THE SUPREME COURT
[Appeal No. 092/2009]
Denham C.J.
Clarke J.
O’Malley J.
AHMED KHASHABA
APPELLANT
AND
THE MEDICAL COUNCIL OF IRELAND
RESPONDENT
Judgment of Ms. Justice O’Malley delivered the 7th day of March, 2016
Introduction
1. 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 At various times he has relied upon a certificate given to him by the competent authority in Sweden (which has been withdrawn) and on his registration as a specialist in Montserrat.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.
2. 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 Medical Practitioners Act 1978
3. 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.
4. In Ireland, the “competent authority” is the respondent.
5. 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.
Council Directive 93/16/EEC as amended
6. 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.
7. 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.
8. 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.
9. 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.
Background facts
10. 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.
11. 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.
12. 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.
13. 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. This application was made, without reference to the Montserrat document, on the basis that he was the holder of a relevant certificate, the Bevis, issued in Sweden.
14. On the 13th November, 2003, the respondent wrote to the appellant acknowledging that it had received the application on 1st October, 2003. The appellant was informed that verification of his specialist certificate was being sought from the Socialstyrelsen, “in accordance with standard procedure”. The request made sought confirmation that the certificate was a Bevis within the meaning of Article 5 of Council Directive 93/16/ EEC, that it was issued by the Socialstyrelsen and that the applicant’s training in trauma and orthopaedic surgery met the requirements of the Directive.
15. The Socialstyrelsen replied on the 19th November, 2003, informing the respondent that it had decided on the 30th September, 2003, to strike the appellant from its specialist register, on foot of a request for reconsideration from the UK General Medical Council. It was stated that the decision “was based on the fact that Khashaba had misled us regarding his specialist qualifications”, and that he had been informed of the decision on the 30th September, 2003.
16. The respondent sent a copy of this letter to the appellant on the 1st December, 2003, inviting his response. On the 4th December, 2003, the appellant replied. He stated that the Swedish authority had been misled by the GMC and the STA (the Specialist Training Authority - the competent authority for the United Kingdom) and that he would soon be getting his Swedish qualification back. He enclosed copies of correspondence between the Swedish authority and the GMC.
17. It appears from the correspondence that the GMC had contacted the Socialstyrelsen, making inquiries as to the basis for the issue of the Bevis and whether it was on foot of the certificate of registration in Montserrat. It was noted that the appellant did not hold a Certificate of Completion of Specialist Training (the title of certificates issued by the STA) or, in the opinion of the GMC, an equivalent qualification entitling him to recognition as a specialist under the Directive. It was stated that Montserrat was not legally part of the United Kingdom and did not organise or run any relevant structured training programme recognised by the STA.
18. The Socialstyrelsen had at this time replied to the GMC that, after checking the reference to Montserrat in the Treaty, it had become convinced that the Fellowship held by the appellant must mean that the minimum requirements of the Directive had been met. It said that it might have been more “generous and credulous” than it should have been, but that the appellant had not misled it and it was therefore not possible to withdraw the specialist qualification. It was of the view that the qualification granted by it was not binding on other member states in any event, since the appellant had not undertaken any training in Sweden.
19. It is not entirely clear why the Socialstyrelsen ultimately decided to alter this stance and to remove the appellant from its specialist register on the basis that it had been misled. However, the appellant’s letter of appeal against the decision to so remove him stressed that his position was that he had a valid specialist qualification from Montserrat.
20. On the 9th June, 2004, the respondent informed the appellant that in accordance with Article 8 of the Directive it was seeking detailed information from the registrar in Montserrat as to his training there, so that it could establish whether his training fulfilled the conditions of training for trauma and orthopaedic surgery. The letter referred to Article 8(3) of the Directive as requiring the respondent to assess the content and duration of his training based on his “diplomas, certificates and other evidence of formal qualifications” as well as his professional experience, additional training and continuing medical education. He was asked to provide whatever information he considered relevant to these matters. He was also informed that the respondent would, pursuant to s. 37 of the Act, be asking for the opinion of the Irish Surgical Post-Graduate Training Committee (which is based in the Royal College of Surgeons in Ireland) as to whether he met the requirements for the granting of specialist registration.
