Keywords

Summary



Keywords

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1. Officials ° Recruitment ° Refusal to recruit on grounds of physical unfitness ° Consideration of present or potential physical and psychological disorders ° Whether permissible

(Staff Regulations, Art. 33; Conditions applicable to other servants, Art. 13)

2. Officials ° Recruitment ° Refusal to recruit on grounds of physical unfitness ° Obligation to state reasons ° Scope ° Medical confidentiality ° Limits

(Staff Regulations, second para. of Art. 25 and Art. 33; Conditions applicable to other servants, Art. 13)

3. Officials ° Recruitment ° Refusal to recruit on grounds of physical unfitness ° Reference to Medical Committee ° Initiative to be taken by the candidate declared unfit ° Production of medical documents ° Production during proceedings before the Court ° Not permissible

(Staff Regulations, second para. of Art. 33)

4. Officials ° Recruitment ° Refusal to recruit on grounds of physical unfitness ° Review by the Court ° Scope

5. Officials ° Recruitment ° Medical examination ° HIV antibody screening test ° Consent of the person concerned required

(Staff Regulations, Art. 33)

Summary

1. The purpose of the medical examination provided for by Article 33 of the Staff Regulations and Article 13 of the Conditions applicable to other servants is to allow the institution concerned to determine whether the candidate' s state of health is such that he is capable of fulfilling all the obligations which he may be required to fulfil by virtue of the nature of his duties. To that end, the medical officer of the institution may base his finding of unfitness not only on the existence of present physical or psychological disorders but also on a medically justified prognosis of potential disorders capable of jeopardizing the normal performance of the duties in question in the foreseeable future.

2. A refusal to recruit a candidate or a member of the temporary staff on grounds of physical unfitness constitutes a decision adversely affecting him within the meaning of Article 25 of the Staff Regulations, which must therefore state the reasons on which it is based. However, that obligation to state reasons must be reconciled with the requirements of medical confidentiality which, save in exceptional circumstances, leave the individual doctor to decide whether to communicate to those whom he is treating or examining the nature of the condition from which they may be suffering. That reconciliation is effected through the ability of the person concerned to request and ensure that the grounds of unfitness are disclosed to a doctor of his choice.

For that purpose, the medical officer of the institution is required to provide, if called on to do so by the candidate, all relevant information concerning the findings of physical unfitness and, more specifically, the results of the medical examinations carried out so that the candidate' s doctor is in a position to give him the necessary information regarding the possibility of challenging the reasons for the refusal to recruit him.

3. It is incumbent on the candidate, if he wishes to challenge the merits of the negative opinion of the medical officer of the institution regarding his recruitment, to ensure that the matter is referred to the Medical Committee provided for in the second paragraph of Article 33 of the Staff Regulations. It is his responsibility to send the opinion of his own doctor to that committee, together with all supporting medical documents, and, if appropriate, to request that his doctor be heard. The purpose of the procedure before the Medical Committee is to facilitate a review of the negative medical opinion of the medical officer by a body provided for by the Staff Regulations, which must give a final opinion as to the physical fitness of the candidate to become an official, having regard to all the documents which, at that time, are contained in the medical file of the person concerned. It is for the Medical Committee to decide whether it is appropriate to have the candidate undergo a further medical examination, and it may prescribe further tests or seek the opinion of specialists.

A candidate is not therefore entitled to challenge the statement of the reasons for the refusal to recruit him by producing medical opinions during proceedings before the Court, when he declined to provide the Medical Committee with any document of that kind and his own doctor did not cooperate with that committee.

4. Whilst the Court, in proceedings against a refusal to recruit on grounds of physical unfitness, may not substitute its own assessment for the medical opinion on specifically medical matters, it must, in carrying out the task specifically assigned to it, verify whether the recruitment procedure followed a lawful course and, more particularly, consider whether the appointing authority' s decision refusing to recruit a candidate is based on a medical opinion which incorporates a statement of reasons establishing a comprehensible link between the medical findings which it contains and the conclusion as to unfitness which it draws.

5. The taking of blood for the purposes of the medical examination provided for in Article 33 of the Staff Regulations in order to investigate the possible presence of HIV antibodies constitutes an affront to the physical integrity of a candidate and can be carried out only with his informed consent.