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Syed hussain v. Health service executive - (06 Apr 2017)

To be eligible for interview, candidate must satisfactorily completed recognised Vocational Training Scheme in General Practice or acquired rights under EU Directive on specific training


Plaintiff/Appellant in present proceedings (Dr. Hussain) complained that, he was not awarded a contract under General Medical Services Scheme (GMS Scheme) for position of principal general practitioner in Strokestown, County Roscommon. His complaint was primarily focused on a contention that, Health Service Executive (HSE) did not comply with requirements of EU Directive 93/16/EEC in relation to mutual recognition of qualifications. He also sought that, certain questions should be referred to European Court of Justice for a preliminary ruling. His claim was dismissed by High Court. Issue is regarding status of JCPTGP certificate and question as to whether or not it was afforded appropriate recognition by HSE in course of allocation of marks in respect of qualifications of Dr. Hussain.

Article 36(5) of Directive 93/16/EEC , allows Member States to grant, in accordance with their Rules and in respect of their own territory, 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. Further, to be eligible for interview all candidates must have satisfactorily completed a recognised vocational training scheme in general practice or have acquired rights under the EU Directive on specified training in general practice.

This Court had the opportunity to look at JCPGTP certificate produced by Dr. Hussain and certificate produced in course of evidence in respect of a third party doctor referred to previously. Two certificates are in identical terms save for addition of reference to Title 4 of Council Directive 93/16/EEC in case of the third party doctor who was a doctor with a qualification from National University of Ireland. In each case, reference is made to fact that, doctors concerned had submitted particulars of their medical experience, had satisfied Joint Committee on Post Graduate Training for General Practice that, they had acquired the necessary medical experience to meet requirements of National Health Service legislation in United Kingdom. Therefore, they were both entitled to practise in United Kingdom’s National Health Service. In each case, reference is made to date on which the relevant doctor completed their training and in case of Dr. Hussain, relevant date is 30th June, 2005 and in relation to third party doctor, relevant training is stated to have been completed on the 6th August, 2002. It is relevant to note again, as Murphy J. had observed, that, parties and their legal representatives were of view that, certificate obtained by Dr. Hussain limited his practice to NHS in United Kingdom. Therefore, JCPTGP Certificate entitled him to practise in territory of the United Kingdom, not in any other Member State.

It is clear from Circular 3/96 and relevant provisions that, to be eligible for interview for entry to 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 requirements for doctors who obtained their qualifications from an EU Member State. Dr. Hussain obtained his Certificate of Eligibility pursuant to Article 35(6) of Council Directive on 26th April 2006. Appellant was only eligible to apply for entry to GMS Scheme from that date forward. It is therefore difficult to understand the basis on which he was, in fact, interviewed for a permanent GP position on 15th March 2006.

On occasion of first interview for a permanent position in March 2006, no matter what occurred in relation to recognition of JCPTGP certificate, Appellant, was simply not eligible for entry to GMS scheme because he did not have Certificate of Eligibility from the Medical Council as required by Circular 3/96. On second occasion that, he was interviewed, he was successful in being placed on the panel but in circumstances where there were two positions available and he was placed third, he simply could not get either of two positions available. Had there been a third position available, counsel on behalf of HSE maintained that, he would have been successful in being appointed to that position.

JCPTGP certificate was treated in exactly same way as third party doctor’s equivalent certificate. Under marking scheme provided and set out in Circular 3/96, no marks are available under scheme in respect of the primary qualification of doctor. Marks are available for additional qualifications such as membership of Irish College of General Practitioners or other colleges of general practice. JCPTGP certificate is not a professional qualification. As appears from its terms, it is a certificate of equivalent experience entitling an individual to practise in National Health Service in United Kingdom. As is clear from evidence given by Dr. Hussain, he subsequently became a member of Irish College of General Practitioners. That is a qualification specifically referred to in Circular which entitled him to an additional 60 marks.

Object of the interview, as was clear from powers given to Member State under Article 36 (5) and to Minister's Circular, was to place candidates in order of merit. Court also observes that, even if Dr. Hussain had obtained 49 for professional qualifications and research in the June interview or, indeed, a full 60 marks for membership or its equivalent of a college of general practitioners, he would still have ranked as third. Court went on to conclude that, interview panel were correct in not awarding a score of 60 as Dr. Hussain was not then a member of Royal College of General Practitioners or its equivalent. Regarding status of JCPTGP certificate which is reflected in HSE’s written submissions in which it was contended that “Due recognition was given to Appellant’s U.K. JCPTGP qualification. Applicant was invited to interview based upon his qualification obtained in United Kingdom as this was a threshold requirement for interview.

It is clear that Dr. Hussain did not suffer any detriment by virtue of status of his JCPTGP Certificate. It was treated in precisely same way as that of third party Irish doctor. There has been no failure on part of HSE to recognise qualifications of Dr. Hussain. JCPTGP Certificate is not a qualification as such. It is a certificate which is 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 NHS. Dr. Hussain failed to secure employment following first two interviews.


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