21. The reason for writing this letter is explained on affidavit as being that the application based on the Swedish certificate could not proceed, since that certificate had been withdrawn. Rather than simply reject the application, however, the respondent had decided to consider the appellant’s case on the basis of the Montserrat registration and the training and experience he had obtained there or elsewhere. Although not expressly referred to either in the letter or on affidavit, this is obviously a reference to the criteria under paragraph (d) of s. 31(1).
22. The applicant did not object to the proposed course of action and on the 17th June, 2004, he forwarded the respondent a copy of his curriculum vitae. On the 7th July, 2004, he submitted a copy of the original application form (dated the 26th September, 2003) with some amendments. This time he ticked the relevant box on the form to authorise a request to the Irish Surgical Postgraduate Training Committee (“the ISPTC”) for evidence of satisfactory completion of specialist training.
23. On the 16th August, 2004, the secretary of the ISPTC wrote to the respondent stating that the appellant’s training did not suffice for inclusion in the specialist register. The reason given was that his training was neither similar to, nor equivalent in duration or quality to, that which would be obtained in structured higher surgical training. He therefore did not meet the criteria for inclusion. The recommendation made was for two further years of training.
24. Having been notified of the Committee’s view, the applicant replied that he disagreed with the assessment. His experience in the UK had, he said, been sufficient to satisfy the British Colony of Montserrat, which had awarded him a specialist certificate. He said that he was being victimised by the GMC and the STA.
25. On the 25th November, 2004, the respondent decided to refuse the applicant’s application for entry on the specialist register. It was explained that the reason for this was that the Registration Committee had decided to accept the advice of the recognised body. The appellant was notified on the 30th November, 2004.
26. By letter dated the 2nd December, 2004, the appellant notified the respondent that he wished to appeal the decision. He referred to the Montserrat certificate as having been issued by the competent authority of an EU member state territory, and therefore automatically and legally binding on other member states. It should have been recognised as such without any discussion with the RCSI.
27. On the 13th December, 2004, the appellant, at that stage representing himself, sought and was granted leave to apply for judicial review. The primary relief sought was
“Prerogative order of mandamus commanding the Medical Council of Ireland to enter me, a European citizen with a valid European Territory Specialist Title/Qualification onto the Register of Medical Specialists and hence the legal right to use my title of Specialist Orthopaedic and Trauma Surgeon as required by Directive 93/16/EEC.”
28. In the statement of grounds he said that his certificate had been issued by the registrar of the Supreme Court of Montserrat; that the registrar was the competent authority under Montserrat statute; and that he had satisfied the registrar prior to the issue of the certificate that he had completed his specialist training in accordance with Articles 24, 25, 26 and 29 of the Directive.
29. He relied upon Article 299(4) of the Treaty, under which the provisions of the Treaty apply to the European territories for whose external relations a member state is responsible, and claimed that, under the Medical Practitioners Act and the Directive, his certificate was automatically binding on other member states of the EU. The respondent should not have consulted the RCSI since this amounted to disregarding or doubting the credibility of the Montserrat competent authority.
30. It is important to note that the statement of grounds makes no reference to the Swedish certificate.
31. On the 2nd March, 2005, the respondent received a faxed statement from the Chief Medical Officer of the Ministry of Health in Montserrat. He explained that Montserrat had no independent credentialing status and no specialist register or equivalent. Any registered practitioner can practise there, in any area of medicine or surgery. He had put the words “Trauma and Orthopaedic Specialist” on the appellant’s registration because the appellant had asked him to. The Chief Medical Officer subsequently swore an affidavit to the same effect.
32. A statement of opposition lodged on the 7th March, 2005, for the most part simply traverses all of the appellant’s claims. There is a specific plea that Montserrat is not a territory within the meaning of Article 299(4) but is an Overseas Territory associated with the member states of the EU under the provisions of Part 4 of the Treaty. It is denied that the Directive applies to the British colonies.
33. At paragraph 19 it is pleaded that the respondent had serious doubts about the authenticity of the applicant’s certificate, and whether or not it complied with the applicable rules. It had accordingly sought verification.
34. In June, 2005 the judicial review was struck out. This may have been accidental - it appears to have been agreed between the parties that it should be put on hold pending the outcome of the internal appeal, without prejudice to the right of the appellant to proceed with the review proceedings if necessary.
35. Meanwhile the appeal against the decision of the Registration Committee proceeded. The appellant was legally represented at this stage. The hearing took place on the 13th September, 2005. The appeal board recommended a refusal of entry on the specialist register at that time. It was further recommended that the appellant obtain specialist registration in the United Kingdom or complete two further years training in Ireland. It was noted that he had not pursued any CME/CPD during the 8 months prior to the appeal hearing when he was not practising medicine. The recommendation was accepted by the Council on the 15th December, 2005.
