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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Borges v. Fitness to Practice Committee of the Medical Council & Anor  IESC 9 (29 January 2004)
Cite as:  2 ILRM 81,  IESC 9,  1 IR 103
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Borges v. Fitness to Practice Committee of the Medical Council & Anor  IESC 9 (29 January 2004)
APPLICANT / RESPONDENT
RESPONDENTS / APPELLANTS
JUDGMENT delivered the 29th day of January 2004, by Keane C.J. [Nem Diss]
The 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 Kingdom
The 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
(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
(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
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.
The complaint by Mrs E. was in relation to the use by the applicant of a vaginal transducer. Mrs E. said that the examination had taken place with no one else present, that no adequate explanation had been given to her as to the nature of the examination, that it had been carried out by the applicant in a sexually suggestive manner and that, while preparing the vaginal transducer for use, the applicant remained silent and maintained eye contact with Mrs E., causing her anxiety and distress. The applicant, in his evidence, while accepting that there was no one else present and that he had kept no notes of the examination, maintained that he carried out the examination in a normal and appropriate fashion.
There followed an appeal by the applicant to the Privy Council, which upheld the findings of the P.C.C. Giving the advice of the Privy Council, Lord Cooke of Thorndon, having said that the Council agreed with the findings of fact by the P.C.C., summed up their conclusions as follows:
"From one point of view these two incidents in August 1996 may be described as relatively minor. Taken together, however, they show a readiness on the part of the appellant to exploit female patients for some form of sexual adventurism. In the view of the Board, again in agreement with [the P.C.C.], they constitute serious professional misconduct for which erasure of the appellant's name from the register was appropriate".
The High Court hearing
On the 11th March, 2002 the applicant was given leave by the High Court to institute the present proceedings by way of judicial review claiming:
"(i) An order of certiorari quashing the ruling of the Committee to proceed with the inquiry and admit as evidence the transcript of the proceedings in the United Kingdom and the judgment of the Privy Council;
(ii) A declaration that the ruling was ultra vires, void and of no effect and
(iii) An order restraining the Committee from proceeding with the inquiry or purporting to admit the transcript or judgment into evidence."
A statement of opposition having being filed on behalf of the respondents, the proceedings came on for hearing before Ó Caoimh J. who, in a reserved judgment, concluded that the proposed hearing should not be allowed to proceed on the basis of the admission in evidence of the transcripts in the absence of the oral testimony of Mrs "C" and Mrs "E" and that the applicant was entitled to a declaration to that effect. The Committee and the Council have now appealed to this Court from that judgment.
Submissions of the Parties
It had been submitted in the High Court that the granting of relief by way of judicial review at this stage of the proceedings under the 1978 Act was premature since the hearing before the Fitness to Practice Committee had still to take place. Even when that hearing had concluded, it would still be necessary, in the event of the Committee making a finding of professional misconduct against the applicant, for the Council to determine what penalty should be imposed and, in the event of the Council determining that the applicant's name should be erased from the register either permanently or for a specified time, that decision would be of no effect unless and until it was confirmed by the High Court. In such circumstances, it was urged, proceedings by way of judicial review were premature.
That submission was rejected by the learned trial judge and, while it was not abandoned in this Court, I am satisfied that he was correct in so holding. While certiorari may not be an appropriate remedy at this stage of the proceedings before the Fitness to Practice Committee, the fact remains that the Committee have decided that the hearing should proceed in circumstances where they have been informed that the complainants will not be giving evidence and that they should admit in evidence the transcripts and the judgment of the Privy Council. Either the Committee's decision constitutes a denial of fair procedures to which the applicant is entitled or it does not. If it does, then it would seem wrong that the applicant should be subjected to the anxiety and expense of a hearing which, on that hypothesis, does not respect his right to a fair hearing. It seems to me that the modern judicial review process should be sufficiently flexible to allow for the granting of the appropriate declaratory relief in such circumstances.
