Borges -v- Fitness to Practice Committee & ors, [2004] IESC 9 (2004)

Docket Number:128/03
Party Name:Borges, Fitness to Practice Committee & ors
Judge:Keane C.J.

THE SUPREME COURTKeane C.J.Murray J.McGuinness J.Hardiman J.McCracken J.128/03BETWEENSEBASTIAN BORGESAPPLICANT / RESPONDENTANDTHE FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL AND THE MEDICAL COUNCILRESPONDENTS / APPELLANTSJUDGMENT delivered the 29th day of January 2004, by Keane C.J.IntroductionThe applicant / respondent (hereafter "the applicant") qualified as a medical doctor in 1974 and has been, at all material times, a registered medical practitioner in Ireland. He is a consultant obstetrician and gynaecologist and was also a registered medical practitioner in the United Kingdom until the 27th October, 2000 when his name was erased from the register in that jurisdiction in circumstances which will be explained in more detail at a later point. He had been in practice as an obstetrician and gynaecologist from 1994 to 1999 at Caithness Hospital in Scotland and had previously practised in Ireland in Tralee, Cork and the Rotunda Hospital.On the 8th November, 2001, the applicant was given notice by the Registrar of the Medical Council that the Fitness to Practice Committee of that body proposed to hold an inquiry into allegations of professional misconduct against him under the Medical Practitioners Act, 1978 (hereafter "the 1978 Act"). The allegations were set out as follows:"That you, being a registered medical practitioner:(1) On or around 30th August 1996, while in a professional relationship with Mrs C, touched Mrs C's breasts in a manner that was inappropriate and / or indecent and / or(2) On or around 7th August 1996, while in a professional relationship with Mrs E:-(a) prepared a vaginal transducer for use in a sexually inappropriate manner and / or(b) failed to make any record of your consultation with Mrs E. on the said date and / or(3) acted in a manner derogatory to the reputation of the medical profession."Under the heading, "Nature of Evidence", the names of witnesses whom the Registrar intended to request the attendance of at the inquiry for the purpose of giving evidence together with a summary of the nature of their evidence followed. They included Mrs C and Mrs E. A copy of the transcript of proceedings before the Professional Conduct Committee of the General Medical Council in the United Kingdom (hereafter "the P.C.C.") was also attached.The hearing before the Fitness to Practice Committee (hereafter "the Committee") began on the 16th January, 2002. In the interval, the solicitor for the Medical Council had written to the corresponding body in the United Kingdom enquiring whether Mrs C. and Mrs E. would be prepared to come to Dublin and give evidence in respect of their treatment. A similar enquiry was made in respect of the husband of Mrs E. who had also given evidence in the inquiry in the United Kingdom. On the 28th December, 2001, the solicitors for the United Kingdom Medical Council informed the Irish solicitors that the witnesses were not prepared to attend the hearings in Ireland. Counsel for the Medical Council at the opening of the inquiry by the Committee said that, while Mrs C. had consented to her medical records being made available to the Committee, Mrs E. had not. Counsel informed the Committee that the transcript of the hearing before the P.C.C. in the United Kingdom would be put in evidence together with the decision of the P.C.C. and of the Privy Council dismissing the applicant's appeal. The notice of the 8th November, 2001 had also indicated that the registrar would be arranging for the attendance of Dr. Ian Johnston who had given evidence before the P.C.C. and a consultant obstetrician / gynaecologist in relation to matters referred to in a report which it was intended to furnish to the applicant in advance of the inquiry.Having heard submissions from counsel for the Medical Council and for the applicant, the chairman of the Committee said that, while they considered that the inquiry should proceed if possible, they thought that the possibility of hearing the evidence abroad should be investigated. The inquiry was adjourned for some hours in order to enable this to be done, and when it resumed, counsel informed the Committee that the witnesses concerned were still not prepared to come to Ireland, were not willing to be the subject matter of cross-examination by a video link and were not willing to take part in a hearing by the Committee in the United Kingdom. Having heard further submissions, the Committee ruled that it was prepared to admit the evidence consisting of the transcript and decisions of the P.C.C. and Privy Council and would, accordingly, proceed with the inquiry on the 18th February.The proceedings in the United KingdomThe transcript of the hearing before the P.C.C. in London records that it opened on the 23rd October, 2000. The charges set out against the applicant were as follows:"That, being registered under the Medical Act,1. (a) On 22nd November 1992 you examined Mrs A. (b) The purpose of your examination was to perform a 'preoperative' check.(c) You touched Mrs A.'s breasts in a manner that was(i) inappropriate,(ii) indecent,(d) you did not make a record of her examination.2. (a) On 11th November 1994 you were consulted by Mrs B,(b) You gave Mrs B an internal examination,(c) You touched Mrs B's breasts in a manner that was(i) inappropriate,(ii) indecent;(d) You did not make any record of your examination,3. (a) On an unknown date in 1996 you were consulted by Mrs C.(b) You gave Mrs C. an internal examination.(c) You touched Mrs C's breasts in a manner that was (i) inappropriate,(ii) indecent;4. (a) On 7th August 1996 you were consulted by Mrs E.(b) During the course of the consultation you used a vaginal transducer,(c) You prepared the vaginal transducer for use in a sexually inappropriate manner,(d) You did not make any record of the consultation,And that in relation to the facts alleged you have been guilty of serious professional misconduct."At the outset of the hearing, the solicitor appearing on behalf of the applicant said that charge 1 was denied in its entirety. 2(a) and (b) were admitted, but (c) was denied. 3(a) and (b) were admitted, but 3(c) was denied. 4(a), (b) and (d) were admitted but (c) was denied. The solicitor also referred to the fact that earlier allegations against the applicant had been the subject of criminal proceedings which had resulted in the acquittal of the applicant. Following those proceedings, the complaints which were the subject of the inquiry were made.The first allegation was made by a nurse who was employed at the hospital where the applicant was a consultant. The second allegation was by her mother. The third allegation was by a patient aged 73 or 74 years old at the time of the inquiries. The fourth allegation was by a midwife who was also a patient.At the conclusion of the evidence on behalf of the Council, the P.C.C. ruled that there was insufficient evidence in relation to charge 1. The hearing proceeded in relation to charges 2, 3 and 4. At the conclusion of the hearing, the P.C.C. ruled that charge 2(c) had not been proved but that charge (3)(c) and 4(c) had been proved. They further concluded that the applicant had been guilty of serious professional misconduct in relation to the facts proved and that his name should be erased from the register.The charges of which the applicant was found guilty, accordingly, related to Mrs C. and Mrs E. alone. Mrs C's evidence was that, during the course of an examination, the applicant grabbed her breasts from behind in a manner that was inappropriate and indecent and that she reacted by elbowing him in the abdomen. In her evidence, she was unable to give a specific date for the assault but did not retract from what she had said in the course of cross-examination. For his part, the applicant in evidence fully denied her allegations and described the applicant as an old lady whom he treated with the utmost kindness because of her medical condition and her age...

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