The Draft WHO Code of Practice on the International Recruitment of Health Personnel
Long a simmering problem, the global health workforce shortage is now reaching crisis proportions. In response, Member States of the World Health Organization (WHO) adopted resolution WHA 57.19 in May 2004 mandating development of a non-binding code of practice on the international recruitment of health personnel. On September 1, 2008 the WHO Secretariat published a draft of the proposed instrument, and conducted Web-based public hearings on the draft. This Insight provides background on the global health workforce crisis and describes the development of the draft code of practice.
The Global Health Workforce Crisis
In the past few decades, migration of health workers has expanded and patterns of migration have become increasingly complex. Increased demand for health workers in high-income countries with aging populations is pulling large numbers of health workers from some of the worldâs poorest nations, contributing to severe shortages of trained health workers in the poorest countries and remotest areas. According to WHO, 57 countries now face a severe health workforce shortage, with a total deficit of 2.4 million doctors, nurses and midwives.
These shortfalls are greatest in sub-Saharan Africa â the recognized epicenter of the global health workforce crisis. Africa now bears 24% of the worldâs disease burden, but has only 3% of health workers and less than 1% of the worldâs economic resources. âPullâ factors, including targeted recruitment efforts from rich destination states, combine with âpushâ factors such as low wages, poor and unstable working conditions and dilapidated public health systems, to contribute to acute health workforce shortages in Africa and other source regions. Rural areas everywhere face worse shortages because in almost all countries, health workers cluster in urban areas.
As health workers seek job opportunities at home and abroad, in a dynamic and increasingly globalized health labor market, recent studies show that the problem of acute shortages of health workers is deepening in many poor states. Increased demand for health workers for care and treatment of persons with AIDS has strained national capacity to provide core services such as maternal and child care, and prevention and treatment of infectious diseases such as malaria, tuberculosis and influenza.
Human resources for health â the people who deliver health services â are a vital component of health systems. As WHO has observed, the workforce is at the heart of each and every health system. Imbalance in the distribution of health workers is a key factor leading to gross inequities in health services delivery and population health outcomes among and within countries.
Global Responses: The Road to the WHO Draft Code
In the last decade, countries have adopted a number of non-binding instruments aimed at addressing these issues â including the Commonwealth Code of Practice for the International Recruitment of Health Workers, the United Kingdom National Health Service Code of Practice for the International Recruitment of Healthcare Professionals, and the Pacific Code of Practice for Recruitment of Health Workers in the Pacific Region. These voluntary codes of practice and similar non-binding legal instruments are widely criticized for weak or non-existent monitoring and implementation mechanisms. Critics point out, for example, that existing non-binding instruments on health worker migration have been largely ineffective in limiting health worker migration from poor countries or protecting health workersâ human rights, because they lack meaningful mechanisms to collect data and to monitor national compliance.
In order to advance a global framework for dialogue and cooperation among source and destination countries on health worker recruitment issues, in 2004 the World Health Assembly (WHA) adopted Resolution 57.19 mandating that the WHO Director-General develop a non-binding code of practice on health worker migration in consultation with WHO Member States and all relevant partners. This resolution was the first time that WHO has used its constitutional authority to develop a non-binding code to be adopted by the World Health Assembly since the 1981 International Code of Marketing Breast-milk Substitutes.
As is now widely recognized, WHO traditionally avoided the use of legal instruments and strategies to advance its global health goals. Over the last 15 years, however, WHOâs organizational culture has evolved. Starting with the negotiation of WHOâs first convention, the 2003 Convention on Tobacco Control, and continuing with revision of the International Health Regulations, the Organization has expanded beyond conventional scientific, technical approaches to international health and increasingly embraced legal strategies to advance its public health mission â as seen in the WHA resolution and the first draft code of practice.
The First Draft of the WHO Code of Practice on the International Recruitment of Health Personnel
The draft WHO code of practice aims to establish a global architecture for national and international dialogue and action on international recruitment of health personnel. One of the chief advantages of a non-binding format is that relevant non-state actors can participate in developing and implementing the instrument. The non-binding code is designed to be global in scope and is specifically directed towards all concerned, not just WHO Member States but also health workers, recruiters, employers and civil society.
International health workforce migration is a multidimensional global health challenge. While health workers have a human right to migrate to countries that wish to employ them, and destination countries can appropriately strengthen their health systems by employing foreign health workers, large-scale migration can have a devastating impact on the health systems of source states. In addition, there are significant concerns about unethical and unfair international recruitment practices. States hold divergent views on some key aspects of a regime for international health worker recruitment, including whether recruitment from states experiencing severe workforce crisis should be limited, and whether and how poor states should be compensated for training health workers that migrate to industrialized countries.
The eleven articles in this first draft of the proposed global code of practice do not aim to address and resolve all of the issues raised by international recruitment of health personnel. The goal for the first draft was to set forth a brief, straightforward framework and platform for substantive negotiations. WHO Member States may negotiate more detailed national and international commitments in the final version of the code or in later instruments.
Article 3 of the draft code sets forth core principles, such as Article 3.1, which recognizes that international recruitment can make a legitimate contribution to the development and strengthening of national health systems, but that the development of voluntary international standards and coordination of national policies are desirable in order to mitigate the potential negative impact of health worker recruitment on source countries and to protect health worker rights. Article 3.3 also provides that international recruitment of health personnel should be conducted in accordance with principles of transparency, fairness and mutuality of benefits. Pursuant to Article 3.4, the draft code sets forth principles and encourages the elaboration of voluntary standards in a manner meant to promote an equitable balance of interests among health workers, source countries and destination countries.
