INVESTIGATION UNDER SECTION 17 OF THE WELSH LANGUAGE ACT Hywel Dda University Health Board

Transcription

1 INVESTIGATION UNDER SECTION 17 OF THE WELSH LANGUAGE ACT 1993 Hywel Dda University Health Board October 2014

2 Background The principal aim of the Welsh Language Commissioner, an independent body established under the Welsh Language Measure (Wales) 2011, is to promote and facilitate the use of Welsh. This entails raising awareness of the official status of the Welsh language in Wales and imposing standards on organisations. This, in turn, will lead to the establishment of rights for Welsh speakers. Two principles will underpin the work: Contact Details: In Wales, the Welsh language should be treated no less favourably than the English language; Persons in Wales should be able to live their lives through the medium of the Welsh language if they choose to do so. Tel: Website: welshlanguagecommissioner.org The Welsh Language Commissioner Market Chambers 5-7 St Mary Street Cardiff CF10 1AT

3 Contents 1 Context 3 2 The Investigation 4 3 Findings of the Investigation 6 4 Further information 19 5 Conclusions 20 6 Recommendations 22 Appendices 24

4 Foreword This investigation report is issued by the Welsh Language Commissioner in accordance with Section 19 of the Welsh Language Act (the Act) following the transferral of relevant functions under the Welsh Language Act 1993 to the Welsh Language Commissioner through a series of statutory instruments. 1

5 Part II - Welsh Language Act 1993 Investigations - Compliance with Welsh Language Schemes An investigation is held into the possible failure of a public body to implement its language scheme, under Section 17 of the Welsh Language Act (1) Where it appears to the Board 1, whether on a complaint made to it under section 18 below or otherwise, that a public body may have failed to carry out a scheme approved by the Board, the Board may conduct an investigation in order to ascertain whether there has been a failure. Reporting (2) The procedure for conducting an investigation under this section shall be such as the Board considers appropriate in the circumstances of the case, and in particular an investigation may be conducted in private... A report is to be produced under Section 19 of the Welsh Language Act based on the findings of the investigation. 19 (1) Where the Board undertakes an investigation under section 17 above, it shall send a report of the results of the investigation to the public body concerned, to the Secretary of State and, where the investigation is conducted on a complaint made under section 18 above, to the complainant... (2) Where the Board considers that it would be appropriate for a report of the results of an investigation to be published, either in the form of the report made under subsection (1) above or in some other form, the Board may arrange for publication in such manner as it thinks fit. (3) Where on completing an investigation the Board is satisfied that the public body concerned has failed to carry out the scheme, the Board may include in its report recommendations as to action to be taken by the public body in order to remedy the failure or to avoid future failures. Any queries regarding this report should be directed to the Welsh Language Commissioner, Market Chambers, 5-7 St Mary Street, Cardiff, CF10 1AT. This investigation was conducted following a complaint made by a member of the public under section 18 of the Welsh Language Act The report is based on correspondence between Hywel Dda University Health Board and the Welsh Language Commissioner and submitted documentation. 1 The Welsh Language Board was abolished on 31 March 2012 and the powers to investigate complaints were transferred to the Welsh Language Commissioner from 1 April

6 1 Context 1.1 Hywel Dda University Health Board s Welsh language scheme was approved by the Welsh Language Board on 16 April 2010 in accordance with the Welsh Language Act The scheme notes that the Health Board has adopted the principle that it will treat the Welsh and English languages on the basis of equality in the conduct of public business in Wales and that patients, as a matter of good practice, should be provided with a service in the language of their choice. 1.2 Hywel Dda University Health Board (the Health Board) is the statutory body responsible for providing all NHS healthcare services for a population of more than 370,000 in Ceredigion, Carmarthenshire and Pembrokeshire. It is one the largest employers in the three counties with a workforce of more than 11,000 and a budget of around 700 million. 1.3 The Health Board serves one of Wales most rural areas providing Acute, Primary, Community, Mental Health and Learning Disability services. This is done in 4 General Hospitals - Bronglais Hospital, Aberystwyth, Prince Philip Hospital, Llanelli Glangwili Hospital, Carmarthen, and Withybush Hospital, Haverfordwest - 8 Community Hospitals, 11 Health Centres, 55 GP Practices, 37 Dental Practices, 99 Pharmacies and 50 Ophthalmic Centres, as well as other sites According to the 2011 census, 135,798 (36.7%) of the population aged 3 years and over of the area served by the Health Board speak Welsh - ranging from 19.2% in Pembrokeshire to 47.3% in Ceredigion Hywel Dda University Health Board was established on 1 October 2009 following the reorganisation of NHS Wales, by merging Hywel Dda NHS Trust and Carmarthenshire, Ceredigion and Pembrokeshire Local Health Boards. All of the organisations it superseded had a Welsh language scheme. 1.6 Hywel Dda University Health Board s Welsh language scheme was approved by the Welsh Language Board on 16 April 2010 in accordance with the Welsh Language Act The Scheme notes that the Health Board has adopted the principle that it will treat the Welsh and English languages on the basis of equality in the conduct of public business in Wales and that patients, as a matter of good practice, should be provided with a service in the language of their choice. 1.7 This report s main objective is to draw conclusions, based on the evidence collated, on the Health Board s compliance with specific clauses of its statutory Welsh language scheme. The report does not come to conclusions regarding the Health Board s general compliance with its language scheme. 1.8 This is the first investigation conducted by the Welsh Language Commissioner (the Commissioner) under section 17 of the Welsh Language Act 1993 in the case of Hywel Dda University Health Board. 2 Hywel Dda University Health Board's Annual Monitoring Report and Annual Report and Accounts 2012/

