The High Court has upheld a doctor’s right to have a witness testify and be subjected to cross-examination in relation to charges of professional misconduct concerning sexual allegations. In the case of R (Professor Johannes Philip Bonhoeffer) v General Medical Council  EWCA 1585 (Admin), a Judicial Review, Lord Justice Laws and Mr Justice Stadlen held that the GMC in the circumstances of the case (where the complainant was willing to testify) should not have arrived at a conclusion that the complainant’s evidence could be ‘read’ into the record, without calling him to testify and be subject to cross-examination. (This is called ‘relying on hearsay’. Hearsay is a statement relied upon by a party where the witness is not called.)
Further, the potentially devastating impact (on his career, financial position, and reputation) of a finding of fact against the doctor, the fact that the complainant was the only complainant of otherwise uncorroborated allegations, weighed against the hearsay statement of the complainant being admitted in the circumstances of the case.
Mr Justice Stadlen opined, “It is axiomatic that the ability to cross-examine in such circumstances is capable of being a very significant advantage. It enables the accuser to be probed on matters going to credit and his motives to be explored. It is no less axiomatic that in resolving direct conflicts of evidence as to whether misconduct occurred the impression made on the tribunal of fact by the protagonists on either side and by their demeanour when giving oral testimony is often capable of assuming great and sometimes critical importance” [at paragraph 44 of the judgment]. [Read: the full law report.]
In essence, the case reinforces the need for Fitness to Practise Panels (FTPP) to make a proper and detailed assessment of the ‘fairness’ of proceedings when determining whether to admit hearsay evidence without calling a witness.
The above case very much turned on its own facts. There was a concern that the complainant, who lived in Kenya, would face reprisals if it became known that he had participated in certain homosexual acts.
The court judgment also referred, obiter, to the issue of whether hearsay evidence could be fairly admitted in the absence of principle witness, even where there was no threat to a complainant. It appeared to the court that fairness required all principle witnesses to give evidence in cases where there were serious allegations that could have a devastating impact on a doctor’s career, so long as the witness could be located or that reasonable efforts had been made to enable a witness to give evidence in person or by video-link, and that there were no counter-prevailing justifications that outweighed the witness being called to give evidence.
It will be observed that the concept of ‘Fairness’ will necessarily be fact sensitive. The ‘Bonhoeffer’ judgment is helpful in its analysis of the legal concepts and arguments that need to be considered by regulatory panels tasked to consider and determine whether to admit hearsay evidence. There will no doubt be future cases where a panel determines that in all of the circumstances hearsay should be admitted, but in such cases the panels will need to assess the competing arguments and weigh up whether a regulated professional can have a fair trial if the hearsay in question were to be admitted, giving cogent reasons for its decision. Lawyers who represent doctors need to be mindful of the wider implications of this case in GMC regulatory proceedings.
[Doctors Defence Service 24 June 2011]
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