Khashaba v Medical Council of Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Malley |
| Judgment Date | 07 March 2016 |
| Neutral Citation | [2016] IESC 10 |
| Docket Number | [Appeal No. 092/2009] |
| Court | Supreme Court |
| Date | 07 March 2016 |
[2016] IESC 10
THE SUPREME COURT
O'Malley J.
[Appeal No. 092/2009]
O'Malley J.
Denham C.J.
Clarke J.
Medical practitioner – Registration – Judicial review – Appellant seeking judicial review – Whether appellant is entitled to registration on the basis that he is the holder of a qualification from another member state of the EU
Facts: The appellant, Dr Khashaba, is a surgeon from the UK. In March 2003, a certificate was issued to the appellant under the provisions of the Medical Act 1937 (Cap 204) of Montserrat, confirming that he had been duly registered and was entitled to practice as a medical practitioner and a Trauma and Orthopaedic Specialist in the Colony of Montserrat. In June 2003, a certificate was issued to the appellant by the Swedish National Board of Health and Welfare (the Socialstyrelsen). The certificate was a Bevis om Specialistkompetens (the Bevis) that certified that the appellant had been granted the qualification of specialist in orthopaedics in Sweden. He applied to the respondent, the Medical Council of Ireland, for registration as a specialist on the basis of the Bevis. The Socialstyrelsen, in November 2003, informed the respondent that it had decided to strike the appellant from its specialist register, on foot of a request for reconsideration from the UK General Medical Council. When the respondent brought to his attention the fact that the Bevis had been withdrawn, the appellant said that he had a valid registration as a specialist in Montserrat. When the respondent decided that the application could not proceed as a claim for recognition (that is, an application under s. 31(1)(c) of the Medical Practitioners Act 1978), and requested evidence for the assessment process required for s. 31(1)(d), the appellant did not demur and provided such evidence as he thought relevant. This process involved his consent to an assessment by the Irish Surgical Postgraduate Training Committee (the ISPTC) of his training and experience. When the application was refused, on the recommendation of the ISPTC to the effect that his training and experience were not sufficient to merit specialist registration, the appellant appealed the refusal. He also instituted judicial review proceedings. The alternative claims made in those proceedings were: 1) that he had a valid registration in Montserrat that was entitled to recognition under s. 31(1)(c); and 2) that the assessment process under s. 31(1)(d) had been carried out improperly by reason of the involvement of the RCSI/ISPTC. The case made on appeal to the Supreme Court from the January 2009 High Court judgment was that the appellant had, as of the date of his application to the respondent, a certificate issued by the competent authority of Sweden; that the respondent had at that stage a purely administrative rather than decision–making function; that the respondent was not entitled to make enquiries about the certificate in the absence of justified doubts; that the respondent had unilaterally decided to consider his application as if it had been made under s. 31(1)(d); that the internal appeal was an unlawful process having no basis in statute; that the holding of the internal appeal prejudiced the appellant in that it (a) delayed his judicial review and (b) focused his mind on his Montserrat certificate to the exclusion of the importance of the Swedish certificate; and that the respondent was guilty of unreasonable and unlawful delay in making its decision.
Held by O?Malley J that the appellant?s case was put forward without regard to the rule of judicial review procedures that leave must be sought in relation to specific reliefs aimed at specific decisions, on specific grounds, referring to Keegan v Garda Síochána Ombudsman Commission [2012] 2 IR 570. O?Malley J also held that the case was put forward without regard to the principles applicable to the appellate jurisdiction of the Supreme Court, referring to Lough Swilly Shellfish Growers Co–Operative Society Ltd v Bradley [2013] 1 IR 227. O?Malley J noted that none of the claims made were pleaded, or were dealt with on affidavit, or were referred to in submissions, before the High Court; they were not determined by the High Court judge and did not feature in the grounds of appeal.
O?Malley J held that since the appellant had not addressed any argument to the primary rulings made by the trial judge, and since there was no error apparent on the face of the judgment, she would dismiss the appeal.
