Hi-ho for hearsay

The High Court has upheld a judicial review challenge against hearsay evidence in a General Medical Council (GMC) disciplinary hearing.

R (On the application of Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) concerned a decision by the fitness to practise panel (FTPP) of the GMC to allow hearsay evidence from a witness in Kenya. The case concerned allegations of serious sexual misconduct on the part of the claimant, Professor Philipp Bonhoeffer, an eminent paediatric cardiologist, while he was working abroad.

Bonhoeffer denies the allegations, which come from a single source. The other alleged victims have denied the misconduct took place.

The GMC argued that if the witness attended in person or gave evidence via video link then he would be exposed to a significantly increased risk of harm in Kenya, from homophobic elements and from those who were loyal to the claimant.

The claimant countered that there was no good reason for the witness not to give evidence and that the admission of hearsay evidence would be contrary to the interests of justice, and could breach his right to a fair hearing.

The High Court quashed the FTPP’s decision. Lord Justice Laws and Mr Justice Stadlen held that the decision to admit hearsay evidence was irrational, and that it breached Bonhoeffer’s Art 6 right to a fair hearing.

Stadlen J said the allegations against Bonhoeffer: “Could hardly be more serious...If proved, they would have a potentially devastating effect on his career, reputation and financial position…not only is this a classic case of one person’s word against another but because the other alleged victims live in Kenya, neither the claimant nor the FTPP nor the GMC has any legal power to compel their attendance…It is hard to imagine circumstances in which the ability to cross-examine the uncorroborated allegations of a single witness would assume a greater importance to a professional man faced with such serious allegations.”

Niall Dickson, chief executive of the GMC, said: “It is important to note that the judicial review was on a narrow point of law about the admissibility of some of the evidence. The GMC case remains open and therefore it would be inappropriate to comment further on the details.”