In relation to the interests of health workers, for example, Article 4 sets forth fundamental standards for ethical international recruitment and employment that are consistent with existing international human rights and labor law standards. Article 4.2, for instance, declares that Member States should ensure that migrant health workers should enjoy the same legal rights and responsibilities as domestically trained health workers in all terms of employment and conditions of work, subject national law and international agreements. Articles 4.3 through 4.8 call upon Member States to ensure that recruiters and employers give equal treatment to migrant and domestic health workers in respect of compensation and opportunities for employment.
A robust framework for global governance
Responding to earlier criticisms of non-binding instruments, this initial draft code recommends voluntary measures to promote national action and international compliance. Consistent with contemporary international practice in other areas of international law, the Code recommends a robust and transparent framework for global governance, including voluntary mechanisms for effective information sharing, monitoring and supervision.
The WHO draft code breaks new ground with its proposed provisions on data collection and information exchange. The data available to gauge the dimensions of this problem are few, incomplete, and tend to be inconsistent between countries. Articles 7 and 8 call on Member States to voluntarily establish or strengthen programs to gather data on health worker migration and its impact on health systems, and to exchange this information with other states through WHO. Article 8 also recommends that Member States designate a national focal point for information exchange and that WHO maintain a registry of such focal points. Article 7.4 directs that WHO should develop technical guidelines to harmonize data collection and reporting.
The draft code recommends several voluntary mechanisms to promote its implementation. Article 9.4 emphasizes that all stakeholders should understand their shared responsibility to work individually and collectively to ensure that the objectives of the Code are achieved. In order to advance implementation, Article 9.5 calls on Member States to maintain a record, updated at regular intervals, of all recruiters authorized by national authorities to operate within their jurisdiction, to the extent possible. Article 10.3 directs WHO to coordinate the information system and network of national focal points, and the draft code also calls on WHO to develop guidelines and make recommendations on other practices and procedures to make the Code effective.
Article 9 of the draft code recommends that Member States should periodically report to other states on results achieved and difficulties encountered in implementing the code in accordance with a schedule to be set by the WHA. It also calls on the Director-General of WHO provide periodic reports to the WHA on implementation of the code. Article 10.4 calls upon non-state actors to play a meaningful role in this process by reporting to WHO on activities related to Code implementation. The draft also calls on the WHA to periodically review the Codeâs effectiveness and relevance, and update it as required.
Through these and other measures, the draft aims to establish a transparent international procedural structure to foster national commitment, accountability and continual global dialogue on international health worker migration. Although non-binding, the proposed WHO code may, therefore, provide a significant first step towards the development of an effective framework for national and international cooperation to maximize the benefits of and mitigate the potential negative impacts of international health worker migration on countries and to safeguard the rights of migrant health workers.
Web-based hearings on the draft code took place in September 2008. Summaries of the comments collected are available from WHO. The draft code is currently being revised, taking into consideration comments received, and will be submitted to the WHO Executive Board for consideration at its 124th Session in January 2009.
Allyn L. Taylor is a Visiting Professor of Law at Georgetown University Law Center She is also an Adjunct Professor of International Relations at the Johns Hopkins University Paul H. Nitze School of Advanced International Studies. Professor Taylor has been a legal consultant to the WHO division on human resources for health.
 WHO, International Migration of Health Personnel: A Challenge for Health Systems in Developing Countries, E.B. Doc. EB122/16 Rev.1 (16 January 2008).
 Mary Robinson and Peggy Clark, Forging Solutions to Health Worker Migration, 371 The Lancet 691 (February 23, 2008).
 Lawrence O. Gostin, The International Migration and Recruitment of Nurses: Human Rights and Global Justice, 299 JAMA 1827-1829 (2008).
 Over the past decade there has also been a proliferation of non-binding instruments adopted by professional organizations, such as the World Medical Association and the International Council on Nurses, as well as bilateral agreements between source and destination countries. In the United States, AcademyHealth, in collaboration with the OâNeill Institute for National and Global Health Law, launched a consensus building process with representatives from the hospital, union, nurse training and licensure, foreign nurse and recruiter sectors in the US to develop a code of practice. The resultant Voluntary Code of Ethical Conduct for the Recruitment of Foreign Educated Nurses to the United States was released in September 2008. Available at http://www.fairinternationalrecruitment.org/TheCode.pdf. Examples of bilateral instruments include the Memorandum of Understanding Between the United Kingdom and South Africa and the Memorandum of Understanding Between Namibia and Kenya on Technical Cooperation in Health.
 Annie Willets & Tim Martineau, Ethical International Recruitment of Health Professionals: Will Codes of Practice Protect Developing Country Health Systems? (January 2004), available at www.liv.ac.uk/lstm/research/documents/codesofpracticereport.pdf.
 Catherine Pagett & Ashnie Padarath, Review of Code and Protocols for the Migration of Health Workers, The Regional Network for Equity in Health in East and South Africa (EQUINET) Discussion Paper 50 (September 2007).
 Allyn L. Taylor, Governing the Globalization of Public Health, 32 J. Law Med. & Ethics 500 (2004).
 Ruth Roemer, Allyn Taylor & Jean LaRiviere, Origins of the WHO Framework Convention on Tobacco Control, 94 Am. J. Public Health 936 (2005).