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EC Law and the Medical Profession

Introduction

European Community (“EC”) law touches on practically all areas of life. This is as true for the medical profession as it is for everywhere else. This article examines the right of the freedom of movement of doctors under EC law and the interrelated responsibilities of the British medical authorities.

The right of the freedom of movement of doctors under EC law

One of the fundamental freedoms under the EC Treaty is the freedom of movement of persons. A goal of the Member States is to make this a reality. It is obvious that there are some fundamental structural barriers to the movement of people, such as language. There is little that Member State action can do to alter such fundamentals, at least in the short-term. There are other barriers that can be dismantled. One such is the problem posed by the fact that different Member States operate different courses and provide different qualifications, even in the same professions. Clearly, this could deter or prevent those qualified in one Member State from seeking to work in another. The way this problem has been overcome, at least in theory, has been by the introduction of legal provisions designed to provide for the mutual recognition of qualifications. That is to say, a system has been established whereby qualifications have become exportable. The principle of mutual recognition plays a central role in the operation of the Single Market within the European Union, in that it allows for the freedom of movement of persons without the need for harmonisation of national legislation at the European level.

The specific legal provision applicable to doctors in this context is Council Directive 93/16/EEC (as amended) of 5 April 1993 (“the Directive”), made under Article 47 EC. Articles 2 and 4 are the core provisions of the Directive. Article 2 relates to primary medical qualifications. It obliges the Member States to recognise the diplomas, certificates and other evidence of formal primary medical qualifications awarded to nationals of Member States, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards. This element of the Directive was implemented into domestic law by The European Primary Medical Qualifications Regulations 1996 (“the Regulations”), which came into force on 10 July 1996. Article 4 of the Directive is couched in very similar terms, albeit that it refers to diplomas, certificates and other evidence of formal qualifications in specialised medicine. This aspect of the Directive was implemented into domestic law by The European Specialist Medical Qualifications Order 1995 (“the Order”), which came into force on 1 January 1997. The Directive and the implementing domestic provisions only apply to nationals of the European Economic Area (“EEA”), i.e. nationals of the 15 Member States plus Norway, Iceland and Liechtenstein, and their family members enjoying parasitic rights under EC law.

The law relating to primary medical qualifications is the most straightforward. In simple terms, and by way of example, a doctor qualified in Germany with German nationality is entitled to have his qualification recognised in the United Kingdom and so be entitled to work in this country as a registered medical practitioner. It must be stressed, however, that the Directive only provides for the recognition of qualifications by the competent authorities in the host Member State. It does not guarantee an automatic right of access to the medical profession.

Free movement in practice

Applicants wanting to practise medicine in the United Kingdom have first to determine the body to which they must apply for mutual recognition of their qualifications. In the case of those holding only primary qualifications, the competent authority to apply to is the General Medical Council (“GMC”). The GMC is also responsible for maintaining the register of medical practitioners. Rather confusingly, the Regulations refer throughout to the ‘General Council’. It is only in the explanatory note at the end of the Regulations where this is clarified as meaning the ‘General Medical Council’. Whilst this may seem obvious to the British reader, it is not necessarily the case for a foreign applicant.

The arrangements for applying for specialist registration can be very complex. The ultimate competent authority for the purposes of the recognition and registration of specialist medical qualifications is again the GMC (see paragraph 3(2) of the Order), and it is to this body that straightforward applications are made. In such cases, the GMC will process the application and place the specialist on the appropriate register. It goes without saying, however, that lawyers rarely see the straightforward cases. Supposing the EEA national’s primary and specialist qualifications are both from a non-EU state? Or that one of those qualifications was awarded in an EU state, whereas the other was not? In these cases, the Directive does not usually apply to the application for specialist registration. This does not mean that the EEA national is ineligible for specialist registration. The competent authorities of the Member States are required by Article 43 EC, as interpreted by the ECJ, to take all the qualifications and experience of EEA national doctors into account and to assess them against the criteria for registration (See, in particular, case C-238/98 Hocsman [2000] ECR I-6623). In these kinds of cases, the body which decides if applicants are entitled to be on the specialist register is the Specialist Training Authority of the medical Royal Colleges (“STA”).

The STA is a company limited by guarantee established pursuant to the Order. It is ultimately responsible for determining applications made to it on a case-by-case basis. However, and to complicate matters still further, applications are actually submitted to, and initial assessments carried out by, the Joint Committee on Higher Medical Training (“JCHMT”). The JCHMT, representing the Federation of the Royal Colleges of Physicians of the United Kingdom, has been delegated authority to act as agent to the STA. Once it has undertaken the initial assessment of the application it forwards the details to the STA with a recommendation. The STA then takes the actual decision on specialist registration. Any decision taken must be capable of being made the subject of judicial proceedings whereby its legality under EC law can be reviewed (340/89 Vlassopoulou [1991] ECR I-2357). If the decision is positive, it is then the task of the GMC to place the applicant on the specialist register. There is an internal appeals process if the decision is negative. Where the JCHMT/STA have justified doubts as to the authenticity of documents submitted with an application, it is actually the GMC’s responsibility to make enquiries of the competent authorities in the Member State in which those documents were purportedly issued. Lawyers and doctors alike can take it as read that this division of responsibilities between three different organisations in itself hinders the process of freedom of movement.

