by Mauro Marin
20 APR –
Dear Director,
the decree of the Minister of Health of 28 September 2020 recognized the medical students admitted to the training course in general medicine to maintain the conventional positions referred to in the ACN for general practitioners in existence at the time of enrollment in the course.
The Lazio TAR section quater with sentence n.350 of 13/01/2022 reaffirmed that, according to the legislation, there is no incompatibility for doctors enrolled in the training course in general medicine to carry out freelance activities of former agents or substitutes Article 37 ACN of general medicine and continuity of care ex-medical guard, also given the state of need due to the risk of inefficiencies deriving from the shortage of doctors, as already stated by the Venice TAR sentence no. 1163/2021, TAR. Naples ordinance n. 473/2021 and TAR Veneto ordinances n. 613, 614 and 617/2020.
In implementation of Directive 86/457 / EEC, Legislative Decree 368/1999 established the three-year training course in general medicine with a commitment of full-time participants divided into at least 4,800 hours, 2/3 of which are aimed at practical training activity, providing in art. 24 an incompatibility with other freelance work activities, referred to in Article 11 of the Ministerial Decree of 7 March 2006.
In reality, the subsequent Directive 93 / I6 / EEC, constituting the Consolidated Text of directives on the subject of medical activity, already provided for specific part-time training in general medicine in article 35, provided that an equivalent quality level is guaranteed. to that of full-time training.
The Lazio Regional Administrative Court stated that from the emergency decrees still in force, DM 28 September 2020, DL135 / 2018 and DL 35/2019, from article 3 of law no. 401/2000 and from article 19 of law 448/2001 it is clear that there is absolute incompatibility between participation in the course and the performance of further work activities carried out in practice without prejudice to the fulfillment of training obligations.
Article 19 of law 448/2001 provides for another derogation from the full-time obligation for students according to art. 24 of Legislative Decree 368/1999, allowing them, in the event of a shortage of doctors in the lists of the night and holiday medical guard and of the tourist medical guard, to replace them with fixed-term positions in agreement with the SSN. The DL 135/2018, converted into law 12/2019, in art. 9, due to the shortage of doctors, made a further exception to the incompatibility allowing the trainee doctors to access general practitioner positions according to the ACN ([email protected]).
The art. 12, paragraph 3, of the Calabria Decree DL 35/2019, converted into law 60/2019 and extended within the terms to 31.12.2022 by art. 1, paragraph 426 of law 178/2020, stated that doctors qualified for professional practice and suitable for the competition for admission to the training course in general medicine, if they have been appointed for at least 24 months, even if not continuous, in medicine general in the 10 years prior to the deadline for submitting the application to participate in the competition for access to the course, access it through a reserved ranking and without a scholarship.
The Venice TAR with sentence no. 1163/2021 has ruled out that the incompatibility of article 11 of the Ministerial Decree of 7 March 2006 can be extended to students admitted pursuant to article 12, paragraph 3, of Legislative Decree 35/2019. Then the art. 2-quinquies of Legislative Decree 18/2020 converted into law 27/2020 established for the duration of the emergency that the students could establish fixed-term contractual relationships with the NHS and that the hours of activities carried out would be counted as practical activities in the mountain. total hours referred to in art. 26, paragraph 1, of Legislative Decree 368/1999.
Finally, with the decree of 28 September 2020, the Ministry of Health established that trainees doctors are allowed to maintain the conventional positions referred to in the ACN for general medicine in existence at the time of enrollment, notwithstanding the provisions of art. 11 of the decree of the Minister of Health of 7 March 2006 for the chronic shortage of family doctors. The hours of activity carried out by the aforementioned doctors are considered as practical activities, pursuant to art. 2-quinquies of decree 18/2020 converted into law 27/2020.
The provisions of the Ministerial Decree of 28 September 2020 for students of the three-year period 2019-2022 have also been extended to doctors in the training courses of the three-year period 2020-2023 and 2021-2024 by the Ministerial Decree of 14.07.2021.
The right of medical students, both full-time and part-time, to adequate remuneration was therefore reaffirmed (Court of Justice, CJEU rulings C-616-16 and C-61716 of 24/01/2018; Directive EU 75/363) by virtue of constitutional principles.
It is no longer excluded that trainee doctors can obtain remuneration through jobs compatible with the fulfillment of training obligations, according to the TAR Rome ordinance no. 391/2021, the TAR. Naples ordinance n. 473/2021, the TAR of Tuscany ordinance n. 453/2021, the Emilia Romagna Regional Administrative Court no. 434/2021, the Campania Regional Administrative Court n. 473/2021 and the Veneto Regional Administrative Court no. 613, 614 and 617/2020.
Mauro Marin
Director of the Pordenone Health District
April 20, 2022
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