The Supreme Court has upheld a High Court decision that the Irish Medical Council (IMC) cannot inquire into the conduct of a doctor unless it calls oral evidence from two women in the UK who made complaints against him.
Dr Sebastian Borges has been struck off the UK medical register for professional misconduct regarding the women.
A consultant gynaecologist and obstetrician and an Irish citizen, Dr Borges is believed to be living in Scotland. He qualified in 1974 and practised in Tralee, Cork and Dublin hospitals in the 1980s. He was a consultant in Caithness hospital in Scotland from 1994 to 1999 and at the Whittington Hospital in London from February 2000 to October 2001.
In November 2001, he got notice of an inquiry into alleged professional misconduct and was later found guilty. He has denied any wrongdoing and has appealed to the European Court of Human Rights against the British findings.
In March 2002, Dr Borges secured leave to take High Court judicial review proceedings seeking an order quashing a decision of the Irish Medical Council to hold an inquiry into the same complaints made against him in Britain.
He complained the council's Fitness to Practice Committee had proposed to apply for permission not to call witnesses at its inquiry but to use the transcripts of the UK General Medical Council hearings. He claimed he had a right to confront his accusers. The council said it had made strenuous efforts to get witnesses to attend from the UK and would be greatly hindered if it could not rely on the transcripts as admissible evidence.
The medical council's registrar, Mr Brian V. Lea, told the court that many doctors practising abroad were also registered in Ireland. Where a doctor was disciplined or struck off in another country, they remained completely free to practice here and could only be disciplined or struck off in Ireland by holding an inquiry.
The High Court granted a declaration that the absence of the oral testimony of those persons who were complaining against the doctor would amount to depriving Dr Borges of a fair hearing.
The Supreme Court this week dismissed the IMC's appeal against that judgment.
The Chief Justice, Mr Justice Keane, said it was of critical importance that, if the inquiry was allowed to proceed as proposed, it would be because the complainants had decided not to give evidence in circumstances where it was not suggested there was any difficulty in their doing so. The IMC was therefore seeking to adduce hearsay evidence because the complainants were unwilling to give evidence at the inquiry and could not be compelled to do so. Dr Borges could not be deprived of the right to fair procedures, which necessitated the giving of evidence by his accusers and their being cross-examined.
The desire of the IMC to proceed with an inquiry was perfectly understandable, having regard to the important statutory function entrusted to them of investigating any allegations of professional misconduct against doctors registered here, Mr Justice Keane said. However, that could not relieve either the courts of their obligation to ensure that the right of the doctor concerned to a fair hearing was, so far as practicable, upheld.