36. The judicial review proceedings were re-entered in June 2006, despite objection being made by the respondent on grounds of delay, and the case ultimately came on for hearing in October 2008. At no stage was any application made for leave to amend the pleadings or to argue additional grounds. No further evidence was put before the Court relating to the issues dealt with in the internal appeal.
The judgment in the High Court
37. On the 20th January, 2009, McMahon J. delivered a written judgment refusing the reliefs sought by the applicant.
38. It is clear from the judgment that the case proceeded on the basis of the appellant’s claim that he was entitled to automatic registration because of his registration in Montserrat. McMahon J. said that the central issues were, firstly, whether a certificate such as the applicant had from the overseas territory of Montserrat entitled him to be registered as a specialist in Ireland; and, secondly, whether the appellant had other rights of registration in Ireland as a national of a member state with medical qualifications in the United Kingdom.
39. He said that it was a fundamental plank of the appellant’s case that the right of establishment guaranteed under the Treaty of Rome extended to overseas countries and territories (“OCTs”), and that once he had an equivalent qualification from an OCT the Medical Council was obliged to place him on the register. It had been argued that the respondent had no right to look behind the certificate, and no right to ask a third party such as the RCSI to examine the adequacy of his qualification.
40. McMahon J. held that the relevant Treaty provisions applied only to member states, and that Montserrat, although closely associated with the Community, was not part of it as such. Council Decision 2001/822/EC made specific provision for recognition of professional qualifications from OCTs. The Directive in issue applied only to evidence of qualifications awarded by member states. The Montserrat certificate was not issued by a member state and was not issued by a “competent authority” for the United Kingdom. On the evidence, the appellant had not received specialist training in Montserrat. It had no specialist register, no system for accreditation of specialists and no training programmes for specialists in any discipline. The words added to the registration at the request of the appellant were not intended as proof of any matter.
41. On the second aspect of the appellant’s case, McMahon J. noted that the respondent was objecting to matters being canvassed that had not been pleaded. Specifically, there was an issue about argument sought to be made that the respondent was not entitled to delegate a function to the Royal College of Surgeons (in asking it to examine the appellant’s training) and that the RCSI had given inadequate reasons for its recommendation. Counsel for the appellant conceded these two matters at the hearing. McMahon J. stated in the judgment that if this concession had not been made he would not, in any event, have allowed these arguments to be made. A good deal of latitude had been allowed to the appellant thus far, on the basis that he had drafted the pleadings without legal advice, but it would be unfair to the respondent to indulge him further.
42. On the issue of the appellant’s right of establishment, McMahon J. followed Vlassopoulou v. Ministerium für Justiz [1991] ECR I-2357 and Hocsman v. Ministre de l’Emploi et de la Solidarité [2000] ECR I-6623 in ruling that the respondent was entitled to assess the appellant’s qualifications and training. For that purpose it was entitled to take advice from the Irish Surgical Postgraduate Training Committee. The reasons given for that body’s recommendation, and the subsequent decision of the respondent, were brief but clear. The appellant had not raised an issue about the reasons at the internal appeal, where his training and qualifications were discussed, and did not invoke a statutory right of appeal.
43. The notice of appeal to this Court was lodged on the 13th March, 2009. The grounds of appeal set out in the notice include claims that the learned trial judge erred in holding that the respondent complied with its obligations under EU law in the manner in which it conducted its assessment of the appellant’s qualifications and training; in holding that the reasons given to the applicant were clear and did not require further elaboration, and in holding that the appellant had failed to raise the issue of his qualifications and training at the internal appeal.
44. It was stated that the appellant would seek leave to adduce evidence in relation to the internal appeal - no application to this effect has been brought.
45. The final ground of appeal is stated in the following terms:
“The applicant/appellant is entitled to exercise his right of establishment in accordance with Article 43 to 48. The respondent is required to grant full and fair recognition to the Appellant/Applicant’s specialist qualification obtained in Montserrat in addition to the full extent of his experience and qualifications obtained in the United Kingdom.”
46. There is nothing in the notice of appeal that could be interpreted as including the validity of the Swedish certificate.
