The Supreme Court has dismissed an appeal by the Fitness to Practice Committee and Medical Council over the evidence proposed for an inquiry into allegations against consultant obstetrician and gynaecologist Sebastian Borges.
The court affirmed a High Court judgment that the inquiry could not proceed on the basis of transcripts and decisions from United Kingdom disciplinary proceedings without oral evidence from the complainants, identified in the Irish case as Mrs C and Mrs E. The Supreme Court’s judgment was delivered by Chief Justice Keane on 29 January 2004.
The Committee’s inquiry, under the Medical Practitioners Act 1978, had reached the stage of deciding whether there was a prima facie case to inquire into alleged professional misconduct. The allegations notified to Mr Borges concerned alleged inappropriate or indecent touching of Mrs C in August 1996; preparation of a vaginal transducer for use in a sexually inappropriate manner during Mrs E’s consultation in August 1996; and failure to make a record of that consultation. A further allegation said his conduct was derogatory to the reputation of the medical profession.
The complainants had declined to attend in Ireland, give evidence by video link or take part in a Committee hearing in the United Kingdom. The Committee decided it would admit the transcript and decisions from the United Kingdom proceedings and continue its inquiry. The High Court granted a declaration that the hearing should not proceed on that basis without the complainants’ oral testimony.
In the United Kingdom, a disciplinary committee had found allegations concerning Mrs C and Mrs E proved and concluded that Mr Borges was guilty of serious professional misconduct. His appeal to the Privy Council was dismissed. The Irish Supreme Court noted that he had been represented and had cross-examined witnesses in those proceedings, but said that this did not remove his entitlement to fair procedures in the Irish inquiry.
The Medical Council argued that the Irish Committee could consider the earlier evidence and findings, alongside testimony from other witnesses, and give them whatever weight it considered appropriate. It also relied on exceptions to the hearsay rule. The Supreme Court held that the allegations were serious, depended on the complainants’ evidence, and could affect Mr Borges’s reputation and ability to practise. Because the complainants were unwilling to testify, proceeding on their written evidence would deny him the fair procedure of hearing and cross-examining his accusers.
The court dismissed the appeal and affirmed the High Court judgment. It did not determine the truth of the allegations or the outcome of the Irish professional-conduct inquiry.