The Irish Medical Council cannot inquire into the conduct of a doctor, who has already been struck off the British register for professional misconduct, unless it calls oral evidence from complainants, the High Court decided yesterday.
Dr Sebastian Borges, a consultant gynaecologist and obstetrician and an Irish citizen, is in hiding in Scotland following the decision of the British General Medical Council to strike him off its register for professional misconduct in relation to two female patients.
Dr Borges claimed he, his wife and teenage son were subjected to "enormous intrusions" by the media.
He alleged he and his family were followed, threatened and shouted at in the street by an associate of one of the persons who complained.
He said they had had to sell their home in Wick and move to another area of Scotland where they now enjoyed peace and anonymity.
He has challenged a decision of the Irish Medical Council to conduct an inquiry into the same incidents. Dr Borges is in his mid-50s and said to be in poor health and due to undergo major heart bypass surgery. He qualified in 1974 and has practised in Tralee, Cork and Dublin hospitals in the 1980s.
He was a consultant in Caithness Hospital Scotland from 1994 to 1999 and at the Whittington Hospital, London, from February 2000 to October 2001. He got notice of an inquiry into alleged professional misconduct in November 2001 and was later found guilty.
He has denied any wrongdoing and has appealed to the European Court of Human Rights against the British findings.
Before the complaints to the GMC, there had been complaints to the police. Dr Borges was prosecuted in Scotland in relation to the way he had treated female patients. Following his acquittal, the health authority issued a public statement asking any woman wishing to make complaints against the doctor to come forward. Two woman made complaints.
The doctor had told an earlier hearing in the High Court in Dublin that the Fitness to Practise Committee of the Irish Medical Council in January 2002 proposed to apply for permission not to call witnesses at its inquiry but to use the transcripts of the GMC hearings. He claimed he had a right to confront his accusers.
The Irish Medical Council claimed to have made strenuous efforts to get witnesses to attend from Britain and said it would be greatly hindered if it could not rely on the transcripts as admissible evidence.
The 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 erased from the register in another country, he or she remained free to practise in Ireland. The only way a doctor could be disciplined or erased in Ireland was by holding an inquiry.
Mr Justice Ó Caoimh yesterday 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 facts at issue which were sought to be proved by reference to the transcript evidence were central to the inquiry against the doctor, he said. In light of those facts, the interests of justice were such that the doctor should be afforded an opportunity of confronting his accusers.
He granted a stay to the Medical Council on his decision in the event of an appeal to the Supreme Court.