High Court of Ireland Decisions

THE HIGH COURT JUDICIAL REVIEW

[2002 No. 129JR]

Between:

SEBASTIAN BORGES

Applicant

-and- THE FITNESSS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL and THE MEDICAL COUNCIL

Respondents

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 5th March, 2003.

This is an application for judicial review for the relief of

(i) An order of certiorari by way of judicial review quashing the purported ruling of the respondent made the 14th January, 2000 to proceed with an inquiry under Part V of the Medical Practitioners Act, 1978 into the conduct of the applicant, and to admit as evidence at the hearing of the said inquiry a transcript of proceedings concerning the applicant before the General Medical Council of the United Kingdom, the report following the said proceedings or the judgment on appeal there from to the Privy Council;

(ii) A declaration by way of judicial review that the said purported ruling of the respondent was ultra vires, void and of no effect;

(iii) An injunction restraining the respondent from proceeding with the said inquiry or from purporting to admit the said transcript, report or judgment into evidence.

The grounds upon which this relief is sought are:

1. The respondent acted ultra vires its powers under the Medical Practioners Act, 1978 in purporting to permit the said inquiry

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to proceed in circumstances where the only alleged evidence of misconduct is the evidence of witnesses whom the respondent does not intend to call to give viva voce evidence upon oath before the respondent.

2. The respondent is purporting to proceed to treat the said transcript report or judgment as evidence sufficient to support a finding of professional misconduct against the applicant.

3. The applicant will be denied his constitutional right to confront his accusers and in particular to cross examine the said witnesses.

4. The said purported ruling of the respondent amounts to a denial of the applicant's right to fair procedures.

5. The ruling of the respondent is not in conformity with the requirements of natural and constitutional justice.

6. The respondent misdirected itself in law in considering that the transcript, report or judgment could be admitted in evidence subject only to the respondent's determination of the weight to be attached to such evidence in circumstances where there is no other evidence which could support a finding of professional misconduct against the applicant.

7. The respondent acted ultra vires its powers under the said Act of 1978 in determining that it is entitled to admit any evidence in the course of an inquiry under Part V of the Act of 1978 subject only to the weight to be attached to that evidence.

8. The respondents erred in law and exceeded its powers under the Act of 1978 in determining that a transcript of the evidence of the applicant's accusers before another tribunal in another jurisdiction, or the finding in relation thereto, could in any circumstances be sufficient to ground a finding beyond reasonable doubt that the applicant had been guilty of professional misconduct.

9. The respondent in purporting to have regard to the findings and determination of tribunals in another jurisdiction acted in excess of its jurisdiction in that such findings and determinations do not constitute evidence within the meaning of s.45 of the Medical

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Practioners Act, 1978 and their admission would be prejudicial, unfair and contrary to natural justice.

10. The admission in evidence of transcripts and findings including matters extraneous to the subject matter of the inquiry before the respondent would be prejudicial, unfair and contrary to natural and constitutional justice.

11. The respondent in all the circumstances acted in excess of its jurisdiction.

The applicant was given leave to institute these proceedings by order of this Court made the 11th March, 2002. The application is grounded upon an affidavit of the applicant filed the 8th March, 2002 in which he indicates that he qualified as a medical doctor in 1974 and has been in practice since that time. He is a consultant obstetrician gynaecologist and has been in practice as such since 1994 at Caithness Hospital in North Scotland and at the Whittington Hospital, London from February 2000 to October 2001. Previously the applicant practiced in Ireland at Tralee Country Hospital for one month in 1979, Cork Regional Hospital from 1982 to 1984 and the Rotunda Hospital from 1984 to 1985. The applicant indicates that in November 2001 he was served by the Registrar of the Medical Council with a notice of intention to hold an inquiry under Part V of the Medical Practitioners Act, 1978 which notice sets forth allegations of misconduct which relate to two alleged incidents, one which allegedly occurred on the 7th August, 1996 and the other on the 30th August, 1996, which allegations relate to two former patients of his referred to as 'Mrs. C' and 'Mrs. E' in the notice of inquiry. The applicant points out that the nature of the evidence set out in the Notice of Inquiry indicated that it was the intention of the Registrar to request Mrs. C, Mrs. E and Mr. E to attend at the inquiry for the purpose of giving evidence in relation to the allegations of professional misconduct. This inquiry was scheduled to commence on the 18th February, 2002 but was adjourned on consent by the parties pending the outcome of these proceedings. The applicant denies the allegations against him.

