Borges v. Fitness to Practice Committee of the Medical Council & Anor [2004] IESC 9 (29 January 2004)

Borges v. Fitness to Practice Committee of the Medical Council & Anor [2004] IESC 9 (29 January 2004)

The Supreme Court held that the Fitness to Practice Committee could not proceed with the inquiry based solely on transcripts and judgments from the UK disciplinary proceedings in the absence of the oral testimony of the complainants and opportunity for cross-examination. To do so would violate the applicant's right to fair procedures and natural justice as guaranteed by the Constitution. The exceptions to the hearsay rule do not apply where witnesses are merely unwilling, rather than unavailable, to testify.

Citation
[2004] IESC 9
Parties
Applicant/respondent: Sebastian Borges; Respondent/appellant: Fitness to Practice Committee of the Medical Council; Respondent/appellant: Medical Council
Jurisdiction
Ireland
Judgment Date
29 January 2004
Procedural Posture
Judicial Review / Appeal From High Court to Supreme Court
Outcome
appeal dismissed
Legal Topics
Fair Procedures, Natural Justice, Hearsay Evidence, Professional Misconduct, Right to Cross Examination
Administrative Law Medical Law Constitutional Law Fair Procedures Natural Justice Hearsay Evidence Professional Misconduct Right to Cross Examination

Case Brief

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Parties

Sebastian Borges

Applicant/respondent

Fitness to Practice Committee of the Medical Council

Respondent/appellant

Medical Council

Respondent/appellant

Procedural Posture

Judicial Review / Appeal From High Court to Supreme Court

Legal Issues

  1. 1 Whether the Fitness to Practice Committee can proceed with an inquiry into allegations of professional misconduct based solely on transcripts and judgments from a foreign disciplinary body, without the oral testimony of the complainants and opportunity for cross-examination.
  2. 2 Whether the admission of such evidence violates the applicant's right to fair procedures and natural justice under the Irish Constitution.

Ratio Decidendi

The Supreme Court held that the Fitness to Practice Committee could not proceed with the inquiry based solely on transcripts and judgments from the UK disciplinary proceedings in the absence of the oral testimony of the complainants and opportunity for cross-examination. To do so would violate the applicant's right to fair procedures and natural justice as guaranteed by the Constitution. The exceptions to the hearsay rule do not apply where witnesses are merely unwilling, rather than unavailable, to testify.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The judgment of the High Court is affirmed, prohibiting the Committee from proceeding with the inquiry on the basis of the UK transcripts and judgments in the absence of oral testimony from the complainants.