Controlling and Coercive Behaviour: Widening the Net
Judgement date: 2 July 2013
High Court concludes that the decision of the General Medical Council to refuse the Claimant’s application to be considered an “exempt person” for the purposes of an application to the General Medical Council (“GMC”) Register was a correct one and did not discriminate on the basis of nationality.
Dr Alacakanat (A), a Turkish doctor, sought permission for judicial review to quash a decision made by the General Medical Council to refuse his application to be considered as an “exempt person” for the purposes of an application to the General Medical Council (“GMC”) Register under section 19 of the Medical Act 1983.
A had qualified as a doctor in Turkey in 1987 and had studied and worked in Turkey since that time, specialising in the paediatric field. In May 2009 he obtained a visa to remain in the UK as a self-employed business person, with leave to remain in that capacity until August 2013. A had been working in the field of private care for disabled children and was considered to be an experienced doctor.
In March 2012 A applied under section 19 of the Medical Act 1983 (“the Act”) to be registered as a fully registered medical practitioner as an “exempt person”. For the purposes of the Act, an “exempt person” who satisfies the Registrar of certain matters is able to be registered as a fully registered practitioner. Section 19(2)(c) of the Act, the part to which A argued applied to him, defined an exempt person as a person who:
(c) is not a national of a relevant European State, but is, by virtue of an enforceable Community right, entitled to be treated, for the purposes of access to and pursuit of the medical profession, no less favourably than a national of a relevant European State.
The GMC refused the Claimant’s application on the basis that A did not qualify as an exempt person due to the fact that there was no agreement between Turkey and the EU that gave Turkish nationals EC rights, and hence he did not benefit from an EC right.
A’s application for judicial review to quash the decision to refuse his application rested on two grounds:
(i) that he is an exempt person and the GMC’s refusal to treat him such is wrongful.
(ii) the GMC is imposing unlawful new restrictions upon the registration of Turkish nationals as medical professionals which contravened parts of the Ankara Agreement (“the Agreement”); an international agreement between various member states of the EU, the Council of the European Community and Turkey. The relevant parts prohibited discrimination on the grounds of nationality and directed parties to refrain from introducing between themselves new restrictions on the freedom of establishment and the freedom to provide services since the Agreement came into effect in 1973.
In relation to the first ground, the Court directed that the relevant articles in the Agreement did not confer upon A an enforceable right to be treated, for the purposes of access to and pursuit of the medical profession, no less favourably than a national of a relevant European state. A therefore could not show that he was an exempt person.
In relation to the second ground, the Court examined the European Court of Justice case of Vlassopoulou v Ministerium fur Justiz, Baden-Wurttemberg  2 CMLR 221, which stated that the host state must assure itself on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. If that comparison reveals that the knowledge and qualification certified by the foreign diploma and those required by the national provisions correspond only partially, then the host state is entitled to require that person to show that he has acquired the knowledge and qualifications which are lacking. The Court in the instant case noted the fact that the Claimant in Vlassopoulou had conceded that if foreign applicants were, in appropriate cases, offered an aptitude test to satisfy the aptitude requirements, that would be compliant with the requirement not to discriminate on the grounds of nationality. The Court therefore concluded that there was no such discrimination. Further, the Court concluded that there was no new restriction on freedom of establishment and freedom to provide services, or if it did so, this was justified on public policy or public health grounds. This was because, if A was right in his argument, an “astonishing” result would arise whereby he would only have to show that he met the requirements for admissions for a doctor that existed in 1973, when the Agreement came into effect, irrespective of advances in medical science. Furthermore, as those requirements were less onerous than those currently in force, that would amount to a Turkish national receiving more favourable treatment than that received by other nationals of other member states.
This case reinforces for medical professionals that requirements conferred upon foreign nationals with regards to aptitude do not constitute discrimination by reference to nationality, but by reference to the type of medical qualification possessed by the Applicant. It is entirely legitimate that a comparison is undertaken between knowledge and qualifications required by national law and the knowledge and qualifications obtained by a person in a foreign state.
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