7 1.9 The Commissioner would like to thank the Health Board for its cooperation during the investigation. 2 The Investigation 2.1 On 18 November 2013 the Commissioner received a complaint from Parent A (Appendix 1) that a non-welsh speaking school nurse had assessed his 5 year old child (Child A), a monoglot Welsh speaker, in a Welsh medium primary school in Ceredigion. The complainant was of the opinion that the service was unsatisfactory due to the following: lack of consideration of language choice in arranging the service; lack of sensitivity towards a child s communication needs; failure to provide a Welsh language service to children in a Welsh medium school, where the ability to communicate in Welsh is essential. 2.2 On 19 November 2013, the Commissioner wrote to Parent A asking for a copy of the Health Board s response to their claims (Appendix 2). 2.3 Parent A had submitted a written complaint to Hywel Dda University Health Board on 8 October 2013 (Appendix 3). The Health Board acknowledged receipt of the complaint on 25 October 2013 but no response was provided until 23 December 2013, by which time Parent A had submitted his complaint to the Commissioner. A copy of the Health Board s response was received on 27 December 2013 (Appendix 4). 2.4 The Commissioner wrote to the Health Board on 27 February 2014 to ask for evidence of its implementation of specific clauses of its Welsh language scheme in the context of its school nursing service (Appendix 5). 2.5 A response was received from the Health Board on 26 March 2014 (Appendix 6). It explained that, when appointing school nurses, it takes the language of the school into account and that it appoints Welsh speaking nurses to families of Welsh medium schools, particularly if Welsh is the main language of that family of schools. However, the Health Board explained that there is a shortage of suitably qualified Welsh speaking school nurses to provide a full Welsh language service in every school. 2.6 Following receipt of this information, the Commissioner decided to conduct an investigation under section 17 of the Welsh Language Act 1993 and the Health Board was informed in a letter dated 21 May 2014 (Appendix 7). The letter explained the subject of the investigation and included initial questions for the purpose of collecting information. 2.7 The investigation was conducted in private by the Welsh Language Commissioner s officers in the Policy and Compliance Directorate. 2.8 It was explained to the Health Board that the investigation would consider the implementation of relevant clauses of sections of its Welsh language scheme in relation to service delivery, the Health Board s meetings with the public, staffing and recruitment and procedures to monitor the implementation of the Welsh language scheme. 4

8 2.9 It was also explained that the investigation could consider any other relevant clauses of the scheme as the investigation progressed The Commissioner received a response in a letter dated 12 June 2014 (Appendix 7). The response addressed most of the Commissioner s questions. The letter explained that the Health Board, in the weeks leading up to the investigation, had taken some steps to implement its Bilingual Skills Strategy which would enable the Health Board to plan its services better The Commissioner wrote to the Health Board on 27 June 2014 (Appendix 8) to provide a further opportunity for it to submit evidence on two issues. The Health Board responded in a letter dated 4 July 2014 (Appendix 9) A draft of the investigation s report, including its findings, was sent to the Health Board on 5 September 2014 to provide an opportunity to confirm the report s factual accuracy (Appendix 14) The Health Board s comments on the factual accuracy of the draft report were received on 23 September 2014 (Appendix 15) The Commissioner wrote to the Health Board again on 24 September 2014 (Appendix 16) to provide a further opportunity for it to refer to specific evidence relating to the factual accuracy of the report The final report was approved by the Welsh Language Commissioner on 1 October A copy was sent to the Health Board, Parent A and the Minister with responsibility for the Welsh Language in the Welsh Government. 5

