Khashaba -v- Medical Council, High Court,Judgment was delivered by Mr Justice McMahon on January 20th, 2009.
Judgment
The court declined to require the Medical Council to register as a specialist a doctor who was an EU citizen and was registered as a specialist in Montserrat, but not in any EU state.
Background
Dr Ahmed Khashaba is a British national with an Egyptian background. He qualified as a doctor in England, and most of his medical experience and further qualifications were obtained there. He was registered as a general practitioner in the UK, but not as a consultant, though he practised as a consultant there. It is not necessary to register as a consultant to practise as one in England.
He was at one point registered as a specialist in Sweden, but was removed from that register for reasons not relevant to the case. This registration appeared to be based on his registration as a consultant in Montserrat, an overseas territory of the UK.
In September 2003 he applied to the Medical Council in Ireland to be registered as a consultant in orthopaedics and trauma surgery. After conducting enquiries about the Montserrat registration and his training, the Medical Council refused to register Dr Khashaba, and suggested further training.
He obtained leave to take judicial review proceedings against this decision in December 2004.
He argued that he was entitled to automatic registration based on his Montserrat registration, and under Article 43 of the Treaty of Rome, providing for the free movement of doctors within the EU and the mutual recognition of their qualifications.
He argued that the right of establishment under the Treaty of Rome extended to overseas territories such as Montserrat.
He also argued that the Medical Council should automatically accept the Montserrat registration, and not look behind it.
Decision
“First, it must be clear that Montserrat is not and never was a full member state of the Community,” Mr Justice McMahon said. He pointed out that it was listed in Annex II to the Treaty, which listed those overseas countries and territories which were closely associated with the European Community, and, though constitutionally linked to a member state, were not part of the Community.
While nationals of the overseas countries could have some rights in relation to the EC, these could not be greater than those of member states, he said.
“The certificate which the applicant relies on from Montserrat, registering him as a doctor in specialist medicine there, even at its highest would still have to be subject to the relevant Directives on the registration of doctors under the right of establishment provisions of the Treaty itself, which applies generally to the nationals of member states,” he said.
He pointed out that the directives dealing with qualifications in specialist medicine required every member state to nominate a “competent authority” for the awarding of such qualifications. In relation to specialist qualifications, the competent authority must issue a certificate following appropriate training.
In the UK this was called a Certificate of Completion of Specialist Training (CCST) and in Ireland a Certificate of Specialist Doctor (CSD).
Dr Khashaba’s certificate stated that he was entitled to practise “as a Medical Practitioner and Trauma and Orthopaedic Specialist in the colony of Montserrat”.
Mr Justice McMahon said that the court did not accept this should be automatically accepted for two reasons. First, the Directive relating to the mutual recognition of qualifications only applied to member states, and these did not include Montserrat. Secondly, the Montserrat certificate was not a Certificate of Specialist Training, the required certificate from the relevant member state.
He said it was clear from an affidavit from the chief medical officer of Montserrat that the applicant had not received any specialist training there. It was also clear that there was no specialist register there, and the words “trauma and orthopaedic surgeon” were not intended to be proof of anything, and were added to the certificate at the request of the applicant.
The applicant also referred to the case-law of the European Court of Justice in support of his application. Two cases, the Vassapoulou case and the Hocsman case, dealt with the rights of a lawyer and doctor respectively to practise in other member states. The decisions were that the member state concerned must take into consideration all the diplomas, certificates and other evidence of formal qualifications, and compare them with those required by the state.
The Medical Council did conduct such an assessment here, Mr Justice MacMahon said, and concluded that the applicant required further training. He did not exercise his statutory right to appeal against that decision.
Mr Justice McMahon said that in all these circumstances he was not prepared to grant the applicant any relief.
The full judgment is on www.courts.ie
Colm MacEochaidh BL, instructed by Gerald Lambe and Co, for the applicant; Patrick Leonard BL, instructed by McDowell Purcell Solicitors, for the respondent