Towards a regional strategy to strengthen the nurse workforce of the English-speaking CARICOM (Caribbean Community) : international legal instruments, agreements and obligations

 69374 H N P D i s c u s s i o N P a P e R Towards a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM International Legal Instruments, Agreements and Obligations Christoph Kurowski, Carmen Carpio, Marko Vujicic, Lawrence O. Gostin and Tanya Baytor January 2012  TOWARD A REGIONAL STRATEGY TO STRENGTHEN THE NURSE WORKFORCE OF THE ENGLISH-SPEAKING CARICOM: International Legal Instruments, Agreements, and Obligations Christoph Kurowski, Carmen Carpio, Marko Vujicic, Lawrence O. Gostin, and Tanya Baytor January 2012  Health, Nutrition and Population (HNP) Discussion Paper This series is produced by the Health, Nutrition, and Population (HNP) Family of the World Bank's Human Development Network (HDN). The papers in this series aim to provide a vehicle for publishing preliminary and unpolished results on HNP topics to encourage discussion and debate. 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Since the material will be published as presented, authors should submit an electronic copy in the predefined template (available at www.worldbank.org/hnppublications on the Guide for Authors page). Drafts that do not meet minimum presentational standards may be returned to authors for more work before being accepted. For information regarding the HNP Discussion Paper Series, please contact Martin Lutalo at mlutalo@worldbank.org or 202-522-3234 (fax). © 2011 The International Bank for Reconstruction and Development / The World Bank 1818 H Street, NW Washington, DC 20433 All rights reserved. ii  Health, Nutrition and Population (HNP) Discussion Paper Toward a Regional Strategy to Strengthen the Nurse Workforce of the English-speaking CARICOM: International Legal Instruments, Agreements, and Obligations Christoph Kurowski,a Carmen Carpio,b Marko Vujicic,c Lawrence O. Gostin,d and Tanya Baytore a ECSHD, The World Bank, Washington DC b LCSHD, The World Bank, Washington DC c HDNHE, The World Bank, Washington DC d O’Neill Institute for National and Global Health Law at Georgetown University Law Center, Washington DC e O’Neill Institute for National and Global Health Law at Georgetown University Law Center, Washington DC Paper cofinanced by the World Bank and the Norwegian Agency for Development Cooperation (NORAD), Human Resources for Health Trust Fund as phase 2 of World Bank stream of work on the Nurse Labor and Education Market in the English-speaking Caribbean. Abstract: This paper assesses relevant international obligations of English-speaking Caribbean Community (ES CARICOM) countries and the pros and cons of different instruments that govern a regional strategy to strengthen the region’s nurse workforce. The paper presents a critical review of international legal agreements governing health personnel to which ES CARICOM countries subscribe and reviews the advantages and disadvantages of international legal instruments, drawing on evidence in the literature and expert opinions. Keywords: nurses, nursing, human resources for health, health worker migration, Caribbean, legal instruments, regional strategy Disclaimer: The findings, interpretations, and conclusions expressed in the paper are entirely those of the authors, and do not represent the views of the World Bank, its Executive Directors, or the countries they represent. Correspondence Details: Carmen Carpio, MSN I7-026, the World Bank, 1818 H Street, NW, Washington DC; (202) 473-6522; (202) 522-0050; ccarpio@worldbank.org; www.worldbank.org/lachealth iii  Table of Contents ACKNOWLEDGMENTS ............................................................................................... V PREFACE ........................................................................................................................ VI EXECUTIVE SUMMARY .......................................................................................... VII PART I – INTRODUCTION ........................................................................................... 9 PART II – INTERNATIONAL LEGAL INSTRUMENTS ........................................ 12 Legally Binding International Instruments................................................................ 12 Bilateral Treaties .................................................................................................... 15 Multilateral Treaties ............................................................................................... 16 Framework Convention Protocol Approach .......................................................... 16 Non–Legally Binding International Instruments ....................................................... 17 Resolutions of International Organizations and Declarations and Pacts by States 19 Codes of Practice ................................................................................................... 21 Memorandums of Understanding (MoUs) ............................................................. 23 Pros and Cons and Implementation Challenges of Binding versus Nonbinding International Legal Instruments ................................................................................ 24 International Legal Agreements and Obligations Governing Policies for Health Professionals in the ES CARICOM ........................................................................... 25 Legally Binding Instruments Governing Policies for Health Personnel ................ 26 The General Agreement on Trade in Services (GATS) ..................................... 26 The CARICOM Single Market and Economy (CSME)..................................... 29 The ILO Migration Conventions ........................................................................ 31 Non–Legally Binding Instruments Governing Policies for Health Personnel ....... 32 The Regional Plan for Action for Human Resources for Health (2007–15) ...... 32 The Commonwealth Code of Practice for the International Recruitment of Health Workers (2003) ....................................................................................... 34 The Global Code of Practice on the International Recruitment of Health Personnel (May 2010) ........................................................................................ 36 Obligations of ES CARICOM Countries under International Legal Agreements. 40 PART II – CONCLUSIONS .......................................................................................... 44 ANNEX 1. DEFINITIONS ............................................................................................ 