The position is that the Registrar applied to the respondent on the 16th January, 2002 in which it was indicated that he would not now be calling in evidence Mrs. C, Mrs. E and Mr. E, but instead the registrar proposed to introduce in evidence before

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the respondent a transcript of proceedings before the Professional Conduct Committee of the General Medical Council of the United Kingdom, before which committee the said witnesses had given evidence in relation to the matters referred to in the Notice of Inquiry herein. The Registrar also proposed to introduce in evidence the report of the said Committee and the judgment on appeal therefrom of the Privy Council.

The applicant points out that as appears from the transcript the United Kingdom inquiry included a number of issues of no relevance to the respondent's inquiry, the introduction of which the applicant believes to be prejudicial.

The applicant points out that he was represented by Senior Counsel at the inquiry before the respondent and that counsel objected strenuously on his behalf to the admission of such evidence and that the inquiry proceeded on that basis. The applicant contends that the only witnesses who could conceivably give any evidence of the alleged incidents are Mrs. C and Mrs. E and he says that he has been advised that he would be severely prejudiced in defending himself against the allegations of professional misconduct were the inquiry to proceed on the basis of transcript evidence only. He says that the respondent would have no opportunity of hearing and assessing the witnesses who accuse him nor would he have the opportunity of cross examining those witnesses or testing their evidence. He says that the introduction of the report of the Professional Conduct Committee of the General Medical Council of the United Kingdom and judgment of the Privy Council therefrom would compound the prejudice to him thereby occasioned.

A statement of grounds of opposition has been filed on behalf of the respondent in which the grounds advanced by the applicant are denied and in which it is pleaded further at paragraphs (xv) and (xvi):

(xv) Whether or not there are matters extraneous to the subject matter of the proposed inquiry before the respondent in the relevant transcripts and findings is a matter that should be properly determined at the inquiry itself. It should be presumed that the respondent will act in accordance with fair procedures in determining this matter. At this stage it is premature to allege that the respondent will improperly place any weight on irrelevant evidence.

(xvi) The purpose of judicial review is not to direct the procedures to be followed by an administrative body in advance.

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An affidavit has been sworn by Mr. Brian Lea, Registrar of the Medical Council in which he indicates that strenuous efforts were made to secure the attendance of witnesses from the United Kingdom and that the transcripts and rulings will not be the only evidence relied upon at the proposed inquiry but that they will simply be one item of evidence. It is indicated that it is proposed to call witnesses to establish the provenance of the transcripts and rulings as well as the structure of the disciplinary process followed by the Professional Conduct Committee of the General Medical Council of the United Kingdom and the procedures followed at each stage of it. Further, evidence will be given as to the manner in which the Professional Conduct Committee of the General Medical Council of the United Kingdom reaches its determinations and the appeal mechanisms open to a doctor in the event of an adverse ruling. It is stated that the purpose of this evidence will be to assist the members of the respondent committee hearing the case to determine what weight, if any, to give the documentary evidence placed before them. It is stated that the applicant will have the opportunity to cross examine this witness.

Other live witnesses to be called will be expert witnesses, for example a consultant obstetrician gynaecologist, who will have read the transcripts and exhibits as well as the observations and comments of the doctor under inquiry, and this witness will give expert testimony on such conduct as is revealed in the transcripts. It is stated by Mr. Lea that it is only after it has heard all of the live witnesses called by each side and the submissions made by each side that the respondent committee hearing the case would make a decision as to what, if any, weight it will give to the documentary evidence before it. Mr.Lea states that it is impossible to predict what might happen at this stage and depending on the submissions it may be that the transcript will be accepted as a true record of the proceedings or otherwise and the respondent committee will have to determine what weight, if any, should be accorded to same. Mr. Lea states that no issue was raised before the respondent committee as to the inclusion of irrelevant and prejudicial material in the transcript of evidence. He expresses the view that it is premature to allege that the respondent will improperly place any weight on irrelevant evidence. It must be stated the major part of Mr. Lea's affidavit is argumentative in nature and it is not confined to factual matters but is in the nature of submissions.