Appeal dismissed.
The appellant is a surgeon from the United Kingdom who seeks judicial review relief in respect of the refusal of the respondent to enter him on its register of medical specialists. In his judicial review proceedings he has maintained that he is entitled to be registered on the basis that he is the holder of a qualification from another member state of the EU which should, as a matter of law, be automatically recognised in this jurisdiction under the EU and domestic provisions for mutual recognition of formal qualifications. At various times he has relied upon a certificate given to him by the competent authority in Sweden (which has been withdrawn) and on his registration as a specialist in Montserrat. He also claims entitlement to registration on the basis of his own experience and training.
At the material times the relevant legislative provisions were set out in the Medical Practitioners Act, 1978 and in Council Directive 93/16/EEC (both of which have since been amended). The Directive was issued in fulfilment of the Treaty obligation in relation to mutual recognition of formal qualifications.
The establishment of a Register of Medical Specialists (?the specialist register?) is provided for in s. 30 of the Act. The categories of persons entitled to be registered in that register are set out in s.31 (1) as follows:
(a) every registered medical practitioner who, prior to the establishment of that register, has, in the opinion of the Council, completed his specialist training in a specialty recognised by the Council pursuant to section 38 (1) of this Act,
(b) every registered medical practitioner who following the establishment of that register, is granted evidence of satisfactory completion of specialist training by a body recognised by the Council pursuant to section 38 (3) of this Act,
(c) every national of a Member State who possesses a diploma, certificate or other evidence of formal qualification in specialised medicine recognised by the Council and awarded by a competent body or authority designated for that purpose by a Member State, pursuant to any Directive adopted by the Council of the European Communities, and
(d) any person who satisfies the Council that he has completed a programme of training in specialised medicine of a standard considered by the Council to be adequate.
In Ireland, the ?competent authority? is the respondent.
Section 38(3) of the Act provides that the Council shall from time to time determine, in relation to each speciality recognised by it, the body or bodies which are to be recognised in the State for the purpose of granting evidence of satisfactory completion of specialist training.
The directive is intended to promote freedom of establishment to appropriately qualified specialists moving from one member state to another. A medical practitioner who is registered by a competent authority as a specialist in one member state may apply for such registration in another.
Article 4 requires member states to recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine listed in Article 5, in accordance with minimum standards set out elsewhere in the Directive. Orthopaedic surgery is included in Article 5.
The Directive provides for the nomination of a competent national authority responsible for awarding evidence of qualifications. The Medical Council is the competent authority in this country.
Article 22 provides that if it has ? justified doubts?, the host State may require confirmation of the authenticity of a qualification from the competent authority of the other member state concerned, and may require confirmation that the applicant has fulfilled the relevant training requirements.
The appellant is a citizen of the United Kingdom. He is a surgeon, who was educated and trained in England. His qualifications from the United Kingdom are a medical degree from the University of London, a certificate of full registration by the General Medical Council (?the GMC?) and a Fellowship of the Royal College of Physicians and Surgeons in Glasgow. He has been an NHS consultant in the UK and has also worked in a number of other countries.
On the 12th March, 2003, a certificate was issued to the appellant under the provisions of the Medical Act 1937 (Cap 204) of Montserrat, confirming that he had been duly registered and was entitled to practice as a medical practitioner and a Trauma and Orthopaedic Specialist in the Colony of Montserrat.
On the 6th June, 2003, a certificate was issued to the appellant by the Swedish National Board of Health and Welfare (?the Socialstyrelsen?). The certificate was a ?Bevis om Specialistkompetens? (?the Bevis? or ?the Swedish certificate?) that certified that the appellant had been granted the qualification of specialist in orthopaedics in Sweden.
On the 17th September, 2003, the respondent entered the appellant on the general register of medical practitioners. A few days later, by letter dated the 26th September, 2003, he applied to have his name entered in the surgical division of the specialist register....
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