9 3 Findings of the Investigation 3.1 Consideration 1: Service Delivery It appeared that the Health Board had failed to comply with the following clauses of its Welsh language scheme: Clause The Health Board will offer services at every possible opportunity in the language of choice without the need for the patient/service user to make a specific request for that service. Clause The Health Board will aim to ensure there is sufficient Welsh speaking staff available in all care settings. In some service areas there may be a shortage of Welsh speakers and in such circumstances other arrangements will need to be put in place so that Welsh speaking patients receive a service in their language of choice. The procedures used to provide a Welsh language service will vary according to the nature of the work, the services being offered, and the percentage of bilingual staff within each area. Such procedures will reflect: mechanisms for establishing the language choice at the earliest opportunity; arrangements made to ensure that language choice is fully reflected in the service offered; mechanisms to ensure that other departments are informed of language choice on referral to them. Clause 2.4 Hywel Dda Health Board holds meetings other than public meetings in all of its services. Included in this category are case conferences, clinical consultations and events to promote health and well-being etc. The Health Board is committed to ensuring that members of the public who wish or are required to have face to face dealings with the Health Board will be able to do so through the medium of Welsh or English In order to determine whether the Health Board had complied with the above clauses in its Welsh language scheme, the Health Board was asked for evidence of how the school nursing service was planned and organised in order to provide a language choice for users In its response to the Commissioner, the Health Board noted that, in organising the school nursing service, it considers language choice by appointing Welsh speaking nurses to work in families of Welsh schools, particularly if Welsh is the main language of that family of schools The primary school attended by Child A is located in a village in rural Ceredigion and serves the village itself and the surrounding areas. The school defines itself as a Welsh medium school which means that Welsh is the main medium of the life and work of the school. 4 4 Information in the school handbook 6

10 3.1.4 According to the 2011 Census, approximately 45-50% of the population of the area aged 3 years and over can speak Welsh Despite this, the Health Board confirmed, in a letter dated 23 December 2013 (Appendix 4) to Parent A, that the designated nurse for Child A s primary school was a non-welsh speaker even though at least one of the school s pupils is a monoglot Welsh speaker. It was also confirmed that Child A s clinical assessment had been undertaken by that nurse in English The Health Board proposes that the reason for designating a non-welsh speaking nurse for Child A s primary school is that: there is a shortage of suitably qualified Welsh speaking nurses to provide a full and equitable service in every setting, at all times No evidence was provided to demonstrate that the Health Board had tried to establish the language choice of the pupils in the primary school attended by Child A or any other school - using mechanisms such as analysing the demographic profiles of the areas that it serves and considering definitions of Welsh medium provision in schools - in order to be able to determine which schools should be given priority for Welsh provision in cases where there are insufficient school nurses with Welsh skills In the Health Board s letter dated 12/6/14 (Appendix 8) it is noted that the Framework for a school nursing service for Wales 6 requires the Health Board to appoint nurses registered as Specialist Community Public Health Nurses (SCPHN) to every secondary school and family of primary schools The Health Board explained that 9 school nursing posts were advertised in 2010 but only 3 candidates possessed the required SCPHN qualification, and of those only 1 spoke Welsh. It was also explained that the shortage of Welsh speakers within the service is a side-effect of the historic underinvestment in the service until the Framework for a School Nursing Service for Wales was introduced by the Welsh Government in Section of the Welsh language scheme acknowledges that some service areas may face difficulties recruiting Welsh speakers due to a shortage of candidates with the necessary skills or qualifications. In such cases, the Welsh language scheme commits the Health Board to: put [arrangements] in place so that Welsh speaking patients receive a service in their language of choice However, no evidence received demonstrated that the Health Board had identified and recorded a shortfall in its ability to provide a Welsh medium service in Child A s primary school. Furthermore, no evidence was presented that the Health Board had considered other methods of planning its service in order to be able to provide a Welsh medium service in the school. 5 Data source: 2011 Census. 6 A Framework for a School Nursing Service for Wales, Welsh Government (2009) 7

11 The Welsh Government s quality delivery document for the National Health Service recognises the importance of providing services focussed on users language needs 7 : This [providing services focussed on users needs] includes satisfying the needs of Welsh speakers and their families or carers, by ensuring they are able to receive services in their own language through the care process if they wish. For many, language is a matter of need and in this context a care need. For example, people with dementia or a stroke can lose their second language; some children under the age of five only speak Welsh. Attention to addressing the communication needs all of health service users needs to be an integral element of service planning and delivery Although it acknowledges the importance of young children as a key group of vulnerable patients/users in its Welsh language scheme, there is no evidence that the Health Board planned its procedures to meet the needs of young Welsh speaking children in the context of providing a school nursing service in the school attended by Child A The Health Board reported on 23 December 2013 that every 5-6 year old child is offered an individual health interview (in the school) to assess their speech and hearing and measure their weight and height. It was explained that the Health Board asks for the parents consent to conduct the interviews and invites them to be present in order to discuss their child s health and development Although the Health Board had written to the parents of the children in the school attended by Child A to ask for their consent to conduct a clinical consultation and invite them to attend, no evidence was provided that it ensured that the parents and children who wished or were required to have face to face contact with the Health Board could do so through the medium of Welsh The Health Board reported to the Commissioner, on 12 June 2014, that it intended to review current staff distribution to see whether Welsh staff could be matched to demographic profiles. Conclusion 1 In designating a non-welsh speaking nurse to conduct assessments of children in a Welsh medium school, the Health Board has failed to fulfil clauses and 2.4 of its Welsh language scheme. As the nurse was unable to provide a Welsh medium service, the child of Parent A was offered an English only service. Considering the language medium of the school and the demographic profile of the area served by the school, it can be concluded that a proportion of the school s youngest pupils are monoglot Welsh speakers. Therefore, it can be reasonably concluded that those children were assessed by a school nurse with suitable vocational/professional qualifications but who couldn t communicate with them in their only language. As the assessment undertaken by the school nurse involves collating information by talking to 7 p.8, Achieving Excellence: The quality delivery plan for the NHS in Wales (Welsh Government, 2012) 8

