Towards Europeanisation through the proportionality test? The impact of free movement law on medical professional discipline

• Author: Barend Leeuwen
• DOI: http://doi.org/10.1111/eulj.12362
• Date: 01 March 2020
• Published date: 01 March 2020

VARIETY

Towards Europeanisation through the

proportionality test? The impact of free

movement law on medical professional discipline

Barend van Leeuwen*

Abstract

Medical doctors can exercise their free movement rights to escape the control of professional regulation

at the national level. This “darker side”of free movement of doctors has received a lot of attention. This

article will show that the free movement provisions play an increasingly important role in medical disci-

plinary cases. The application of free movement law can make a positive contribution to the protection

of patient safety. However, disciplinary tribunals are unfamiliar with the structure of arguments bas ed

on the free movement provisions. While the case law on free movement of patients has encourage d a

process of internationalisation of medical standards, free movement of doctors has not yet led to a

similar process of Europeanisation of medical professional rules. Nevertheless, the proportionality test

requires that disciplinary tribunals engage in a process of comparison between their own rules and the

rules in other Member States.

1|INTRODUCTION

In 2010, it was reported that Dr Daniel Ubani, who had been convicted of gross negligence manslaughter in the

United Kingdom after he had injected a patient with an overdose of a certain drug, was able to continue practising

as a doctor in Germany.

1

In 2013, the German authorities discovered that Dr Ernst Jansen Steur, who had been

labelled “Dr Frankenstein”in the Netherlands, was still practising as a neurologist in Germany despite the fact that

he had relinquished his registration in the Netherlands.

2

Several Dutch patients had brought cases against him after

he had given them false diagnoses. These stories provide extreme examples, but they vividly illustrate some of the

problems caused by free movement of doctors in the EU.

* Assistant Professor in EU Law at Durham University, Durham, UK. I would like to thank Emma Cave, Shaun Pattinson and Robert Schütze for the helpful

discussions. Many thanks to the ELJ reviewers for their constructive comments. I am grateful to Joana Mendes and Harm Schepel for the editorial

support.

1

‘Doctor Daniel Ubani unlawfully killed overdose patient’,TheGuardian, 4 February 2010. Available at https://www.theguardian.com/society/2010/feb/

04/doctor-daniel-ubani-unlawfully-killed-patient (accessed 7 June 2020).

2

‘Prozess gegen niederlandischen Skandal-Arzt Ernst J. beginnt’,DerSpiegel, 3 November 2013. Available at https://www.spiegel.de/panorama/justiz/

prozess-gegen-niederlaendischen-skandal-arzt-ernst-j-beginnt-a-931335.html (accessed 7 June 2020).

Received: 2 October 2019 Revised: 30 May 2020 Accepted: 1 June 2020

DOI: 10.1111/eulj.12362

Eur Law J. 2020;26:61–82. wileyonlinelibrary.com/journal/eulj © 2020 John Wiley & Sons Ltd. 61

Free movement law creates opportunities for both doctors and national healthcare systems. Doctors are able to

work in countries where the working conditions are more favourable and national healthcare systems are able to

attract doctorswith a particular kind of expertise.

3

At the same time, freemovement makes it more difficult to control

the quality of healthcare provided by doctors. Because EU law has harmonised the mutual recognition of professional

qualifications of doctors,

4

national regulators are restricted in their ability to verify the competences of doctors who

are exercising their free movement rights. Incompetent or even dangerous doctors could rely on free movement to

escape the disciplinary rules in their home Member States. This “darker side”

5

of free movement of doctors has

received an increasingamount of attention in the last decade and has led to new ruleson the exchange of information

about disciplinarysanctions between national regulators. From 2016, nationalregulators have to use an EU-wide Alert

System to warn regulatorsin other Member States if the ability of doctorsto practise has been restricted.

6

Medical professional discipline plays an important role in guaranteeing the quality of care provided bydoctors. It

constitutes one of the most important tools to prohibit doctors from practising or to restrict their ability to practise.

As an area of law, it has not received a lot of academic attention from EU lawyers.

7

However, free movement

law has an impact on medical professional discipline at the national level. The aim of this paper is to analyse

the interaction between medical professional discipline and free movement law. It will be argued that the free

movement provisions play an important role in protecting the ability of Member States to guarantee and promote

patient safety in the EU.

A key role in promoting the quality of healthcare is played by the proportionality test. In the absence of

harmonisation or mutual recognition of medical professional standards, the proportionality test requires that

disciplinary tribunals engage in a process of comparison between their national disciplinary rules and the disciplinary

rules or judgments in other Member States. Although there is no mutual recognition in the field of medical

professional discipline, the proportionality test requires that disciplinary tribunals engage with the substance of the

judgments of disciplinary tribunals in other Member States. The result would be more frequent judicial dialogues

between national tribunals in the field of medical professional discipline. An important role in facilitating these

judicial dialogues should be played by the Court of Justice of the European Union (CJEU), which has to provide

more guidance on how medical disciplinary tribunals have to apply the proportionality test.

The structure of this paper is as follows. In section 2, the interaction between free movement law and medical

professional discipline will be introduced. The focus will be on the role of the free movement provisions, the

Professional Qualifications Directive and the CJEU's judgment in Konstantinides.

8

Section 3 will analyse case law

from Germany, the UK and the Netherlands to investigate to what extent and in what type of cases doctors relied

on free movement law. In section 4, the role of the proportionality test in medical disciplinary cases will be discussed

in more detail. Section 5 will make a comparison between free movement of doctors and free movement of

patients to consider whether the case law on free movement of doctors leads to a process of “deprofessionalisation”

of doctors and Europeanisation of medical professional standards. Finally, section 6 will show how the judicial

dialogues required by the proportionality test can lead to a bottom-up process of Europeanisation of medical

professional discipline. These judicial dialogues would encourage Member States to analyse and learn from medical

professional standards in other Member States. This process would improve patient safety and the quality of care

provided by medical doctors across the EU.

3

M. Peeters, M. McKee and S. Merkur, ‘EU Law and Health Professionals’, in E. Mossialos et al. (eds.), Health Systems Governance in Europe: The Role of

European Union Law and Policy (Cambridge University Press, 2010), 589.

4

Directive 2005/36/EC on the recognition of professional qualifications, OJ L255, 30.9.2005, at 22–142.

5

T. Hervey and J. McHale, European Union Health Law (Cambridge University Press, 2015), 130.

6

Article 56a of Directive 2013/55/EU amending Directive 2005/36/EC on the recognition of professional qualifications, OJ L 354, 28.12.2013,

p. 132–170.

7

But see Hervey and McHale, above, n. 5, 148–150, and Peeters et al., above, n. 3, 619–620. For an earlier perspective, see H. Roscam Abbing, ‘The right

of the patient to quality of medical practice and the position of migrant doctors within the EU’(1997) 4 European Journal of Health Law, 347.

8

Case C-475/11, Kostas Konstantinides, ECLI:EU:C:2013:542.

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