Borges v. Fitness to Practice Committee of the Medical Council & Anor

Factual and Procedural Background

The Applicant, a consultant obstetrician and gynaecologist, faced allegations of professional misconduct arising from events in 1996 while he was practising in The United Kingdom. Two former patients (Mrs C and Mrs E) alleged inappropriate sexual touching and misuse of a vaginal transducer. The charges were investigated first by the Professional Conduct Committee of the General Medical Council in The United Kingdom, which—after a fully contested hearing—found serious professional misconduct and directed that the Applicant’s name be erased from the register. An appeal to the Privy Council was dismissed.

Subsequently, the Respondents (the Fitness to Practice Committee of the Medical Council and the Medical Council) initiated an inquiry under Part V of the Medical Practitioners Act 1978. Because Mrs C, Mrs E and one additional witness refused to attend, the Committee ruled that it would rely on the United Kingdom transcripts and decisions, together with evidence from two expert witnesses, and proceed with the Irish inquiry.

The Applicant sought judicial review. The High Court (Judge Caoimh) held that proceeding on transcripts alone—without live testimony of the complainants—would breach fair procedures. The Respondents appealed that ruling to the Supreme Court.

Legal Issues Presented

1. Whether the Fitness to Practice Committee may admit and rely on transcripts and judicial decisions from foreign disciplinary proceedings when the complainants are unwilling to testify in person.
2. Whether proceeding in that manner would deny the Applicant his constitutional right to fair procedures, including the right to cross-examine his accusers.
3. Whether recognised exceptions to the rule against hearsay (necessity and reliability) justify admitting the foreign transcripts in lieu of oral evidence.

Arguments of the Parties

Appellants’ Arguments (Medical Council)

• The Committee would not “rubber-stamp” the United Kingdom findings; it would give them only such weight as deemed appropriate and would also hear two live expert witnesses open to cross-examination.
• The Applicant already cross-examined the complainants in the United Kingdom proceedings; therefore his constitutional right was satisfied.
• Public protection would suffer if the Committee could not act on reliable foreign disciplinary findings simply because witnesses declined to attend.
• The transcripts are admissible under developing common-law and statutory exceptions to the hearsay rule, meeting both necessity (witnesses unavailable) and reliability (evidence given on oath, subject to cross-examination, and affirmed by the Privy Council).
• English authorities (General Medical Council v Spackman; In re A Solicitor) support admitting such material.

Respondent’s Arguments (Applicant)

• Irish jurisprudence (In re Haughey; Kiely v Minister for Social Welfare) requires an oral, confrontational hearing where accusers may be cross-examined before the tribunal deciding misconduct.
• English cases cited by the Appellants conflict with Irish authority demanding a full rehearing (In re M (A Doctor); C.K. v An Bord Altranais).
• Hearsay exceptions based on necessity do not apply; the witnesses are available but unwilling, which is fundamentally different from cases where they are dead, incompetent, or legally unavailable.
• Admitting the transcripts would effectively predetermine factual issues, converting the Irish inquiry into a limited review and undermining statutory safeguards and the High Court’s appellate role.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Keane, delivering a unanimous judgment, reaffirmed that disciplinary inquiries impacting a professional’s livelihood must observe constitutional guarantees of fair procedure. Central to those guarantees is the right to confront and cross-examine accusers, a principle rooted in In re Haughey and reiterated in multiple Irish authorities.

The Court acknowledged that professional bodies may, in appropriate circumstances, admit hearsay or written evidence. However, such flexibility cannot override constitutional imperatives where essential facts are contested and credibility is decisive. Here, the misconduct allegations depend entirely on the testimony of Mrs C and Mrs E. Their refusal to attend—despite the absence of any incapacity—meant the Applicant would face findings that could end his career without the opportunity to test their evidence before the Committee.

Foreign precedents supporting reliance on prior disciplinary findings were rejected. The Court found that Spackman and In re A Solicitor approached the issue as a matter of evidential admissibility, not constitutional fairness. Irish constitutional standards are higher: where witness attendance is feasible, written records cannot substitute for oral examination.

The Appellants’ attempt to invoke the modern necessity/reliability exception to hearsay was also dismissed. “Necessity” requires more than witness unwillingness; it presupposes genuine unavailability (death, incapacity, privilege, etc.). Thus, the proposed reliance on transcripts failed both constitutionally and under common-law evidential principles.

The Court stressed that permitting the inquiry to proceed on transcripts alone would transform it into a constrained review, depriving the Applicant of the full statutory protection intended by Part V of the 1978 Act and limiting the scope of the subsequent High Court confirmation process.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the High Court declaration that proceeding on the basis proposed by the Fitness to Practice Committee would violate the Applicant’s right to fair procedures.

Implications: The decision underscores that Irish professional disciplinary bodies must secure live testimony from key complainants where practicable; unwillingness alone does not justify reliance on foreign transcripts or hearsay. The ruling safeguards constitutional due-process rights and limits the circumstances in which hearsay exceptions may be invoked in regulatory proceedings, but it sets no new substantive precedent beyond reinforcing existing fair-procedure principles.