12 the child, it is difficult to see how this can be achieved if the child and nurse do not have a language in common. Conclusion 2 By failing to take sufficient steps to put arrangements in place to ensure that Welsh speaking patients receive a service in their language of choice in cases where there is a shortage of Welsh speakers to provide that service, the Health Board has failed to fulfil clause of its Welsh language scheme. It is acknowledged that recruiting Welsh speakers to some professions in the health sector is difficult due to shortages and the evidence submitted by the Health Board suggests that this is true for school nurses. In order to overcome these obstacles and in order to ensure ongoing compliance with the Welsh language scheme, the Health Board is expected to adopt other methods of service delivery in order to provide the service in the user s language of choice. Conclusion 3 The evidence received gives reason to suspect that Child A s experience is common to other children within the Health Board s area and that this failure to comply with the Welsh language scheme possibly extends to other areas within the Health Board. 9

13 3.2 Consideration 2: Staffing and Recruitment It appeared that the Health Board had failed to comply with the following clauses of its Welsh language scheme: Clause The Health Board will ensure that there are adequate numbers of bilingual staff with the necessary skills to provide a bilingual service. Clause The Health Board will identify the locations, posts and teams where the ability to speak Welsh is essential or desirable, and formulate the job description accordingly. This will be monitored by the Welsh Language Steering and Monitoring Group, in conjunction with departmental needs and activity and with the authority of the Health Board. Specific criteria to support such assessments will be agreed. Clause The Health Board will in specialist areas where the strategy shows there are shortfalls in Welsh speakers, take a pro-active approach in recruitment and training, in order to attract Welsh speakers into the relevant profession/area In order to determine whether the Health Board had complied with clause of the Welsh language scheme, information was requested on the number of school nurses who are employed by the Health Board and who can provide a Welsh service It was noted in the Health Board s response on 12 June 2014 (Appendix 7) that there are 32 school nurses within the school nursing service along with 6 staff nurses who support the service. The following breakdown was provided of the Welsh language skills of those school nurses and staff nurses: County Number of Welsh speakers School Nurses Staff Nurses Number of Welsh learners School Nurses Staff Nurses Number of non- Welsh speakers School Nurses Staff Nurses Total Ceredigion Pembrokeshire Carmarthenshire Total Schools define the language medium of their provision in accordance with the Welsh Government s information document Defining schools according to Welsh medium provision (Appendix 11). Across the three local authorities served by the Health Board, there are 108 Welsh medium primary schools and 18 dual stream primary schools. 8 8 The Welsh Language in Carmarthenshire - report by the Census Working Group (Carmarthenshire County Council, March 2014)

14 3.2.4 There are 45 (88%) primary schools in Ceredigion, 17 (22%) primary schools in Pembrokeshire and 64 (69%) primary schools in Carmarthenshire in these two categories. Of the 28 secondary schools in the 3 local authority areas, there are 13 (46%) bilingual secondary schools category 2A to 2C, with 7 (88%) schools in Ceredigion, 1 (13%) school in Pembrokeshire and 5 (42%) schools in Carmarthenshire belonging to these categories The above data appears to support the Health Board s claims that there aren t enough Welsh speaking qualified school nurses to provide a full service to Welsh medium, dual stream and bilingual schools in the Health Board s operational area In order to determine whether the Health Board had complied with clause of the Welsh language scheme, clarification was requested of how decisions were made on the language requirements of School Nursing posts. Information was requested on the number of School Nursing posts designated as Welsh essential and how many of those posts have been filled by Welsh speakers In the Health Board s letter dated 12/6/14 (Appendix 7) it was explained that the ability to speak Welsh was not essential for any of the school nursing posts but that the ability to speak Welsh had been designated as desirable for all the posts. The Health Board s logic for coming to the decision is: The main requirement for this role is that an individual has to be registered as a Professional Specialist Community Public Health Nurse... As a result no posts have been advertised as Welsh essential due to a shortage of registered specialist school nurses in Wales More Than Just Words - the Strategic Framework for Welsh language services in Health, Social Services and Social Care 9 has identified children and young people as one of the four priority groups where Welsh language provision is extremely important. They are considered to be a priority and particularly vulnerable because their care and treatment suffers when they are not treated in their own language The Health Board s Welsh language scheme acknowledges that some key patient groups, including children and young people, cannot be treated effectively other than in their first language. This finding is reinforced by the expectation in the Framework itself that all Health Boards will consider providing access to staff of a specific gender, ethnicity and ability to work in a pupil s preferred language The Framework for a School Nursing Service in Wales (the Framework) describes the duties of a school nurse as follows: Work closely with children and young people to develop a trusting relationship; Work with parents/carers providing extended child and family support; Work with a range of professionals and agencies including school staff, GPs etc; Health promotion and health education; Immunisations and disease prevention; 9 More Than Just Words, the Strategic Framework for Welsh language services in Health, Social Services and Social Care (Welsh Government, 2012) 11