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Submissions

Mr. Nicholas Butler S.C., counsel for the applicant, submitted that to allow the hearing to proceed on the basis of the transcript evidence would amount to a denial of the applicant's right to a fair hearing where the applicant would be deprived of his right to cross examine Mrs. C and Mrs. E and where the members of the respondent committee would have no opportunity of hearing and observing the evidence and demeanour of these two witnesses. It is submitted that it is irrelevant that these two witnesses were cross examined before the Professional Conduct Committee of the General Medical Council of the United Kingdom. In the absence of these witnesses it is not possible to assess their evidence as against that given by them before the Professional Conduct Committee of the General Medical Council of the United Kingdom.

Counsel refers to Gallagher v. The Revenue Commissioners (No. 2) [1995] 1 I.R. 55 where the right to cross examined was considered by the Supreme Court. The case shows that while on occasions a tribunal of inquiry may act on hearsay evidence, in the particular case the deprivation of the right to cross examine witnesses as to facts central to the establishment of the charge against the applicant amounted to a failure to afford the applicant fair procedures and constituted a breach of the requirement of natural justice to audi alteram partem. The Supreme Court noted that R. v. Board of Visitors of Hull Prison ex p. St. Germain D. C. [1979] 1 W.L.R. 1401 is authority for the proposition that mere administrative difficulties in securing the attendance of witnesses before a tribunal or inquiry is not a sufficient ground for depriving a person charged before the tribunal of the right to cross examine witnesses as to facts which are essential to the establishment of the charges against him.

Further reference is made to a portion of the judgment of Henchy J. in Kiely v. Minister for Social Welfare [1977] IR 267 at p.281, referred to by Hamilton C.J. in the Gallagher case, where he said:

"This Court has held, in cases such as In re Haughey [1971] I.R. 217 that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and

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the like - but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118; 'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.'"

Counsel submits that it is clear from this statement that while tribunals exercising quasi judicial functions, as the second respondent was in the case, are given a certain latitude to the exercise of their functions and in determining the requirements of natural justice and fair procedures in the circumstances of the case, they may not act in such a way as to imperil a fair hearing or a fair result. Counsel further refers to a portion of the judgment of O Dálaigh C.J. in Re Haughey [1971] I.R. 217 at p. 264 where he said:

"...a person whose conduct is impugned as part of the subject matter of the inquiry must be afforded reasonable means of defending himself."

And to an earlier passage at p.263 where he enumerated what these reasonable means meant when he said:

"Having thus apparently accepted the necessity for such immunity, counsel's submission was that, in all the circumstances, the minimum protection which the State should afford his client was (a) that he should be furnished with a copy of the evidence which reflected on his good name; (b) that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c) that he should be allowed to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in his own defence."

Hamilton C. J. further referred with approval to a portion of the judgment of Henchy J. in Kiely v. Minister for Social Welfare [1977] IR 267, at pp. 281 to 282 where he said:

"Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done

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if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party had been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal's conduct was beyond review because it had acted on logically probative evidence and had not stooped to the level of spinning a coin or consulting an astrologer. 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."

Also in Gallagher Hamilton C.J. cited with approval a portion of the judgment of Barron J. in Flanagan v. University College Dublin [1988] I.R. 724 at pp. 730 to 731 where he said:

"Once a lay tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for the person concerned in the event of an adverse decision. Accordingly, procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case."