On behalf of the appellants, Mr. Eoin McCullagh S.C. submitted that it was an important feature of the procedures being adopted that the Committee were not being asked simply to rubberstamp the findings of the inquiry in the United Kingdom and the judgment of the Privy Council. The Committee were being asked to give such weight as they considered appropriate to the transcript of the proceedings, the decision of the P.C.C. and the upholding of the decision by the Privy Council. In addition, they would have the benefit of a witness from the English General Medical Council and an independent consultant obstetrician. The applicant would be entitled to cross-examine those witnesses, to call witnesses in his defence, including expert witnesses, and, if he elected so to do, to give evidence himself.
Mr. McCullagh submitted that there would be a remarkable lacuna in the procedures intended to protect the public who place considerable trust in their medical advisers if, as found in the High Court, the body established by the 1978 Act to enquire into and decide upon allegations of professional misconduct should be unable even to embark on an inquiry in circumstances such as had arisen in this case.
Mr. McCullagh further submitted that the acknowledged constitutional right of the applicant to cross-examine the complainants had not been violated, since he had enjoyed, and had availed of, that right in the proceedings in the United Kingdom. The fact that a person had a constitutional right to cross-examine those who are accusing him of particular misconduct did not preclude a body such as the Committee from conducting an inquiry pursuant to the 1978 Act into an allegation of professional misconduct based on the findings of a competent disciplinary body in another jurisdiction where the oral evidence of the complainants was not available. He cited in support of this submission the decisions of the House of Lords in General Medical Council –v- Spackman  AC 627 and of the English Court of Appeal In re A Solicitor  2 all AR 335.
Mr. McCullagh further submitted that the Committee, not being in the same position as a court, was entitled to admit evidence which might otherwise be excluded under the application of the rule against hearsay. He said that the evidence of the complainants, although given before another tribunal, was properly admissible under the exceptions in principle to the rule against hearsay, particularly as they had been developed in recent case law in other jurisdictions. The trial judge had erred in not considering whether those statements should be admitted by invoking the test of necessity, although it was clear that the Council could not compel the attendance of the witnesses concerned. He cited in this context the decisions of the Canadian Supreme Court in R. –v- Khan  2 SCR 531 and R. –v- Hawkins  3 SCR 1043, the dissenting speeches of Lord Donovan and Lord Pearce in Myers –v- D.P.P.  AC 1001 and the decisions of this court in Southern Health Board –v- C.H.  1 IR 219 and Eastern Health Board –v- M.K.  2 IR 99. Those cases demonstrated that hearsay evidence of the nature proposed to be adduced in the present case was admissible provided it met the separate requirements of "necessity" and "reliability". In the present case, both requirements were met, the reliability requirement being satisfied because the statements had been made in circumstances which provided sufficient guarantees of their trustworthiness. He submitted that it was noteworthy, in this context, that Irish criminal law envisaged evidence being given at a trial in the form of a transcript under s. 4(f) of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1990 which provided for the taking of depositions in the District Court at any time after the accused had been sent forward for trial.
On behalf of the applicant, Mr. Nicholas Butler S.C. submitted that the English decisions in Spackman –v- General Medical Council and In re. A Solicitor should not be followed in this jurisdiction, being inconsistent with the approach adopted by this court in In re. M. (A doctor)  IR 479 and C.K. –v- An Bord Altranais  IR 396, where it had been made clear that, in cases such as the present, where there was an appeal to the High Court, a full rehearing was required so that that court could reach its own conclusions as to the truth or falsity of the evidence. While it was accepted that a tribunal such as the Committee was the master of its own procedures, they could not depart from the rules of evidence in a manner which would imperil a fair hearing. He cited in this context the dicta of Henchy J. in Kiely –v- Minister for Social Welfare (No. 2)  IR 276 and 281. Mr. Butler further submitted that for the Committee to adopt the proposed procedure in the present case would be entirely at odds with the right to cross-examine recognised in In re. Haughey  IR 217, Flanagan –v- University College Dublin  IR 724 and Maguire –v- Ardagh  1 IR 385.