15 Supporting children with medical needs and addressing the needs of children with complex health problems The introduction to section 4 of the Welsh language scheme notes that the Health Board will develop a Language Skills Strategy to enable it to provide a quality service to our bilingual population and visitors in line with commitments in the language scheme. The Health Board s Bilingual Skills Strategy was approved in February The introduction also notes that the Health Board, in implementing section 4 of the Welsh language scheme relating to staffing and recruitment, will seek guidance from the Welsh Language Board s guidance document Recruitment and the Welsh Language 11. This document, along with the document issued by the Welsh Language Commissioner to supersede it: Recruitment: Welsh Language Considerations, contain advice on how to consider the Welsh language as part of routine HR issues. It offers guidance on the criteria to be considered when determining the language requirements of posts. When recruiting for posts where there is no one available to provide a Welsh medium service or where more Welsh speaking staff are needed in order to provide a service, it is suggested that consideration should be given to criteria such as the following in order to determine whether Welsh language skills should be designated as essential: a post which involves, wholly or in part, being in contact with the public, where the individual is expected to be able to communicate in English or Welsh; a post located in a Welsh-speaking community, which has regular contact with the public; posts which involve a great deal of contact with Welsh speakers; situations where there are no members of staff available to provide a Welsh language service In order to determine how the Health Board fulfilled the commitment to seek guidance from the publication and agree on specific criteria to support assessments of the language requirements of posts, as well as to determine how the duties of the post were considered as part of that process, the Health Board was asked to provide a copy of its recruitment and selection policies In its response on 12 June 2014, it was explained that the Health Board follows the All Wales Standardised Working Arrangements for Recruitment developed by NHS Wales Shared Services Partnership (Employment Services). A copy was provided of the relevant documentation for those arrangements; however it did not contain any guidance on how the language requirements of posts should be assessed. It appears that the documents contain the administrative processes to be followed when advertising posts and confirming the appointment of candidates Although the Commissioner wrote to the Health Board again on 27 June 2014 to provide another opportunity to submit information on its recruitment and selection 10 A Framework for a School Nursing Service for Wales, Welsh Government (2009) 11 Recruitment and the Welsh Language - Guidance under Section 11 of the Welsh Language Act 1993 (Welsh Language Board) 12

16 policy, no evidence was received of any organisational framework for attracting and appointing members of staff in order to deliver the organisation s objectives and ensure that it operates in accordance with the requirements of employment legislation and other relevant laws such as the Welsh Language Act Rather, it was explained that the Health Board follows the process outlined in its Bilingual Skills Strategy in order to determine the language requirements of posts. No explanation was given of the process followed by the Health Board to determine the language requirements of posts before the Strategy was approved in February It is further noted that the Strategy was only implemented within the school nursing service in May 2014, some months after the complaint leading to this investigation was received On 3 July 2014, following implementation of Stage 1 of the Strategy which involves conducting an assessment of the workforce s current language skills, a breakdown was provided of the language skills of staff in the school nursing service in 2013 and In 2013, the language skills of 30 of the service s staff members (63% of the service) were not recorded; following the implementation of Stage 1 of the Strategy, the record for 49 members of staff (94% of the service is recorded). No timetable was provided for the implementation of the Strategy s other three key stages: Welsh language service needs assessment; Identifying the current skills gap; Welsh language skills action plan As noted previously in this report, the Health Board s logic for not designating the ability to speak Welsh as an essential requirement of school nursing posts is the shortage of qualified candidates in Wales Clause of the Welsh language scheme acknowledges that there may be a shortage of Welsh speakers in some specialist areas and that, in those cases, the Health Board will be expected to take a proactive approach to recruitment and training in order to attract Welsh speakers to the profession. In order to determine whether the Health Board had complied with this clause in its Welsh language scheme, evidence was requested of the steps taken to address the shortage of qualified school nurses who can provide services in Welsh It was explained that the service advertised 9 school nursing posts in 2010 of those 8 were in Carmarthenshire and 1 in Ceredigion. Successful candidates were required to hold the SCPHN qualification - Welsh skills were not an essential prerequisite for any of the posts. Only 3 candidates had the qualification, 1 of whom was a Welsh speaker. The 3 candidates were appointed. Six of the posts were re-advertised aiming to attract nurses who did not hold the SCPHN qualification but who were willing to work towards achieving the qualification after appointment. Two Welsh speakers were recruited as part of this process Due to the fact that Welsh skills were only deemed desirable when appointing the school nurses, it is noted that the Health Board cannot include learning Welsh as a condition of employment for the non-welsh speaking nurses appointed. The Health Board states that it supports staff who wish to learn or improve their Welsh language skills. During the investigation, inconsistent data was received regarding the numbers of Welsh learners within the school nursing service and no details were provided regarding the support given to them. 13

