions in respect of the UK, concluding at a high level that the UK ensures a similar level of protection to the EU for personal data. Whilst this is good news for healthcare regulators who rely on cross-border data-sharing to carry out many of their key functions, no organisation should be complacent. There are still two further steps the Commission needs to take before it can adopt the draft adequacy decisions:

obtain an advisory opinion from the European Data Protection Board; and
gain approval from a qualified majority of representatives from EU Member States.

There is also the very real possibility that the draft decisions could be the subject of litigation which might result in the decisions being rendered invalid. If these adequacy decisions are not adopted, organisations will have to rely on other complex routes for sharing sensitive data, such as standard contractual clauses.

Opportunities: I can’t walk out

The UK government is now free to design its own system for the recognition of international qualifications to be implemented at the end of the standstill agreement (which is due to end by 31 December 2022). To help with the task, the Department for Business, Energy and Industrial Strategy (BEIS) published a Call for Evidence in August 2020 to gather insights on the regulation of professions. It is expected that BEIS will be putting forward a Recognition of Professional Qualifications Bill in the next session of Parliament. This represents a unique opportunity for the Government, with the input of health and care professional regulators, to design a fit-for-purpose recognition regime that takes account of the priorities of individual sectors, recognising that health and care are safety critical sectors that necessarily require a different approach to non-safety critical professions.

Those organisations who oversee health professions education will no longer be bound by the prescriptive stipulations contained within the framework of EU law (by way of example, this required basic medical education to be 5,500 of training hours undertaken within a minimum of 5 years). This provides increased latitude to design training and education programmes for future healthcare professionals which better meet the needs of the UK’s healthcare economy.

What to look out for: here we go again

Organisations across all sectors will be watching closely to see whether the draft adequacy decisions on data protection will be adopted by the Commission. Health and care professional regulators rely heavily on sensitive cross-border data transfers with their EU counterparts in their efforts to safeguard patient safety here in the UK. They should therefore be scenario-planning for the worst-case scenario now. Even if the adequacy decisions are confirmed, any ensuing stability might not last and so this time should be used to put alternative arrangements in place, such as service-level agreements with individual countries of the type that some UK regulators may already have in place with their non-EU counterparts. Our commercial contracts team and information law & data protection team stand ready to assist organisations with this important task.

Health and care professional regulators should now be actively looking for opportunities to engage with the Government on the design of the future recognition of professional qualifications regime to ensure that the replacement system is fit-for-purpose, reflects the priorities of the sector and is fair and consistent. Our specialist public affairs practice can advise on targeted political engagement and communication strategies that deliver results.