In Gallagher O'Flaherty J. said inter alia at p. 87 of the report:

"I fail to comprehend how it can be put forward as being of any assistance to this Court to submit that because potential witnesses were outside the jurisdiction that that could change the complexion of the nature of the inquiry"

Counsel submits that in the instant case the respondent committee, being charged with determining whether the facts alleged are proved or not must have an

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opportunity of observing first hand the witnesses involved and their demeanour and that such matters cannot be determined on the basis of transcript evidence alone.

Counsel refers to the decision of the Supreme Court in Ó Ceallaigh v. Fitness to Practice Committee of An Bord Altranais [1999] 2 IR 552 where the Court intervened by way of judicial review of disciplinary proceedings where a ruling was made by the respondent committee to adopt a particular procedure before embarking upon the substance of the charges.

With regard to the report of the Professional Conduct Committee of the General Medical Council of the United Kingdom and the conclusions of the Privy Council, counsel submits that the same cannot have any probative value whatsoever in the context of the hearing before the respondent committee and it is submitted that they can only be prejudicial. It is submitted that the respondent committee should have no regard to the findings of a tribunal in another jurisdiction when the tribunal has no status or function in this jurisdiction. Counsel asks rhetorically, if Mrs. C and Mrs. E were to give evidence before the respondent committee would the Registrar be entitled to put the findings of the Professional Conduct Committee of the General Medical Council of the United Kingdom and the Privy Council before the respondent?

Counsel submits that had the legislature intended the procedure at issue to be adopted that it could have provided for the reception into evidence of evidence given before the Professional Conduct Committee of the General Medical Council of the United Kingdom.

Counsel submits that the decision in Phillips v. Medical Council [1992] ILRM 469 is authority for the inquiry under Part V of the 1978 Act where Carroll J. observed at p. 475:

"The committee has a duty to act judicially and employ fair procedures in the inquiry. It would be totally contrary to the scheme of the Act to interfere with the procedures laid down which envisage the presentation of sworn oral testimony and a finding by the committee" (emphasis added).

Counsel refers to In re M a Doctor [1984] I.R. 479 where Finlay P. in dealing with the procedures to be followed by the High Court in an appeal from a decision of the respondents held that they were obliged to prove by oral evidence any fact on which they relied and which was contested by the doctor. Counsel submits that this clearly implies that such facts would have to be proved in the same manner before the committee whose decision was under appeal.

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Counsel submits that the law in England differs to that in Ireland where the decision of the Privy Council was one on an appeal on the transcript of the hearing before the Professional Conduct Committee of the General Medical Council of the United Kingdom and where, it is submitted, the Privy Council sought to assess the evidence of certain witnesses in a manner quite alien to the courts in this jurisdiction.

Counsel adverts to the fact that the standard of proof applied by the respondent committee is proof beyond all reasonable doubt and it is submitted that to admit as proof of the alleged misconduct the transcript of the proceedings before the Professional Conduct Committee of the General Medical Council of the United Kingdom is at variance with the requirement to prove the complaint beyond all reasonable doubt. Counsel submits that one cannot treat the transcript in any event as having the same quality as evidence given viva voce. On this basis it is submitted that the respondent committee cannot admit the transcript evidence subject to a decision as to the weight to be attached thereto, as the same is clearly of prejudicial effect where it is of no probative value.

With regard to the live witnesses proposed to be called by the Registrar, it is submitted that this evidence wholly rests on the evidence of the transcript itself and the accompanying reports.

With reference to Mr. Lea's affidavit and the concern of the respondents to protect the public, it is submitted that what the respondents consider appropriate to protect the public is not germane to these proceedings. It is submitted that the respondents rights and duties are to be found in the provisions of the Act of 1978 and not elsewhere.

On behalf of the respondents it is submitted by Mr. Eoin McCullough S.C. that the scope of judicial review is not to direct the procedures to be followed by an administrative body in advance. In this regard counsel refers to the judgment of Carroll J. in Phillips v. Medical Council [1992] ILRM 469 where she stated, inter alia, at p. 475:

"Judicial review does not exist to direct procedures in advance but to make sure bodies which have made decisions susceptible of review have carried out their duties in accordance with the law and in conformity with natural and constitutional justice."

