R (on the application of Bonhoeffer) v General Medical Council
 EWHC 1585 (Admin)
The High Court has quashed the decision of the fitness to practise panel of the General Medical Council (GMC) to allow hearsay evidence in this case. It was held that, in the circumstances of the case, the panel's decision was irrational and a breach of the registrant's right to a fair hearing.
Dr Bonhoeffer (B) was a consultant paediatric cardiologist at Great Ormond Street Hospital. He was accused by the GMC of sexually abusing boys in Kenya. The majority of the charges against B came from the evidence of one witness, witness A.
Witness A lived in Kenya and was willing to give live evidence at the hearing against B. The GMC's view was that if A gave oral evidence in the hearing, there was a significant risk of his being harmed as a result of homophobic elements in Kenya and by those wanting to exact revenge on him for giving evidence at the hearing.
The GMC applied to admit A's evidence as hearsay evidence. The panel found that the evidence would not be admissible in criminal proceedings under the Criminal Justice Act 2003, but granted the application on the basis of the GMC's fitness to practise rules. Rule 34 states that the panel may admit any evidence, regardless of whether the evidence would be admissible in a court of law, as long as the panel considers the evidence is fair and relevant and is satisfied the admission of the evidence is desirable.
B applied for judicial review of the panel's decision on the basis that it was irrational and a breach of his right to a fair trail under Article 6(1) of the European Convention on Human Rights. B's case was that Article 6(1) meant that he should have the opportunity to cross-examine witness A. He also submitted that the panel had acted illegally in placing the public interest in protecting patients, maintaining public confidence in the profession, and upholding proper standards of behaviour above his right to a fair trail.
B's application was granted.
The court found that there was no absolute rule entitling registrants to cross-examine witnesses and neither was it automatically unfair to admit evidence which would be inadmissible in criminal proceedings.
However, it was held that on the facts of the case, the panel should have concluded that the general obligation of fairness imposed by the common law, Article 6, and Rule 34 meant that it would be unfair to admit the hearsay evidence.
The unfairness resulted from the seriousness of the allegations against B, the potential consequences for B if they were found proved, the fact that witness A was the sole witness in relation to most of the allegations and that witness A had repeatedly stated that he was willing to give live evidence.
LJ Laws stated that the more serious the allegation, the greater the importance of ensuring that the accused is afforded fair and proper procedural safeguards. He said that there is no public interest in a wrong result.