17 As it was already aware that it would prove difficult to recruit nurses with the SCPHN qualification, the Health Board explained that it advertised a school nursing post in Ceredigion in 2014 inviting applications from qualified school nurses as well as nurses who would undertake to achieve the qualification. As a result, a Welsh speaker without the qualification was appointed to the post Even though the recruitment campaigns prove that the Health Board experiences difficulties recruiting school nurses in general, the evidence does not demonstrate that the Health Board has took any specific proactive steps to attract more Welsh speaking candidates. The percentage of Welsh speakers appointed as a result of the two recruitment campaigns in 2010 is equal, 33%. It does not provide evidence that the Health Board planned purposefully in response to the lack of Welsh speakers in the service The document which provides guidance to organisations regarding the content of language schemes - Welsh language schemes: their preparation and approval in accordance with the Welsh Language Act acknowledges that recruiting Welsh speakers with the necessary skills may be difficult at times. In such circumstances, it is acknowledged that organisations may need to choose the option of appointing a non-welsh speaking individual to a post where the ability to speak Welsh is considered essential. However, it is noted that such posts should be advertised and offered on the understanding that those who cannot speak Welsh will be required to learn Welsh as a condition of their employment and achieve a level of fluency within a reasonable period. It is noted that the level of fluency set should correspond to the level needed to fulfil the duties of the post and that this should be made clear to candidates in the job specification, along with providing support by the organisation to enable them to learn the language The guidance document Recruitment and the Welsh Language from which the Health Board undertakes to seek guidance, reports on the findings of a survey 13 that organisations that decide not to designate Welsh as essential due to a presumption or previous experience that they will not be able to appoint Welsh speakers. It was also reported that employers who had considered the nature of a post s language requirements and included practical recruitment wording in job advertisements, were more successful in appointing candidates The document also acknowledges that organisations can experience difficulties in recruiting Welsh speakers to posts where the ability to speak Welsh is an essential prerequisite. In such circumstances, organisations are advised to ensure that there are other means of providing the Welsh language service and to redesign the duties and responsibilities of the post before it is re-advertised with Welsh as desirable Even though the document, from which the Health Board has undertaken to take advice, details the options available to try to overcome the difficulties of recruiting Welsh speakers (as outlined above), no evidence was presented that the Health Board had considered them when planning the school nursing service. 12 p.41, Welsh Language Schemes - their preparation and approval in accordance with the Welsh Language Act 1993 (Welsh Language Board, 1996) 13 The Planning and Management of Bilingual Skills, a Study conducted on behalf of the Welsh Language Board (Cwmni Iaith, 2006) 14

