Bonhoeffer, R (on the application of) v General Medical Council

Factual and Procedural Background

This opinion concerns an application for judicial review of a decision by the Fitness to Practise Panel ("FTPP") of the General Medical Council ("GMC") to admit hearsay evidence of a witness ("Witness A") in disciplinary proceedings against the Appellant. The Appellant, a distinguished consultant paediatric cardiologist formerly employed at The Great Ormond Street Hospital for Children, faced allegations of serious sexual misconduct in Kenya. The GMC sought to rely on hearsay evidence from Witness A, a young man residing in Kenya, despite Witness A's willingness and ability to give live oral testimony in the UK. The GMC's application to admit hearsay evidence was premised solely on a claimed risk of harm to Witness A if he gave oral evidence. The FTPP admitted the hearsay evidence, leading to this judicial review challenge.

Legal Issues Presented

1. Whether the FTPP was correct to admit hearsay evidence from Witness A under the relevant provisions of the Criminal Justice Act 2003 and the General Medical Council (Fitness to Practice) Rules 2004.
2. Whether the admission of hearsay evidence was fair under Rule 34(1) of the 2004 Rules and consistent with the Appellant's right to a fair hearing under Article 6(1) of the European Convention on Human Rights (ECHR).
3. Whether the FTPP's decision that it was desirable to admit hearsay evidence under Rule 34(2) was rational.
4. The extent to which the risk to Witness A justified the admission of hearsay evidence instead of live oral testimony.

Arguments of the Parties

Appellant's Arguments

• The FTPP was correct in concluding that the hearsay evidence would not be admissible in criminal proceedings under sections 116(2)(c) or 114(1)(d) of the Criminal Justice Act 2003.
• The FTPP's decision to admit hearsay evidence under Rule 34(2) as "desirable" was irrational.
• The FTPP's decision that admission of hearsay evidence would be "fair" under Rule 34(1) was irrational.
• The admission of hearsay evidence breached the Appellant's Article 6(1) ECHR right to a fair hearing, as it deprived him of the opportunity to cross-examine his accuser.
• There was no good reason why Witness A could not give live evidence, given his availability and willingness.
• The GMC's decision not to call Witness A was based on an inaccurate and incomplete assessment of the risk to Witness A.
• The loss of the video and audio tapes of Witness A's interviews by the police deprived the Appellant of the opportunity to assess Witness A's demeanour.
• The hearsay evidence was the sole evidence supporting most allegations, making cross-examination critical to fairness.

Respondent's (GMC's) Arguments

• Witness A faced a significant risk of harm if giving live oral testimony, justifying the admission of hearsay evidence under section 116(2)(c) or, alternatively, under section 114(1)(d) of the 2003 Act.
• Even if not admissible under criminal law gateways, the FTPP had discretion under Rule 34 to admit the hearsay evidence as it was fair and relevant.
• The FTPP properly balanced the Appellant's rights against the public interest in investigating serious allegations and protecting patients.
• The Appellant could challenge the hearsay evidence by cross-examining other witnesses and adducing evidence to undermine Witness A's account.
• There is no absolute rule requiring cross-examination of accusers in disciplinary proceedings, and fairness must be assessed on the facts.
• The GMC made reasonable efforts to secure Witness A's attendance and relied on police advice about the risk to Witness A.
• The absence of certain criminal trial safeguards in FTPP proceedings does not render the process unfair.
• The Appellant's challenge was premature and speculative, as unfairness might not arise depending on how the hearing proceeds.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the FTPP's decision to admit hearsay evidence in light of the statutory framework under the Criminal Justice Act 2003 and the GMC Fitness to Practice Rules 2004, as well as the Appellant's rights under Article 6 of the ECHR. The Court noted that the FTPP found the hearsay evidence inadmissible under criminal law gateways (sections 116(2)(c) and 114(1)(d)) due to insufficient evidence establishing that it was not reasonably practicable to secure Witness A's attendance and concerns over the reliability of the risk assessments presented.

Despite this, the FTPP admitted the hearsay evidence under Rule 34(2) and (1), concluding it was desirable, fair, and relevant, primarily because of the serious nature of the allegations and the public interest in investigating them. The Court found this conclusion irrational and unlawful, as the FTPP failed to make any positive findings on the critical question of whether the risk to Witness A was significantly greater if he gave oral testimony rather than hearsay evidence. The FTPP's scepticism towards the evidence of risk and failure to balance Witness A's declared willingness to testify were significant omissions.

The Court considered established principles that fairness in disciplinary proceedings involving serious allegations generally requires the opportunity for the accused to cross-examine critical witnesses if they are available. The Court found no compelling reason why Witness A could not give live evidence and emphasised the importance of cross-examination given that Witness A's evidence was the sole or decisive evidence on most allegations.

The Court also reviewed relevant case law, including the statutory regime governing hearsay evidence in criminal proceedings, and concluded that although the FTPP has discretion to admit hearsay evidence, that discretion must be exercised fairly. The FTPP failed to adequately consider the absence of safeguards present in criminal trials and the impact on fairness of admitting untested hearsay evidence in these circumstances.

Ultimately, the Court held that the FTPP's admission of hearsay evidence without permitting Witness A's oral testimony was unfair and breached the Appellant's Article 6(1) right to a fair hearing. The decision to admit the hearsay evidence was therefore quashed.

Holding and Implications

The Court quashed the FTPP's decision to admit the hearsay evidence of Witness A.

The direct effect of this decision is that the FTPP's determination allowing hearsay evidence admission is set aside due to unfairness and breach of the Appellant's right to a fair hearing under Article 6(1) ECHR. The Court emphasized that in disciplinary proceedings involving serious allegations where the accuser is available and willing to testify, fairness ordinarily requires the opportunity for cross-examination. No new precedent was established beyond reaffirming the application of established principles of fairness and Article 6 rights in regulatory disciplinary contexts. The GMC retains the option to call Witness A to give live evidence, and the proceedings must respect the Appellant's procedural rights accordingly.