Mr. Butler further submitted that the Canadian and other cases relied on by the Council, dealing with the adoption of further exceptions to the rule against hearsay, were not relevant to the present proceedings. In those cases, the witnesses in question were simply unavailable to give evidence, because they were dead or incompetent to give evidence in the particular case. They could not be relied on in a case such as the present where the witnesses were simply unwilling to give evidence. In addition, this, unlike some of the authorities relied on, was not a case in which there was any evidence other than that of the complainants. To permit the Committee in those circumstances to proceed on the basis of the transcripts would have the result, not merely of admitting hearsay evidence in circumstances which came within none of the established exceptions, but of negating the constitutional right of the applicant to cross-examine his accusers.
The inquiry which is the subject of these proceedings is regulated by Part V of the 1978 Act. Section 47 enables the Council or any person to apply to the Committee for an inquiry into the conduct of a registered medical practitioner on the ground of inter alia alleged professional misconduct and entitles the Committee to hold such an inquiry where they are of opinion that there is a prima facie case for holding the inquiry. That is the stage which has been reached in the present case.
Where the result of the inquiry is a finding by the Committee that the practitioner concerned has been guilty of professional misconduct, the Council may decide to erase his or her name from the register or suspend the registration for a specified period. There is then provision for what is in effect an appeal by the person concerned under s. 46(3) to the High Court, but whether or not such an appeal is taken, the decision of the Council cannot take effect unless and until it is confirmed by the High Court. The same procedure is applicable where the decision of the Council is to attach such conditions as it thinks fit to the retention on the register of a person's name. The Council may also, on receipt of the report of the Committee, advise, admonish or censure the practitioner concerned in relation to his or her professional conduct. Where that is the only penalty imposed by the Council, there is no requirement that it be confirmed by the High Court. Under s. 45(4), the practitioner who is the subject of the inquiry must be given notice of the nature of the evidence proposed to be considered at the inquiry and is entitled to be present and to be represented at the hearing.
It is also not in dispute that the practitioner concerned is entitled to have the hearing conducted in accordance with fair procedures and natural justice. That is not to say that a body of this nature may not depart from procedures which would be essential in a court of law, as was made clear by this court in Kiely –v- Minister for Social Welfare  IR 267: in particular, they may act on the basis of unsworn or hearsay evidence. But, as was also made clear in that case, their freedom from the constraints to which courts of law are subject does not permit them to act in a way which is inconsistent with the basic fairness of procedures guaranteed by implication by Article 40.3 of the Constitution.
It is beyond argument that, where a tribunal such as the Committee is inquiring into an allegation of conduct which reflects on a person's good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. That has been the law since the decision of this court in In re. Haughey and the importance of observing that requirement is manifestly all the greater where, as here, the consequence of the tribunal's finding may not simply reflect on his reputation but may also prevent him from practicing as a doctor, either for a specified period or indefinitely.
While it is conceded on behalf of the appellants in the present case that the applicant is entitled to that protection, it is urged that where, as here, the precise allegations have been the subject of an inquiry by a competent disciplinary body in another jurisdiction at which he was professionally represented and could and did avail of his right to cross-examine his accusers, the public interest in insuring that the highest possible standards are maintained in the medical profession would not be upheld, if the appellants were not at least entitled to take into account the evidence heard by and the conclusions of such a body in the inquiry which it is their statutory duty to hold under Part V of the 1978 Act, at least in circumstances where they are unable to procure the attendance of the complainants at the hearing in this jurisdiction. In support of those submissions, they rely on the English decisions in Spackman –v- General Medical Council and In re. A Solicitor.
In the first of those cases, a doctor, who was the co-respondent in a divorce suit, was found by the Divorce Court to have committed adultery with the respondent to whom he stood in a professional relationship. The General Medical Council having given him notice that a meeting would be held to decide whether his name should be removed from the medical register for infamous conduct, the doctor indicated that he wished to call on the issue of adultery evidence which had not been called on the hearing of the petition, although it was then available. The Council declined to hear the fresh evidence, accepted the divorce decree as prima facie proof of adultery and directed that the doctor's name should be erased from the register. The Court of Appeal held that the "due inquiry" which was mandated by the relevant English legislation could not be said to have taken place where the Medical Council had not fully considered any evidence that the doctor wished to offer and that conclusion was unanimously upheld by the House of Lords.