46 International Legal Definitions ................................................................................. 46 iv  ACKNOWLEDGMENTS This study has been prepared by the World Bank’s Latin America and Caribbean Region Health Unit; its Caribbean Country Management Unit; its Health, Nutrition and Population anchor unit; and the O’Neill Institute for National and Global Health Law at Georgetown University. The study team included Christoph Kurowski and Carmen Carpio (Task Team Leaders, World Bank), Marko Vujicic (co-Task Team Leader, World Bank), Lawrence Gostin (O’Neill Institute), Yuki Murakami and Tomoko Ono (World Bank), and Tanya Baytor and Christina Helden (O’Neill Institute). Viviana Gonzalez and Julie Nannucci provided editorial, logistical, and document processing support. Peer reviewers were Monique Vledder and Maria Eugenia Bonilla-Chacin. The study design benefitted from three rounds of consultations that were a part of the dissemination of an assessment of the Nurse Labor and Education Markets in the English-speaking CARICOM. The first round of consultations took place in March 2010 in Jamaica, hosted by the ministry of health and bringing together representatives from the ministry of health, the Jamaican nursing bodies and associations, Jamaican nurse teaching institutions, the University of the West Indies, the International Labour Organization, and the World Health Organization. The second round of consultations took place in July 2010, hosted by the Regional Nursing Body (RNB) and bringing together chief nursing officers; and the final consultation was held in September 2010, hosted by the CARICOM and bringing together the Caribbean ministers of health. The authors are grateful to the World Bank for publishing this report as an HNP Discussion Paper. v  PREFACE Health workers form the heart of every health system. They play a critical role not only in delivering health services, but also in motivating people to seek the care they need. As demand for good health care rises around the globe, a growing number of countries face shortages of doctors, nurses, midwives, and support workers. These shortages are especially acute in developing countries. Linked to this, developing countries also face challenges in how to improve training capacity, performance, and distribution of health workers. In the Caribbean, the focus is on strengthening the nurse labor force. Nurses there constitute the largest group of health professionals and play the central role in strengthening preventive health services in the face of the demographic and epidemiological transitions that have shifted the burden of disease from infectious to chronic conditions. But with open market reforms underway both regionally and internationally, English-speaking Caribbean nurses now face unprecedented mobility in the labor market. Thanks to their high-quality education and native language, they have been increasingly inclined to migrate to Canada, the United Kingdom, and the United States for work. To pre-empt the deeper nursing shortages in the Caribbean, collaboration is needed at the regional level. A first phase of collaboration between the ES CARICOM and the World Bank produced a comprehensive picture of the nurse education and labor market, demonstrating both a supply insufficient to meet growing demand as well as tremendous losses of human capital at multiple points in the markets. The study further highlighted the need for a regional approach to strengthen workforce monitoring, to improve and expand training capacities, and to manage migration. In this second phase of work, an evaluation of legal instruments was carried out to identify potential instruments that can be built upon to govern a regional approach and action. Our hope is that through our continued collaboration with the ES CARICOM, the region can begin to make headway toward a regional approach to address the challenges that face the nurse labor force and produce economic and social benefits that cross country boundaries and positively affect the region. Keith Hansen Director Human Development Department Latin America and Caribbean Region World Bank vi  EXECUTIVE SUMMARY 1. With growing shortages fuelled by the health needs of a rapidly aging population and tremendous losses of human capital occurring at multiple points in the markets, the supply of nurses in the English-speaking Caribbean is insufficient to meet demand. Reducing shortages requires swift policy action in three priority areas: strengthening workforce monitoring, improving and expanding training capacities, and managing migration. 2. Given broad consensus about priority areas for policy action and the need for a regional approach, countries asked the Bank to identify relevant obligations under existing international legal agreements and examine their pros and cons. This included an examination of lessons learned in the use of various legal instruments to identify the most appropriate instrument to govern a regional strategy and strengthen the region’s nurse workforce. 3. In response to the governments’ request and in the absence of analysis in the literature, the present study assesses relevant obligations through a critical review of international legal agreements governing health personnel to which English-speaking CARICOM (ES CARICOM) countries are signatories and reviews the pros and cons of international legal instruments, drawing on evidence in the literature and expert opinions. 4. Obligations under legally binding, international agreements, for instance, the Global Agreement on Trade in Services (GATS), the Caribbean Single Market Economy (CSME), and conventions sponsored by the International Labour Organization (ILO) do not limit the use of policy instruments to manage migration. Furthermore, they say nothing at all about the policy priority areas of nurse training and workforce monitoring. Obligations under non–legally binding agreements, namely the Commonwealth and the World Health Organization Code of Practices and the Pan American Health Organization (PAHO)–sponsored Regional Plan for Action provide a supporting framework for regional action in all of the priority policy areas. A regional legal agreement could therefore shape policies and rulings on health personnel in the context of the GATS and CSME and provide granularity to the broad principles laid out in the Code of Practices and the PAHO Regional Plan for Action. 