18 Section 4.1 of the Welsh language scheme notes that the Health Board intends to work with educational and professional establishments within Wales to rectify as far as possible any long-term problems with regard to the recruitment of Welsh speakers. It is further noted that the Health Board will indicate its requirements to the appropriate bodies with regard to the numbers of bilingual staff that are needed to provide a service to patients in the language of their choice The Welsh Government provides the funding for NHS staff in Wales to undertake a course to gain the SCPHN professional registration qualification the course is offered at Swansea University, Cardiff University, The University of South Wales and Glyndŵr University. 14 No evidence was submitted that the Health Board had worked with an educational establishment to try and address the shortage of school nurses with Welsh skills that gain the SCPHN qualification. In July 2014 however, whilst this investigation was underway, the Health Board presented its annual monitoring report on the implementation of its Welsh language scheme for the period The report noted that one of the Health Board s key challenges for highlight to training providers that there is a shortage of health professionals with Welsh language skills for some specialist posts. It is further noted that there is a need to ensure that training providers in Wales are recruiting a percentage of Welsh speakers on their courses and that this should be reflected in the Health Board s Workforce Scheme. Conclusion 4 It is concluded that the Health Board has failed to comply with clause of the Welsh language scheme by failing to provide a sufficient number of qualified school nurses to provide a Welsh language service to pupils in Welsh medium schools in the Health Board s area. Conclusion 5 It is concluded that the Health Board has failed to comply with part of clause by failing to agree and implement criteria to support assessment of the language requirements of posts. No evidence was provided by the Health Board that the requirements of the Welsh language scheme have been incorporated in its routine processes and practices for recruiting and selecting school nurses, nor that managers have been given guidance as to when posts should be advertised as Welsh desirable or essential. No evidence was provided that the Health Board, at the time of Parent A s complaint, had considered the advice in the Recruitment and the Welsh Language guidance (or the Commissioner s guidance - Recruitment: Welsh Language Considerations ) when determining the language requirements of school nursing posts. Given the language demography of the area served by the Health Board, the number of Welsh medium, dual stream and bilingual schools in the area and the fact that a proportion of the children in primary schools cannot speak English until they are 7 years old, the Health Board should have concluded that the ability to communicate verbally and effectively in Welsh is an essential requirement for all school nursing and staff nursing posts serving Welsh medium or dual stream primary schools and bilingual secondary schools. 14 Nursing and Midwifery Council, July

19 Conclusion 6 It is concluded that the Health Board has failed to comply with clause of the Welsh language scheme due to its failure to take any specific proactive steps to recruit and train Welsh speakers, even though it was aware of a shortage of qualified Welsh speaking practitioners. The Health Board does now use an alternative means of meeting the demand for a Welsh service in the area where Child A s school is located by providing an additional school nurse to support the designated non-welsh speaking school nurse with some aspects of her work. Nevertheless, the evidence presented suggests that this arrangement is only in place in a small part of the Health Board s operational area. 16

20 3.3 Consideration 3 - Monitoring It appeared that the Health Board had failed to comply with the following clauses of its Welsh language scheme: Clause The Health Board will monitor each department s process to ensure that a suitable Welsh Language service is provided. Clause The Health Board will identify the locations, posts and teams where the ability to speak Welsh is essential or desirable, and formulate the job description accordingly. This will be monitored by the Welsh Language Steering and Monitoring Group, in conjunction with departmental needs and activity and with the authority of the Health Board. Specific criteria to support such assessments will be agreed. (Bold font applied by the Welsh Language Commissioner.) In order to determine whether the Health Board had complied with these clauses, it was asked to explain its arrangements for monitoring the school nursing service s capacity to provide the service in accordance with the requirements of the Welsh language scheme No evidence was provided by the Health Board that any arrangement was in place to scrutinise and, if needed, challenge decisions regarding the language prerequisites of posts, even though the Commissioner gave the Health Board another opportunity on 27 June 2014 to present information clarifying its monitoring arrangements The Welsh language scheme notes that the Health Board s Welsh Language Steering and Monitoring Group will monitor and review the language scheme. It is further noted that it will report regularly on the scheme s implementation through the Communications Department s report to the Health Board s members During the investigation, no evidence was presented regarding the Welsh Language Steering and Monitoring Group s remit - its membership, the issues discussed, permanent items on the agenda, what standard reports are received, to whom it reports its findings or refers concerns so that they receive further attention In the absence of evidence from the Health Board, information was collated from other sources such as the Health Board s Welsh language scheme, correspondence and recent Annual Monitoring Reports in order to ascertain to what extent the above clauses were implemented: - The Welsh Language Steering and Monitoring Group was established in July 2010 and meets bimonthly. It is chaired by the Health Board s Welsh Language Champion who is an Independent Member of the Board and its members include representatives from Senior Management across a range of disciplines. The Group reports to the Health Board s Strategy and Planning Sub-committee; 17

21 - The Welsh Language and the Workforce Sub-committee was established in early 2011 and it meets bimonthly. The Group reports to the Welsh Language Steering and Monitoring Group on the language scheme s Workforce and Organisational Development targets, identifying gaps in Welsh skills and supporting steps to address them by implementing the Bilingual Skills Strategy; No evidence was provided that the Welsh Language Steering and Monitoring Group has discussed or received a report relating to decisions on the language prerequisites of posts generally or in relation to the school nursing service. No evidence was received to demonstrate that the Group had assessed risks to the implementation of the Welsh language scheme in the school nursing service or any other service, or that decisions regarding the language prerequisites of posts had been challenged From the evidence gained from other sources, it appears that there is a structure in place to enable the Health Board to comply with part of clause of its Welsh language scheme to monitor that job descriptions are prepared in accordance with the findings of assessments of the language requirements of posts. However, no evidence was presented that the structure is used to scrutinise decisions regarding the language requirements of school nursing posts and appointments, to challenge them or refer them for further consideration in cases where there is belief that the implementation of the Welsh language scheme is at risk In its Annual Monitoring Report on the implementation of its Welsh language scheme for , the Health Board reported that of the 5 vacant posts in reception areas advertised, none had been designated as Welsh essential. No Welsh speakers were recruited to the posts. This data reinforces doubts that there is a lack of scrutiny of assessments and decisions regarding the language prerequisites of posts and a failure to identify risks to the implementation of the above clauses in the Welsh language scheme. Conclusion 7 It is concluded that the Health Board has failed to comply with clause and part of clause of the Welsh language scheme as there is no evidence that the Welsh Language Steering and Monitoring Group monitored the language prerequisites of posts and it doesn t appear that this Group, or any other forum, has a role in monitoring departmental processes to provide Welsh medium services. 18