That is not the issue which arises in this case, since it is accepted on behalf of the Council that the applicant is entitled, not merely to give evidence himself, but to put forward whatever evidence he wishes to rely on in response to the case put forward on behalf of the Council. However, the decision clearly proceeded on the basis that, as Viscount Simon L.C. put it:
"The council is further entitled to attach to the conclusion of the Divorce Court all the weight that is due to the effect on a trained judicial specialist of sworn testimony given, subject to cross-examination, before a tribunal which can compel attendance of witnesses and production of documents …"
In re. A Solicitor was a case in which an English solicitor, who had qualified as a solicitor in Western Australia, was struck off the roll of practitioners in Western Australia because it was found that she had committed perjury in connection with her divorce in Western Australia by making certain false statements on the hearing of the divorce proceedings. A complaint was then made to the Solicitors' Disciplinary Tribunal in England that she had been guilty of conduct unbefitting a solicitor. The tribunal, having heard the complaint, found the charge proved on the basis that there was no reason to doubt the decision of the Australian tribunal and ordered her name to be struck off the roll. The solicitor appealed against the tribunal's findings and order on the ground, inter alia, that the Australian board's findings were inadmissible in evidence before the tribunal and that the tribunal had failed to apply the correct standard of proof, i.e. that the complaint should be proved beyond reasonable doubt.
The judgment of the Court of Appeal was delivered by Lord Lane L.C.J. He said that, in the judgment of the court, the findings of the Australian board were not properly classed as hearsay or opinions: they were the judgment of that tribunal based upon an assessment of all the matters of fact and law which had been presented to it. Accordingly, in their view, it was open to the English tribunal to make such use of those findings as was proper in the circumstances of the case. The court was also of the view that, in deciding the weight to be attached to the Australian board's findings, the English tribunal would have to bear in mind a variety of considerations, including (a) the evidence adduced before the board, (b) the apparent fairness or otherwise of the proceedings before the board, (c) the standard of proof adopted by the board and (d) the absence of any right of appeal from the board's findings.
Since, however, in that case it was not clear to the Court of Appeal what standard of proof had been applied by the English tribunal in coming to its conclusion, and since they were also satisfied that the appropriate standard of proof was that applicable in criminal cases, they decided that the matter should be remitted to the English tribunal in order to determine whether the complaint should be upheld, applying the criminal standard of proof.
In considering whether the approach which found favour with the House of Lords and the Court of Appeal in those cases should be adopted in this jurisdiction, one must bear in mind the reasons which have led courts in this jurisdiction to hold that, in some cases at least, the right of a person to have the evidence against him given orally and tested by cross-examination before the tribunal in question may be of such importance in a particular case that to deprive the person concerned of that right would amount to a breach of the basic fairness of procedure to which he is entitled by virtue of Article 40.1 of the Constitution. It is not simply because the tribunal is in greater danger of arriving at an unfair conclusion, absent the safeguard of material evidence being given orally and tested by cross-examination. Such a departure from the normal rules of evidence might well be justifiable, as I have already noted, in the case of a tribunal of this nature. It is because, depending on the nature of the evidence, its admission in that form may offend against fundamental concepts of fairness, which are not simply rooted in the law of evidence, either in its statutory or common law vesture. As Henchy J. put it in Kiely –v- Minister for Social Welfare,
"Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice."
In that case, the evidence in question was the opinion of an independent medical expert as to whether the death of a person was the result of an accident which he had sustained at work, thereby entitling his widow to certain social welfare benefits. The considerations adverted to by Henchy J. must surely apply with even greater force where, as here, the evidence in question is that of persons accusing a doctor of particular acts alleged to amount to unprofessional conduct and exposing him to the possibility of being precluded indefinitely from practicing as a doctor. The seeming injustice of such a procedure is inevitably seriously enhanced where, as here, the hearing is being conducted in that form solely because the complainants are unwilling to travel to Dublin or, indeed, to give their evidence by way of video link or attend a hearing of the Committee in the United Kingdom.