Which observation was approved by McGuinness J. in Carroll v. Law Society [2000] ILRM 161 at p.174.

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Counsel refers to Maguire v. Ardagh [2002] 1 IR 385 and in particular the judgment of Geoghegan J. at p 739 where he stated, inter alia, as follows:

"As the sub-committee hearings had not got under way I do not consider that certiorari would be appropriate if a statement of intended objectionable procedures was the only ground. The remedy would be premature. But that does not mean that a judicial review proceeding itself would be premature. Once there was such a clear declaration of intention as to the nature of the procedures, it was legitimate to bring judicial review proceedings but insofar as the court would uphold the objections of the applicants it should be reflected in the form of a declaratory relief rather than in the form of certiorari."

On the basis of these authorities it is submitted that the applicant is not entitled to an order of certiorari quashing the decision to proceed with an enquiry or an injunction restraining the holding of the inquiry.

Counsel refers to the actual ruling of the respondent committee where it indicated that on the basis of the authority of Re a solicitor [1992] 2 All E.R. 335. it had decided to admit the evidence in question but emphasised that the weight to be attached to it is a matter for the committee itself. Counsel refers to the affidavit of Mr. Lea wherein it is indicated that the transcripts only form part of the proposed evidence against the applicant and indicates that it is open to the applicant to call evidence in his defence and to give evidence himself.

Counsel submits that the Act of 1978 does not set out what procedures are to be followed at the inquiry, but merely states at s. 45 (3) (b):

"the Registrar, or any other person with the leave of the Fitness to Practise Committee, shall present to the Committee the evidence of alleged professional misconduct or unfitness to practise by reason of physical or mental disability, as the case may be,"

Counsel submits that there is nothing in the section to suggest that the word "evidence" is limited to oral testimony. Counsel submits that the word "evidence" includes documentary evidence and, when admissible, hearsay evidence.

Counsel submits that there is no reason why the findings or determinations of a tribunal in another jurisdiction should not amount to evidence within the meaning of the s. 45 of the Act of 1978. Counsel submits that the question of weight to be

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attached to such evidence is another matter and will depend on such matters as the extent to which the applicant disputes the accuracy of the transcript.

Counsel refers to the judgment of Costello J. in Goodman v. Hamilton [1992] 2 I.R. 542 where he said at p. 565:

"There is no rule of law which requires a Tribunal of Inquiry to apply the rules of evidence applicable in a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures and should, for example, a question arise as to the receipt of hearsay evidence, the Tribunal might be required to hear persons affected on the point."

Further counsel refers to the judgment of Hamilton C.J. in Murphy v. Flood [2000] 2 I.R. 298 at p.305 where, in reference to a decision of the respondent to admit in evidence an affidavit of a deceased person sworn in 1989, he stated:

"The admissibility of evidence is purely a matter for the respondent and his decision to admit the said evidence cannot be said to have been made by him in breach of the applicant's constitutional rights or to be so unreasonable or irrational as to justify this court in interfering therewith."

Counsel further refers to a portion of the judgment of Henchy J. in Kiely v. Minister for Social Welfare [1977] I.R. 276 at p.281 where he stated, inter alia, as follows:

"Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing or a fair result."

Counsel refers to the decision of the High Court in England in Re a solicitor [1992] 2 All E.R. 335 involving a solicitor who was practicing as a solicitor in Western Australia. The Barristers Board of Western Australia struck the appellant off the role on the grounds that she had committed perjury in certain matrimonial proceedings in which she had been involved as a litigant. The decision was reached after a hearing at which counsel for the appellant, but not the appellant herself, attended. The appellant returned to England to practice. The Secretary of the Australian Board wrote to the Law Society in England to advise it that the appellant had been struck off. As a result of the information received a complaint was made