22 4 Further information Bilingual Skills Strategy In its evidence the Health Board refers to the Bilingual Skills Strategy approved on 26 February 2013 by the Board s Integrated Governance Committee. The aim of the Strategy is to ensure that the Health Board has sufficient staff with appropriate language skills to conduct a bilingual healthcare service to the public and it outlines 4 key stages that each service/team should undertake in order to ensure that appropriate skills are available to provide a bilingual service: Stage 1 Stage 2 Stage 3 Stage 4 Audit of current skills Welsh language service needs assessment Identifying the current skills gap Welsh language skills action plan The Strategy also contains details of the Health Board s Learning and Development Strategy ; strategic recruitment considerations - including guidance on determining the language prerequisites of posts (Appendix 12) and the Welsh language skills matrix (Appendix 13) and the administrative process adopted to ensure that the strategy is implemented and monitored. No evidence was submitted that the Strategy was being implemented when Parent A s complaint was received. During the investigation, the Health Board reported that it had started implementing Stage 1 of the strategy in the school nursing service during May 2014 and an analysis of the data was provided to the Commissioner (Appendix 10). In the Health Board s Annual Monitoring Report on the implementation of its Welsh language scheme , presented to the Commissioner in June 2014, it was further reported that Stage 1 of the Strategy was ongoing across the organisation and that the Bilingual Skills Strategy Sub-group established was developing action plans for each Manager/Service Lead. The Commissioner has not received information regarding the timetable for implementing the Strategy s four key stages in the school nursing service or the Health Board s other services. 19

23 5 Conclusions Given the evidence available, the investigation concludes that Hywel Dda University Health Board has failed to implement the following clauses of its Welsh language scheme in this case: Service Delivery , 1.3.3, 2.4 By failing to provide a Welsh service to Child A, it is concluded that the Health Board has failed to comply with clause of the Welsh language scheme. It is concluded that the Health Board has also failed to comply with this clause in all cases where a non-welsh speaking nurse is provided to Welsh medium and dual stream primary schools and category 2A to 2C bilingual secondary schools, on the basis that it is reasonable to conclude that a proportion of children in these schools cannot speak or understand English, or that Welsh is the language of choice of some pupils and parents in those schools. By failing to take steps to put arrangements in place to ensure that Welsh speaking pupils in schools receive a service in their language of choice in cases where there is a shortage of Welsh speakers to provide that service, it is concluded that the Health Board has failed to comply with clause of the Welsh language scheme. By failing to ensure that the health interview of Child A was conducted in their language of choice, it is concluded that the Health Board has failed to comply with clause 2.4 of the Welsh language scheme. It is concluded that the Health Board has also failed to comply with this clause in all cases where health interviews for school children between 4 and 5 years old are undertaken by a non-welsh speaking school nurse in Welsh medium and dual stream primary schools, on the basis that it is reasonable to conclude that a proportion of children in these schools cannot speak or understand English. Staffing and Recruitment , 4.1.3, By failing to provide a sufficient number of qualified school nurses to provide a Welsh service to pupils in Welsh medium schools in the Health Board s area, it is concluded that the Health Board has failed to comply with clause of the Welsh language scheme. Given the language demography of the Health Board area; the number of Welsh medium, dual stream and bilingual schools in the area and the fact that a proportion of children in primary schools cannot speak English until they are 7 years old, the Health Board s staffing and recruitment procedures should have concluded that the ability to communicate verbally and effectively in Welsh is an essential criterion for all school nursing and staff nursing posts serving those schools. By failing to agree and then implement criteria to support assessment of the language requirements of school nursing and staff nursing posts, it is concluded that the Health Board has failed to comply with some elements of clause The Health Board does now use an alternative means of meeting the demand for a Welsh service in the area where Child A s school is located by providing an additional school nurse to support the designated non-welsh speaking school nurse with some aspects of her work. Nevertheless, the evidence presented suggests that this arrangement is only in place in a small part of the Health Board s operational area. It failed to take any specific proactive steps to recruit and train Welsh speakers, even 20