Supreme Court: requirement for doctors trained outside EU to obtain Irish certificate of eligibility not in breach of EU Directive

The doctor, who has since been successful in obtaining a permanent position in Ireland, argued that the breach arose when his initial applications were unsuccessful due to the HSE’s failure to recognise a certificate of eligibility he had received in the UK – however the Court found that the HSE’s requirement for applicants’ qualifications to be certified as equivalent by the Irish Medical Council was in accordance with the directive.

Background

Dr Syed Hussain, an Irish citizen and a general medical practitioner, qualified as a doctor in 1990 in Pakistan. Initially he practised in Pakistan and in August 1995, he took up a position in Portlaoise General Hospital and subsequently in other hospitals until approximately 2002.

In 2004, he left Ireland for the UK and commenced GP training there.

In 2005, he returned to Ireland to complete his hospital training and in September 2005 he obtained the Joint Committee on Postgraduate Training for General Practice Certificate (JCPTGP Certificate) in the UK.

In January 2006 Dr Hussain applied for two positions in Strokestown, County Roscommon: firstly for a locum GP and then for a permanent GP position.

In January 2006, he was interviewed for the locum position and was subsequently appointed as a locum GP.

In March 2006, he was interviewed for the permanent GP position but despite being the only candidate interviewed, he did not obtain the necessary marks and was therefore not appointed.

In April 2006 – notably after the interview for the permanent position – the Head of Regulation of the Irish Medical Council confirmed his entitlement to apply for entry to the General Medical Services Scheme (GMS Scheme).

In June 2006 Dr Hussain was interviewed again for a permanent GP contract in Strokestown in circumstances where that position had been re-advertised. He was placed third on the panel of interviewees; at that stage two positions were available and thus he was unsuccessful in obtaining the position.

In May 2007 he was elected to the Irish College of General Practitioners, and was subsequently appointed to a permanent GP post in Belmullet, County Mayo.

Complaint

Dr Hussain complained that he was not awarded a contract under the GMS Scheme for the position of principal general practitioner in Strokestown, County Roscommon – he contended that the Health Service Executive did not comply with the requirements of EU Directive 93/16/EEC in relation to the mutual recognition of qualifications.

He also sought that certain questions should be referred to the European Court of Justice for a preliminary ruling.

His claim was dismissed by the High Court, and he appealed that decision to the Supreme Court.

Circular 3/96

Circular 3/96 issued by the Department of Health, set out the criteria for entry to the GMS Scheme.

The Circular provided, inter alia, guidelines for a marking system for interview boards which provided for candidates to be placed in order of merit.

Delivering the judgment of the three-judge Supreme Court, Ms Justice Elizabeth Dunne stated that it was “clear from Circular 3/96… that to be eligible for interview for entry to the GMS Scheme, it was necessary for a doctor who obtained his qualifications, training and experience in a non EU member State to have the Medical Council deem their qualifications training and experience to be at least equivalent to the requirements for doctors who obtained their qualifications from an EU Member State”.

Since it was not until April 2006 that Dr Hussain obtained his Certificate of Eligibility pursuant to Article 35(6) of the Council Directive, he was only eligible to apply for entry to the GMS Scheme from that date forward.

Justice Dunne therefore questioned the basis for which he was even interviewed for a permanent GP position in March 2006, and stated that what “happened at that interview and the marking given to Dr Hussain in respect of his qualifications would therefore appear to be irrelevant”.

Conclusion

At the heart of Dr Hussain’s case was “the status of the JCPTGP certificate and the question as to whether or not it was afforded appropriate recognition by the HSE in the course of the allocation of marks in respect of the qualifications”.

The HSE stated that Article 36(5) allows Member States to grant, in accordance with their Rules and in respect of their own territory, the right to practise under a social security scheme to persons who do not possess diplomas, certificates or other evidence of training in a non-Member State.

Given that eligibility for interview required the Certificate of Eligibility from the Medical Council, which was not issued until April 2006, Justice Dunne was satisfied that Dr Hussain “did not suffer any detriment by virtue of the status of his JCPTGP Certificate”.

Justice Dunne explained that “the JCPTGP Certificate was not a qualification as such, but a certificate issued following an assessment of an individual’s qualifications and certifies that those qualifications are entitled to be treated as equivalent to those required for doctors eligible to be employed in the NHS”.

Reiterating the High Court’s findings in the case, Justice Dunne added: “It is common case that the certificate of equivalent experience related only to NHS in the United Kingdom and did not refer to title 4 of Council Directive 93/16/EEC. However the certificate of eligibility in general medical practice issued by the Medical Council on 26th April, 2006 was issued for the purposes of and in compliance with Article 36(5) of the said Council Directive.”

Finding that there was no failure on the part of the HSE to recognise the qualifications of Dr Hussain, Justice Dunne dismissed the appeal and refused to refer questions to the European Court of Justice.