5. In defining the scope of commitments of a regional legal agreement, ES CARICOM states would have to ascertain whether they would commit to actions to strengthen the nurse workforce or the health workforce more broadly. While the challenges of strengthening the nurse workforce have been systematically assessed, information about other groups of health professionals remains patchy. At the same time, however, the literature suggests that causes and trends are likely to be the same or similar. In defining commitments, CARICOM states would face the challenge of a weak, (albeit growing) evidence base for policy action in the priority areas. Knowledge gaps exist particularly in cross-country coordination in expanding training capacities and managing migration to the benefit of both source and destination countries. Therefore, it vii is critical that the scope of commitments includes actions to monitor the workforce and evaluate policy initiatives. 6. As the evidence continues to grow, the ES CARICOM will need to identify a flexible instrument that allows it to adjust policies. This need for flexibility speaks against the adoption of a legally binding instrument such as a multilateral treaty or a framework convention, to which changes are cumbersome and costly. Furthermore, ES CARICOM stakeholders favor quick action, while negotiating legally binding instruments tends to be a lengthy process in which commitments are attenuated. For the same reasons, adopting a non–legally binding instrument seems advantageous. Learning from the experience of overly ambitious initiatives (for example, the Commonwealth Code of Practice), it could focus on a few of the most urgent priorities, and promise action negotiated quickly with commitments adjusted or expanded as needed and appropriate. These advantages of flexibility and faster pace, however, must be weighed against the cost of commitments that are not enforceable under international law. However, international experience suggests that non–legally binding instruments create expectations that constitute powerful incentives for compliance. The risks of poor compliance could be further mitigated by ensuring gains for all states, commitments to monitor the workforce, and evaluated policies and external reviews (for example, by the ILO). 7. Within the category of non–legally binding instruments, a multilateral memorandum of understanding seems the most suitable option. This is because a resolution would require a sponsoring UN agency, and because a code of practice would also govern private institutions, which play a minor though not negligible role for the training and employment of the health workforce in the ES CARICOM. A multilateral memorandum of understanding could be converted into a pact among states as more and more countries enter the agreement and joint actions produce results and greater visibility for the initiative in the region as well as globally. 8. Therefore, a multilateral memorandum of understanding with a focus on a few of the most urgent and promising actions, negotiated quickly and with commitments adjusted and expanded as needed, seems the most appropriate instrument and approach to translate high levels of political commitment into an actionable regional strategy to strengthen the ES-Caribbean nurse workforce. viii  PART I – INTRODUCTION 9. In 2008, at the request of the ministers of health, the World Bank initiated a stream of work to strengthen the nurse workforce in the English-speaking Caribbean. At that time, the ministers of health were concerned with chronic staff shortages in local health facilities and about anecdotal evidence of significant migratory outflows. They considered shortages and outflows key impediments to the provision of quality health services and the ability to attract businesses and retirees to the region, an important source of economic growth. For at least four reasons, they requested the World Bank to focus its research on the nurse workforce. Nurses constitute the largest group of health professionals and play a critical role in strengthening preventive health services in the face of demographic and epidemiological transitions. With the implementation of the CARICOM Single Market and Economy (CSME), nurses enjoy free movement in the regional labor market. Furthermore, thanks to their high-quality education and native language, they are more likely to migrate and work in Canada, the United Kingdom, and the United States. 10. A first phase of work provided a comprehensive picture of the nurse education and labor markets of the ES CARICOM, demonstrating both a supply insufficient to meet a growing demand as well as tremendous losses of human capital at multiple points in the markets (World Bank 2009). The study estimated the stock of nurses in the ES CARICOM at approximately 7,800 in 2007 with shortages under existing policies at 3,400 nurses increasing to 10,700 in 2025 due to the health needs of a rapidly aging population. On the supply side, the analysis uncovered tremendous loss of human capital at multiple points in the nurse education and labor markets. For every 100 qualified nursing applicants, only 34 were accepted into programs. Of the 34 that were accepted, only 20 graduated. Within 20 years, only 5 out of the 20 graduates would remain working in the ES CARICOM. 11. The first phase of work highlighted three priorities for policy action: strengthening workforce monitoring, improving and expanding training capacities, and managing migration. Strengthening the monitoring of the workforce is critical, as information remains scarce and impedes evidence-based policy making. Improving the quality of training seems the best entry point to bolster the nurse workforce in the short term. While dropouts represent a significant loss, the literature is abundant with evidence to inform policy making, and some schools have achieved substantially higher-than- average completion rates. Expanding training capacities presents the most viable option for meeting medium- and long-term demand. Box 1 below provides a summary of the policy recommendations that surfaced during the first phase of work for each priority policy area. Unlike other regions in the world, there are no binding constraints to scaling up training slots except that creative strategies are needed to address the insufficient number of nurse tutors. Managing migration is crucial for stabilizing the nurse labor market. With the vast majority of nurses expressing an intention to migrate, immigration policies of destination countries are the main drivers of outflows. In extensive consultations, regional stakeholders carefully reviewed the findings of the study and endorsed the extensive consultations. 9  Box 1. Policy Recommendations from Phase 1 Study, “The Nurse Labor and Education Market in the English-speaking CARICOM: Issues and Options for Reform