Administrative status of a career civil servant who provides services in the General State Administration and, having passed the MIR examination, wishes to carry out the corresponding training programme for a specialist in Health Sciences

Last Updated: May 2026

In the light of the information provided, the two alternatives proposed by the consulting unit should be analysed.

First, the study permit, provided for in article 72 of Decree 315/1964, of February 7, approving the Articulated Law of Civil Servants of the State (hereinafter, Decree 315/1964). This license remains in force, by virtue of the fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), according to which:“Until the Civil Service laws are enacted and the development regulations are in force in each Public Administration, the current regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

This leave may be granted for studies in subjects directly related to the civil service, subject to a favourable report from the corresponding hierarchical superior, and the official shall be entitled to receive the salary and family allowance, as indicated in the aforementioned provision.

In this way, the license is necessarily linked to studies that allow to increase the training related to the area of knowledge and functions that the career officer plays in his job at the time of his application.  

As far as this is concerned, the training in the specialized training areas provided for by Law 44/2003, of 21 November, on the management of the health professions and Royal Decree 183/2008, of 8 February, which determines and classifies the specialties in Health Sciences, is delimited as a training that allows the resident to acquire the professional competences of the specialty he is taking, through a programmed and supervised professional practice aimed at progressively achieving, as he advances in his training process, the knowledge, skills, attitudes and professional responsibility necessary for the autonomous and efficient exercise of the specialty.

Thus, during the period of residence, the link between the health service or the centre and the training specialist is articulated through a special employment relationship of a temporary nature, as stipulated in article 20.3 f) and the first additional provision of the aforementioned Law 44/2003.

In this regard, it should be pointed out that the conclusion of an employment contract responds to a radically different nature to the obtaining of training of civil servants in active service through the study license of article 72 of Decree 315/1964; therefore, the lack of identity of reason in the event of fact precludes the possibility of granting this license to carry out medical residency.

Secondly, the application of voluntary surplus for the provision of services in the public sector.

Based on the above and given that, in general, the occupation of two posts or carrying out activities in the public sector are considered incompatible public activities according to article 1 of Law 53/1984, of 26 December, on incompatibilities of personnel in the service of Public Administrations, it is appropriate to analyze the voluntary surplus for the provision of services in the public sector, for the purpose of the realization of the residence program by the career official.

This surplus is regulated in Article 29.3 of Law 30/1984 on measures for the reform of the public service. Article 15 of the Regulations on Administrative Situations of Civil Servants of the General Administration of the State, approved by Royal Decree 365/1995, of 10 March, provides for the requirements to be eligible for this modality:

“1. Career officials who are in active service in another body or scale of any of the Public Administrations, unless they have obtained the appropriate compatibility, and those who go on to provide services as permanent staff in public sector bodies or entities and are not entitled to remain in situations of active service or special services, shall be declared, on their own initiative or at the request of a party, in the situation regulated in this article. The performance of positions with the character of an interim official or temporary staff will not qualify to move to this administrative situation.

(…).

3. Officials may remain in this situation as long as the service relationship that gave rise to it is maintained. Once the cessation has occurred as a career official or permanent staff, they must apply for re-entry into active service within a maximum period of one month, declaring them, if not, in the situation of voluntary leave due to particular interest.”

According to the literality of the aforementioned article, the declaration of this leave occurs when career officials are either on active service in another body or scale, or when they provide services as permanent staff in the public sector, with the express prohibition of their concession in the case of the Performance of positions in the capacity of an interim officer or temporary staff.

It should be noted that this subparagraph was included by Royal Decree 255/2006, of 3 March, with the aim of contributing to the correct planning and management of the human resources of the Administration, allowing both the coverage of the staffing needs and the reduction of the temporary employment.

Therefore, in the absence of specific regulation, it is considered that it will have to be interpreted “according to the proper sense of his words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those”, in accordance with article 3 of the Civil Code.

Thus, in order to determine whether or not the granting of leave is appropriate in the case in question, the nature of this employment relationship of resident internal doctors must be analyzed.

The first thing we can observe is that the residence for the training of specialists in Health Sciences is integrated into the catalog of special labor relations of article 2.1.j) of the consolidated text of the Law of the Statute of Workers, approved by Royal Legislative Decree 2/2015, of October 23 (hereinafter, TRET). Special relationship through which the link between the training specialist and the health service or the center is established, in accordance with article 20.3 f) of the aforementioned Law 44/2003.

In this regard, the first additional provision of Law 44/2003 contemplates the characteristics and peculiarities of this employment relationship applicable to those who receive training aimed at obtaining a degree of specialist in Health Sciences, as well as in those cases of training in Specific Training Areas, provided that such training is carried out by the system of residence provided for in article 20 of this law, in centres, public or private, accredited to provide such training.

To this end, although the residents are considered temporary staff of the health service or centre in which they receive training and must carry out the professional practice and the assistance and training activities derived from the training programmes, in accordance with their specific working day; It will be a sine qua non condition to overcome the formative system of residence to obtain the corresponding medical specialty.

In this sense, the assumptions of resolution of the contracts when the established evaluations are not exceeded, the procedures for the review of the evaluations granted, the maximum duration of the contracts depending on the duration of each of the corresponding training programs, and the exceptional assumptions for its possible extension when there are cases, not attributable to the interested party, of suspension of the employment relationship, as foreseen in the aforementioned additional provision.

Therefore, the special employment relationship does not constitute a common employment relationship, but, as can be seen from its very nature, it is an instrumental and enabling employment relationship, subject to its own legal regime.

In view of the foregoing, and given the nature and purpose of training, instrumental and enabling the special employment relationship of resident internal physicians, it is considered that it cannot be assimilated, by analogy, to a temporary employment relationship, of those prohibited by the last paragraph of Article 15, since its training and assistance purpose, together with the provision of services, is directed to the acquisition of professional skills, and the subsequent empowerment, for the future exercise of the specialty, and not to the temporary coverage of a job or of certain short-term needs.

By virtue of the foregoing, it may be concluded that article 15 of Royal Decree 365/95 must be interpreted taking into account that this special employment relationship of the in-patient doctors, in terms of its nature and purpose, as well as the meaning of the norm, does not fall within the prohibition resulting from the last paragraph of article 15.1; for the purposes of the declaration of leave for the provision of services in the public sector of the career civil servant.

All this, in order to guarantee the principle of quality of care and permanent improvement of the health benefits of our National Health System and due compliance with the right to health protection provided for in article 45 of Law 14/1986, of April 25, General Health and article 43 of the Spanish Constitution.

This legal basis is considered applicable to career civil servants who are in active service in the General State Administration and formalize this special employment relationship for the realization of any of the Specialized Health Training programs for undergraduate/bachelor/diploma degrees in Medicine, Pharmacy, Nursing and in the field of Psychology, Chemistry, Biology and Physics of the National Health System, convened by the Ministry of Health.

In any case, it must be specified that the professional staff in question may remain in this situation of leave, as long as the special employment relationship of specialized health training that gave rise to it is maintained, so that, once the termination or resolution of said employment relationship occurs, re-entry to active service must be requested within a maximum period of one month, declaring, if not, in the situation of voluntary leave for particular interest, in light of the provisions of article 15.3 of Royal Decree 365/95.

All of the foregoing is without prejudice to recalling that, in accordance with the regime of competences of this Board of Directors, the answers to queries issued by this Directorate General are merely informative and, consequently, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that they may be affected by subsequent legislative modifications or judicial decisions.