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to the Solicitors Disciplinary Tribunal ('the Tribunal')alleging that the appellant was guilty of conduct unbefitting a solicitor. After a hearing the Tribunal found the charges proved on the basis that there was no reason to doubt the Australian Board's decision and it ordered that the appellant's name be struck off. The appellant appealed this decision. In the High Court it was held that the Tribunal could have regard to the findings of the Australian Board. In giving the judgment of the court, Lord Lane C.J. noted that the Tribunal was not bound by the strict rules of evidence that would apply in a court of law and stated, at p. 341 of the report:

"In our judgment the findings of the board do not fall within the words of section 1. The findings of a tribunal are sui generis. They are not properly classed as hearsay or opinions; they are the judgment of the tribunal based upon an assessment of all the matters of fact and law which have been presented to it. Accordingly, it was open to the Solicitors' Disciplinary Tribunal to make such use of those findings as was proper in the circumstances of the case."

Counsel submits that it must be assumed that the respondents will act fairly and in this regard, in assessing the transcripts, that the respondent committee will disregard any irrelevant evidence. Counsel refers to the evidence before this court that this matter was not in fact raised in argument before the respondent committee and in this light no ruling has been made as to whether any part or parts of the transcript should be excluded from the evidence on the basis that its prejudicial effect outweighs its probative value.

Counsel refers to the fact that the applicant has had an opportunity of cross examining the witnesses whose testimony is recorded in the transcripts at the time of the earlier hearing and in this regard the applicant has had a full opportunity to confront his accusers at the hearing when he was represented by solicitor and counsel.

Counsel submits that there is nothing unfair in admitting the contents of the transcripts into evidence in this jurisdiction and contends that a second cross examination of the witnesses would be artificial as they would know what the likely questions would be and the applicant would know in advance the answers that are likely to be given. Counsel submits that the respondent committee is likely to take into account any disadvantage incurred by the applicant in not having the

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ability to cross-examine any particular witness in Ireland when it is engaged in assessing the weight to be attached to the transcript.

Counsel refers to an earlier occasion when the respondent committee admitted transcript evidence but indicates that some reassurance can be taken by the applicant from the fact that in that instance there was ultimately no adverse finding made against the medical practitioner concerned. In that case the practitioner accepted as accurate, with one minor exception, the transcript of evidence. Counsel observes that in the instant case the applicant has not indicated whether he accepts the contents of the transcripts to be a true record of the evidence given on the occasion.

Counsel submits that the public interest will be served by allowing the evidence in question to be given to the respondent committee in the form of the transcripts. It is submitted that the Medical Council will be greatly hindered in its duty if it cannot rely on transcripts of foreign hearings as constituting admissible evidence. Counsel refers to the fact that a great many doctors who are registered in Ireland practice abroad. When disciplined abroad, including where the name of the doctor concerned is struck off the register abroad, the doctor in question remains free to practice in Ireland. The only way in which a doctor can be disciplined in Ireland is by an s. 45 hearing. It is submitted that complainants should be called to give live evidence where possible and practicable. It is submitted that there may be some cases where this presents a difficulty, for example, where a doctor's name is removed from the register in New Zealand after a hearing involving a large number of witnesses. Counsel submits that it may prove impossible to replicate such a hearing in Ireland. Counsel refers to the fact that the Medical Council does not have a mechanism whereby it can compel the attendance of a witness from outside the jurisdiction. Counsel submits that there may also be cases such as the present where witnesses are in closer proximity but nevertheless are unwilling to attend. Counsel indicates that there may be very understandable reasons why witnesses may not wish to face the ordeal of a second hearing especially in cases involving confidential medical affairs. Counsel submits that in these circumstances the Registrar can either decide to take no action against the doctor in this jurisdiction or alternatively to seek to have admitted into evidence the transcripts of the earlier hearing being the foreign proceedings. This is the course adopted in this case and counsel submits that this has been done in the public interest to protect the public

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while at the same time ensuring that the doctor obtains a fair hearing. It is submitted that the ruling in the instant case strikes a fair balance between the interests of the applicant and those of the public.

Counsel stresses that the respondents rely upon the doctrine of necessity in this case. Counsel submits that the issue arising in this case has not been addressed in any previous case in this jurisdiction.