Submissions on behalf of the appellant in the appeal
47. The appellant’s written submissions refer to a number of minor factual matters where, it is said, the trial judge fell into error. Nothing appears to turn on these.
48. The appellant submits that, on receipt of his application form and Swedish certificate, the respondent was obliged to register him. It had no decision-making function and no discretion in this regard, but only an administrative role. As of the date upon which he made the application (assuming that date to be the date upon which he posted it) he was the holder of a valid EU certificate issued by the competent authority in Sweden, and entitled to automatic recognition. It was suggested by counsel that he may in fact still be on the Swedish specialist register, there being no evidence that the decision communicated by the letter from the Socialstyrelsen had been put into effect.
49. It is said that the respondent acted unlawfully in deciding to conduct an investigation into the Swedish certificate, and similarly in relation to the Montserrat registration. The argument here, made by reference to Tennah Durez v Conseil National de l’Ordre des Médecins C 110/ 01, is that the Article 22 procedure can be used only in an exceptional situation where there are “justified doubts”, but the respondent in its letter of the 13th November, 2003, told the appellant it was “standard procedure”. The request to the Swedish authorities was therefore ultra vires and the trial judge erred in finding that it was lawful.
50. It is submitted that the 2005 internal appeal was ultra vires and unlawful in that there was no statutory basis for it. Such a power if one existed would have offended the doctrine of nemo judex in causa sua. The appellant says that the holding of the appeal prejudiced him in that it delayed his judicial review. In oral submissions it was suggested that there was further prejudice arising from the fact that the effect of the internal appeal was to cause the appellant to become overly focussed on the Montserrat registration, such that he did not in his pleadings afford sufficient attention to the Swedish certificate.
51. The appellant says that the judgment did not address the “important issue” of the respondent’s unreasonable and unlawful delay in dealing with the application. This delay was extended by the respondent conducting its own unlawful internal appeal.
Submissions on behalf of the respondent
52. The respondent has objected to the introduction of new arguments not made in the High Court.
Discussion and conclusions
53. It is apparent that the appellant’s case has undergone the following transformations over the years:
• The initial application to the respondent for registration as a specialist was made on the basis of the Swedish Bevis.
• 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)), 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 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 (i) that he had a valid registration in Montserrat that was entitled to recognition under s.31(1)(c), and (ii) 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 this Court is 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) focussed 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.
54. Although the Montserrat registration was referred to in the notice of appeal, no argument was made in the written or oral submissions in support of the proposition that the trial judge erred in his ruling on this aspect.
55. The grounds of appeal relating to the internal appeal hearing and the reasons given for its recommendation have been subsumed, in submissions, into the argument that the internal appeal process was unlawful. They were not addressed separately.
56. It appears to me that the case now made has been 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.
57. In Keegan v. Garda Síochána Ombudsman Commission [2012] 2 IR 570, this Court allowed an appeal against a refusal by the High Court to permit the appellant to amend his statement of grounds. In so doing, however, the Court said (per Fennelly J. at p. 581):
“[31] Persons are permitted to seek review of administrative decisions which affect them within prescribed times and on grounds in law which they propose and which the courts grant them leave to argue. The object of the system is to strike a fair balance between the certainty and security of administrative decisions and the rights of persons affected by them who wish to contest them.
[32] The strict imposition of time limits is mitigated by the power of the court to permit an application outside the permitted time, provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced.
[33] Once an applicant has obtained an order granting leave to apply for judicial review, he is confined to the grounds permitted. He may not argue any additional grounds without leave of the court.”
58. The case has also been put forward without regard to the principles applicable to the appellate jurisdiction of this Court. None of the claims now 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. The appellant is seeking to make an entirely new case, and to argue that the trial judge erred in not dealing with that case. As a matter of basic principle, that cannot be done.
59. In Lough Swilly Shellfish Growers Co-Operative Society Ltd. v. Bradley [2013] 1 I.R. 227, O’Donnell J. described the variety of cases in which the issue of leave to argue new grounds may arise in appeals.
“There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. (otherwise C.) v. M.C. [1985] I.R. 697 for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News Ltd. v. Galway County Council (Unreported, Supreme Court, 25th July, 1977)); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced.”
60. The case now made by the appellant lies at the wrong end of this spectrum.
61. Since the appellant had not addressed any argument to the primary rulings made by the trial judge, and since there is no error apparent on the face of the judgment, I would dismiss the appeal.
