8. Proportionate means of achieving a legitimate aim
Where analysis indicates that putting in place the proposed policy would put students who share a protected characteristic at a particular disadvantage when compared to students who do not share that characteristic, then consideration must be given to whether the proposal is a proportionate means of achieving a legitimate aim.
(1) Legitimate aim:
As set out on page one, the aim of the proposed policy is to retain more doctors in NHS Scotland in the longer term. Evidence shows that Scotland domiciled graduates of Scottish medical schools are retained at a higher rate than students from elsewhere.
The aim of the proposed policy is legal. Higher education is within the devolved competence of the Scottish Ministers. The proposed policy also complies with the Scottish Ministers obligations in terms of European Union law and the "Convention rights" as defined in section 1 of the Human Rights Act 1998.
The aim of the policy is non-discriminatory. In particular, it does not treat a person less favourably because of a protected characteristic.
The aim also represents a real, objective consideration because it responds to the need to retain more doctors in Scotland, in line with other nations of the UK.
In all of the circumstances, it is considered that protecting medical school places at Scottish Universities for Scotland-domiciled / EU students is a legitimate aim and is a fair exercise of the Scottish Government’s devolved powers.
(2) Proportionate means:
On balance, the means of achieving the aim is appropriate and necessary and could not be achieved by less discriminatory means.
(i) Ministers have already taken a number of alternative steps to deliver the long term workforce supply required by NHS Scotland. These include:
- Additional undergraduate places funded by the Scottish Government. By 2020-21, there will be 190 additional undergraduate medical places in Scottish universities, including Scotland’s first Graduate Entry Medical programme(ScotGEM) and widening access places.
- The ScotGEM programme is testing a number of innovative retention methods such as the return of service bursary.
- Targeted recruitment incentives are being used - for example to fill GP Specialty Training Posts which have historically been “hard to fill.”
- The Scottish Government is working with the GMC, Medical Royal Colleges, NES and the BMA to improve the quality and attractiveness of medical education programmes, and on initiatives to improve the working lives of trainee doctors.
Despite these actions, the overall pattern of medical workforce in Scotland continues to be one of significant growth and supply challenges remain. For example, over the past five years ISD data would suggest that consultant numbers in post in Scotland have increased by about 15%. Demand for health service is increasing as people live longer but often with multi morbidities. Consequently the Scottish Government has a number of ambitious targets to grow specific sectors of the workforce. At the same time, there are challenges on the supply side. We operate in an international marketplace for staff. We know the younger generation of medical staff are increasingly seeking different work patterns and career trajectories that can involve breaks from medical training programmes. The demographic in some sectors means we risk losing a number of staff to retirement. In addition there is uncertainty around the impact of Brexit on the medical workforce. All of this creates workforce pressures.
Ministers require to take further steps to retain as many Scottish Medical Schools graduates as it possibly can to ensure that the public money invested in medical education translates into the workforce that NHS Scotland needs and a multifaceted approach is required.
(ii) It is a proportionate step to reduce places for RUK students and increase places for Scotland domiciled/EU student relative to (i) the retention rate for each group (the retention rates for Scots dom at 80% compared to 44% rUK shown in Table 1),(ii) the size of each student group ( the 55% to 29% Scots to rUK domicile in 2017/18 following same pattern in previous years as shown in Table 2 in the Annex) and (iii) the cost to the public purse of each group and the financial sustainability of the university sector (£167K to £122K to train Scots versus rUK) as shown in Table 3 in the Annex.)
Apart from Scotland domiciled students RUK students form the single largest group representing approximately 30% of intake to Scottish medical schools each year. They are retained at a significantly lower rate than Scotland domiciled students. The Scottish Government makes a significant contribution to the costs of RUK students as illustrated in Table 3.
International students represent a smaller percentage of overall medical school intake at approximately 13%. They have the lowest retention rate of all the groups at 35%. However, at undergraduate level they cost the public purse significantly less than RUK students. Additionally the fee income that they pay to university medical schools is crucial to the financial sustainability of those medical schools.
EU students are the smallest group in terms of overall medical school intake at approximately 4% but for funding purposes they are given equal treatment with Scotland domiciled students and therefore they are funded in the same way as Scotland domiciled students. We do not have reliable decoupled data from which we can reliably ascertain a retention rate in NHS Scotland for EU students. SG statistical data comes from the DLHE (Destination of Leavers from HE) statistics survey which is a voluntary survey conducted 6 months after graduation. The response rate for EU graduates is low.
Taking account of all the relevant factors the proposal is proportionate in the circumstances.
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