Counsel contends that the applicant is not entitled to a second oral hearing. It is submitted that the applicant had the full panoply of rights at the earlier hearing. Counsel notes that no case has been made by the applicant that there was any infirmity in the procedure followed in the earlier hearing.

Counsel submits that on a reading of the Act of 1978 there is no limitation on the procedures that may be followed.

With regard to the rule of necessity, counsel refers to Administrative Law in Ireland by Hogan & Morgan, 3rd Ed. at p. 534 where the authors consider the rule of necessity in case of bias. Counsel refers to the decision of the Supreme Court in O'Byrne v. Minister for Finance [1959] I.R. 1 where the court had to consider the constitutionality of legislation which rendered judges liable to pay income tax on their salaries. The same doctrine was addressed by Finlay C.J. in O'Neill v. Beaumont Hospital Board [1990] ILRM 419 and explained in the context of an issue of bias as follows:

"It is not a dominant doctrine, it could never defeat a real fear and a real reasonable fear of bias or injustice but it is a consideration in relation to the question of the entire board being prohibited, for if that were to be done there can be no other machinery by which something which is of great importance both to the board of the hospital and to the plaintiff, and I might add, to the public who will attend the hospital, namely the continuance or non continuance of the plaintiff s services in the hospital, can be determined in accordance with the terms of the probationary agreement."

The respondents' case rests upon the doctrine of necessity and the application in this jurisdiction of the principles applied in Re a solicitor [1992] 2 All E.R. 335. In that case the Queen's Bench Division indicated the reasons for which it considered that the tribunal was entitled to use evidence which it noted might in strict law be inadmissible. A reading of the decision shows that the court had regard to the provisions of the Solicitors (Disciplinary Proceedings) Rules,

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1985 and noted that these rules did not provide that the strict rules of evidence should apply to proceedings before the tribunal. The Court considered the findings of the tribunal to be sui generis and not properly classed as hearsay. Lord Lane C.J. speaking for the court stated at p. 341:

"They are not properly classed as hearsay or opinions; they are the judgment of the tribunal based upon an assessment of all the matters of fact and law which have been presented to it. Accordingly, it was open to the tribunal to make such use of those findings as was proper in the circumstances of the case."

He later added at p. 343:

"It seems to us that the task of the tribunal in a case such as the present is to have regard to all the evidence which is adduced before them, including the board's findings, the course of events in Western Australia, the evidence of the appellant and the contents of the affidavits adduced on her behalf and to ask themselves whether or not they are satisfied to the requisite standard of proof that the charges are made out.

In deciding the weight to be attached to the board's findings, i.e. the board's actual conclusions upon the allegations of misconduct, the tribunal will clearly bear in mind a variety of considerations and not least (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 ..."

Counsel refers to the provisions of s. 13 (8) of the Act of 1978 which provides:

"The Council may, subject to the provisions of this Act, regulate the procedure of committees established under this section, but, subject to any such regulation, committees established under this section may regulate their own procedure."

Counsel submits that the procedure in question applied by the respondent committee is fair and counsel refers to the fact that the respondent committee applies a criminal standard of proof.

In reply Mr. Butler refers to the fact that In re M a Doctor [1984] I.R. 479 there was a full oral re-hearing of the case before the High Court. On the basis of this submission counsel submits that one cannot say that the court has not addressed the issue of cross examination in a second oral hearing.

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Counsel submits that the instant case is not one of necessity as the witnesses could attend the hearing if they wished. Counsel refers to the judgment of Barron J. in Flanagan v. University College Dublin [1988] I.R. 724 and in particular to that portion of his judgment at pp. 730 to 731 where he said:

"Once a lay tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for the person concerned in the event of an adverse decision. Accordingly, procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case. In the present case, the principles of natural justice involved relate to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence. Matters to be considered are the form in which the complaint should be made, the time to be allowed to the person concerned to prepare a defence, and the nature of the hearing at which that defence may be presented."