Further problems have been caused by a significant omission in the Directive as it stood before 31 July 2001. It did not prescribe the time period within which the competent authorities dealing with a mutual recognition application should determine that application. As a consequence, there was no such time period in either of the implementing domestic provisions. This critical oversight means that the time period has to be implicitly construed by reference to the standards of domestic administrative law. Such a construction produces a likely deadline of three months from the date the application has been properly submitted. The author has it on good authority that applications to the JCHMT/STA frequently take longer than this to be determined. As well as being frustrating to the applicant, delays beyond three months are likely to provide grounds for applying for judicial review. There is no doubt that the STA is susceptible to applications for judicial review: R v Specialist Training Authority, ex parte British Medical Association (1999) 47 BMLR 95.

Applicants seeking GMC registration will invariably be doing so as a first step towards working in the United Kingdom. The vast majority of medical vacancies are advertised in BMJ Classified. The jobs on offer in this journal rightly make specific qualifications and experience a precondition for appointment. This is to be expected, and defended, if public health is to be safeguarded. For Consultant posts in particular, the advertisements often make reference to membership of a Royal College. EEA applicants may not hold such membership but may have equivalent membership in their country of origin. It is for this reason that NHS Trusts are required to state that the essential qualification for a Consultant post is membership of the relevant Royal College or equivalent. The task of deciding if an EEA applicant’s qualifications are equivalent will fall to the appointment committee. Recent editions of BMJ Classified reveal a significant minority of hospitals stipulating Royal College membership as ‘desirable’ or even ‘essential’ in their advertisements, with no mention of equivalence. Such stipulations inevitably dissuade EEA nationals holding equivalent membership from applying for the posts in question. Any applicant rejected for a post on such a basis is likely to have a strong claim for a remedy in law.

Plans and developments

The NHS Plan was presented to Parliament by the Secretary of State for Health in July 2000. It includes a strategy to streamline the system of medical education in this country (see paragraph 8.28). One of features of this strategy is the abolition of the STA and the creation of a new Medical Education Standards Board. It remains to be seen if or when this change will be implemented and if it will have any effect on the application process described in this article.

As always, there have been developments in the courts since the first draft of this article was written. The ECJ gave judgment in case C-232/99 Commission of the European Communities v Kingdom of Spain on 16 May 2002. The essence of this decision was the ruling that the Spanish government had failed to transpose Article 8 of the Directive correctly into domestic law. In reaching its decision, the ECJ took the opportunity to reiterate the principles set out in cases such as Vlassopoulou and Hocsman and to underline the aim of the Directive in seeking to establish a system of automatic and unconditional mutual recognition.

Readers are advised to look out for the decision of the High Court in Athanassios Lambiris v Specialist Training Authority (Claim Number: CO/5266/2001). The case concerns a claim for judicial review by an EEA doctor of a decision by the STA appeal panel upholding an initial STA decision not to recommend specialist registration.

More significant still are the recent amendments to the Directive brought about by Directive 2001/19/EC (“the new Directive”), which came into force on 31 July 2001. It imposes on the competent authorities of the host Member State a mandatory obligation to take into consideration the recognition by another Member State of non-EU qualifications. It also introduces an obligation on those same authorities to determine applications for mutual recognition within a maximum period of four months. Express mention is also made of the need for a right of appeal to a court of law where an application for mutual recognition has been rejected. This right of appeal will also apply in the event of a failure by a competent authority to determine an application within the stipulated period.

Each Member State has until 1 January 2003 at the latest to bring into force laws, regulations and administrative provisions necessary to comply with the new Directive. It is encouraging that the EU authorities have recognised some of the failings of the present system, and that they have taken this step to correct them. Welcoming the adoption of the new Directive, Internal Market Commissioner Frits Bolkestein said that there is ‘an urgent need for Community action to promote recognition of professional qualifications across borders.’ This is a sentiment with which this author wholeheartedly agrees. Vested interests in the British medical profession have to appreciate that the legitimate need to maintain standards cannot be used as a convenient cover for frustrating the legal rights of European doctors. Moreover, given the announcement by the Secretary of State for Health on 7 November 2001 that the NHS needs to recruit 1000 foreign doctors within four years, this is an issue that is not going to go away.

Stephen Whale
21 May 2002


The author was called to the Bar by Gray’s Inn in 1999. He advised on European Community law and human rights law at Advice on Individual Rights in Europe (AIRE Centre) between 1999 and 2001, and is a tenant at 4-5 Gray’s Inn Square. The author is grateful to Timothy Straker Q.C. and Dr Christopher Whale M.R.C.P. for their helpful comments on reading the draft of this article, but adds that any errors in the final version are attributable to the writer alone.

This is an updated extract of the full article published in the Medico-Legal Journal (2002) Vol. 70 Part 2, 80-86. The author is grateful to the Medico-Legal Society (http://www.medico-legalsociety.org.uk) for their kindness in granting permission for the publication of this extract.

 

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