The speeches in Spackman –v- General Medical Council and the judgment of Lord Lane L.C.J. in In re. A Solicitor leave no room for doubt that the issue as to whether the finding of another court or tribunal could be admitted in evidence and given such weight as the relevant disciplinary tribunal thought appropriate was considered solely in the context of the relevant law of evidence. The question as to whether such a hearing offended natural justice was not addressed at any stage. The proposition that a tribunal can adjudicate on serious allegations of professional misconduct which may result in a person being struck off the rolls of his profession without hearing the testimony of his accusers being given orally and tested by cross-examination before them, simply because they are unwilling to attend the hearing, is, in my view, irreconcilable with the standards of natural justice and fair procedures which are required of such bodies in this jurisdiction, having regard to the decisions in In re. Haughey, Kiely –v- Minister for Social Welfare and Gallagher –v- The Revenue Commissioners. To the extent that Spackman –v- General Medical Council and In re. A Solicitor suggest that a different approach is permissible, I do not think they should be followed.
The argument on behalf of the Medical Council in this case that the right of the applicant to test the evidence against him by cross-examination in an oral hearing has already been upheld in the proceedings before the P.C.C., is not without its attractions. Indeed, one could go further and say that the proceedings in the United Kingdom satisfied all the requirements which the Court of Appeal in In re. A Solicitor appear to have thought should be met before they were treated as a reliable basis for a finding of professional misconduct by the English tribunal. Thus, there was undoubtedly evidence before the P.C.C. on which they were entitled to arrive at the conclusion which they did, the proceedings were conducted with conspicuous fairness, the standard of proof applied was that applicable in criminal cases and the applicant was afforded a right of appeal to a court of which he availed. It is also a noteworthy feature of the proceedings before the P.C.C. that the legal assessor expressly warned that body that the absence of any corroborating evidence in the case of Mrs. C. and Mrs. E. imposed on the Committee a need for particular caution before finding any facts to have been proved in reliance solely upon their evidence.
That, however, simply throws into sharp relief the circumscribed nature of the inquiry upon which the Committee now proposes to embark. Since the P.C.C. was largely concerned with the resolution of issues of fact, it is evident that, in the light of the conspicuous fairness of the procedures afforded to the applicant, the capacity of the Committee in this jurisdiction to arrive at a different conclusion is drastically limited. The applicant is, in short, being subjected to an inquiry of a wholly different nature from that which is normally mandated in the case of a registered medical practitioner accused of professional misconduct and the subject of an inquiry under Part V of the 1978 Act. It is of critical importance that, if the inquiry is allowed to proceed in that form, it will be because of the election of the complainants not to give evidence in circumstances where it is not suggested that there is any difficulty in their so doing.
What was effectively an alternative submission was advanced on behalf of the Medical Council based on the exceptions which have been developed to the rule against hearsay. Insofar as that submission proceeds on the basis that the principle laid down in In re. Haughey does not, in every case, preclude a court or tribunal from admitting an out of court statement notwithstanding the rule against hearsay, because the maker of the statement is not available for cross-examination, it is undoubtedly correct. To hold otherwise would be to ignore the enormous body of jurisprudence which has been built up in many common law jurisdictions in order to ensure that the rule against hearsay is not so rigidly applied in every case as to result in injustice. It is also correctly pointed out that, apart from the evolution of the common law in this area, there has been a statutory recognition of the desirability of making such evidence available, as witness the provisions of s. 4 of the Criminal Procedure Act, 1967 as inserted by s. 9 of the Criminal Justice Act, 1990. It is also clear that, as argued on behalf of the Medical Council, the tendency in the more recent jurisprudence has been to admit such out of court statements where the two requirements of necessity and reliability are met. I am satisfied, however, that the authorities relied on by the Council would not justify the admission of the evidence in the present case.