In regard to the particular facts in that case Barron J. continued at p. 731:

"The present case is one in which the effect of an adverse decision would have far-reaching consequences for the applicant. Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view, the procedures must approach those of a court hearing. The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence. She should equally have been allowed to be represented by someone of her choice, and should have been informed, in sufficient time to enable her to prepare her defence, of such right and of any other rights given to her by the rules governing the procedure of the disciplinary tribunal. At the hearing itself, she should have been able to hear the evidence against her, to challenge that evidence on cross-examination, and to present her own evidence."

Counsel submits that the facts of the present case are such that no lesser right should apply to the applicant than applied to the applicant in Flanagan.

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Counsel submits that the authority of Re a solicitor should not be followed and that it is distinguishable from the binding Irish decisions already referred to.

Conclusion:

In this case it is not disputed that the applicant is entitled to fair procedures. While it has been submitted that the application is premature, I am satisfied, insofar as the respondent committee has given a ruling in relation to the reception of the evidence at issue, that it is appropriate that I entertain this application and address the issues raised herein. The Registrar has found himself in a difficult position as it is clear that when the matter was first addressed to the respondent committee it was anticipated that the witnesses at issue would attend the hearing and give their evidence viva voce.

While it is clear that the respondent committee has discretion in regard to its procedures, this is clearly not unlimited. As stated by Walsh J. in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317 at p.341:

"[T]he presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."

The issue accordingly is whether the procedures followed in the instant case accord with the requirement of constitutional justice. I am satisfied that the procedures to be applied in this case must be reasonable having regard to the requirement that the respondent committee act judicially and also having regard to the possible consequences for the applicant if an adverse finding is made against him. The facts at issue which are sought to be proved by reference to the transcript evidence are central to the enquiry against the applicant. In light of these facts I am satisfied that the interests of justice in this case are such that the applicant should be afforded an opportunity of confronting his accusers. In this regard I am influenced by the decision in Flanagan v. University College Dublin [1988] I.R. 724 and

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based upon same I believe that the situation of the applicant in the hearing before the respondent committee is no less serious than that at issue in that case. What must be asked in this case is whether the proposed procedures are such as to imperil a fair hearing and a fair result of the inquiry. It is clear that mere administrative difficulties faced by the respondents cannot justify any departure from the requirements of justice. This is recognised by the respondents.

While the respondents rely essentially on the authority of Re a solicitor [1992] 2 All E.R. 335, I am satisfied that this cannot prevail over the requirements of justice. While that authority is persuasive, unless the doctrine of necessity were to be extended to the matter at issue in this case, I consider that the authority is one which appears to fall short of the requirements recognised as necessary in Flanagan v. University College Dublin and in Gallagher v. The Revenue, Commissioners (No.2) [1995] 1 I.R. 55. While counsel has indicated that the public interest would be best served by extending the application of the doctrine of necessity to the circumstances of this case, I believe that, in the absence of legislative authority, it would be going too far to permit the proposed procedures to be allowed in this case, notwithstanding the fact that the applicant has already had the opportunity of testing the evidence at issue.

In all the circumstances I am satisfied that the proposed hearing should not be allowed to proceed on the basis of the reception into evidence of the transcripts in the absence of the oral testimony of the central witnesses, the complainants, against the applicant.

While some time has been devoted in argument to the issue whether the hearing before the respondent committee necessarily involves oral testimony, I am satisfied that the answer to this question will depend on the circumstances of each individual case and the nature of the evidence. In this regard I am satisfied that a portion of the evidence could be given in written form in a given case but the decision as to how far this procedure may extend must in all cases depend on the interests of justice.

With regard to the relief sought herein I am satisfied that the appropriate relief is by way of a declaration and in this regard I will declare that to proceed with the inquiry under Part V of the Medical Practitioners Act, 1978 into the conduct of the applicant and to admit as evidence at the hearing of the said inquiry a transcript of proceedings concerning the applicant before the General Medical

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Council of the United Kingdom, the report following the said proceedings or the judgment on appeal there from to the Privy Council, in the absence of the oral testimony of the complainant witnesses whose testimony is recorded in the said transcripts, will amount to a deprivation of a fair hearing for the applicant.