Myers –v- D.P.P. was a case in which a majority of the House of Lords held that particular records relating to the manufacture of motor cars could not be admitted in evidence in a criminal prosecution where the persons who had compiled the records did not give evidence because they could not be identified. Lord Pearce and Lord Donovan dissented, taking the view that the exceptions to the rule against hearsay were capable of development by the courts without recourse to legislation and that, accordingly, it should have been sufficient for the person having custody of the records to prove them. That, accordingly, was a case in which the records could not be proved in any other way and the objection to their admission was of a purely technical nature. If one were to conclude that the view of the minority in that case was preferable and should be followed in this jurisdiction, it would be of no assistance to the Council in the present case, where the non-availability of the evidence is due to the unwillingness of the persons concerned to testify and the evidence in question, far from being part of a technical chain of proof, is the essential evidence on which the Council rely.
The dissenting speeches in Myers were, however, referred to in later decisions of the Supreme Court of Canada as demonstrating that the doctrine of necessity should play an essential part in establishing exceptions on a principled basis to the rule against hearsay. Thus, in R. –v- Khan, where a doctor was charged with the sexual assault of a young girl, the prosecution sought to introduce statements made by the child to her mother some fifteen minutes after the alleged assault. It was accepted that the child, who was four and a half years old at the time of the trial, was not competent to give unsworn evidence. It was held that the evidence was admissible, since it was not only reliable but also met the test of necessity, i.e. it could not be adduced in any other form, the child not being competent to give evidence. It should be noted that, in the course of her judgment, McLachlin J., as she then was, said that the requirement of necessity in such a case might also be established by "sound evidence based on psychological assessments" that testimony in court might be traumatic for the child.
That court also treated as admissible in R. –v- Smith  2 SCR 915, which was a prosecution for murder, evidence of telephone calls made by the deceased to her mother which, as the prosecution claimed, implicated the accused. Again, the evidence was held to meet the test of necessity, in addition to being treated as reliable. A similar approach was adopted in R. –v- Finta  1 SCR 701, when depositions made to the Hungarian Police and to a "people's tribunal" in Hungary were treated as admissible in a trial of a person accused of crimes against humanity during the Second World War, again as meeting both the tests of reliability and necessity. In another Canadian case, R. –v- Hawkins  3 SCR 1043, the principal witness against a police officer accused of corruption was his girlfriend who made a number of statements under oath incriminating him, at a preliminary hearing. She subsequently married the accused and, under Canadian law, was, as a result, not a competent witness for the prosecution. It was held that her pre-trial statements were admissible, again as satisfying the tests of reliability and necessity.
Of these cases, R. –v- Khan is referred to in the decision of this court in Eastern Heath Board –v- M.K., but the question as to whether it would be followed in this jurisdiction was not decided.
It would seem that, in all the Canadian cases, the witnesses concerned could not be called to give evidence, because they were either dead or incompetent to give evidence. In the present case, in contrast, the Council seek to adduce the hearsay evidence because the complainants are unwilling to give evidence at the inquiry and cannot be compelled so to do. It is, accordingly, unnecessary to reach any conclusion in this case as to whether the approach adopted in the Canadian authorities should be followed in this jurisdiction. It is sufficient to say that the applicant cannot be deprived of his right to fair procedures, which necessitate the giving of evidence by his accusers and their being cross-examined, by the extension of the exceptions to the rule against hearsay to a case in which they are unwilling to testify in person.
The desire of the Council to proceed with an inquiry based on the records of the proceedings in the United Kingdom is perfectly understandable, having regard to the important statutory function entrusted to them of investigating any allegations of professional misconduct against doctors registered in this jurisdiction which come to their attention. However, that consideration cannot relieve the High Court or this court of the obligation of ensuring that the right of the doctor concerned to a fair hearing is, so far as practicable, upheld.
I would dismiss the appeal and affirm the judgment of the High Court.