Judgment date: 12 June 2013

Relevant hearsay evidence admitted when fair to do so

S, a pharmacist, faced allegations before the General Pharmaceutical Council (GPhC) Fitness to Practise Committee (the Committee) that he had been dishonest for (i) failing to repay his employer money that had been paid to him in error and (ii) dispensing repeat prescriptions without the consent of patients. S did not attend the hearing and was not represented. The Committee, having considered the GPhC’s evidence, erased S’ name from the Register of Pharmacists.

S appealed the Committee’s decision and applied to adduce fresh evidence at a new hearing. He submitted that the Committee failed to apply the GPhC (Fitness to Practise and Disqualification Rules) Order of Council 2010, specifically rule 18 and rule 24, on the basis that the rules do not permit the admission of hearsay evidence.

S submitted that the Committee’s consideration of evidence from patients who did not attend the hearing was unfair.

The appeal was dismissed. The Administrative Court did not consider rule 18 to provide assistance in that it was a strictly procedural rule and therefore was not relevant to the admissibility of evidence. The Court did not consider rule 24 to be of assistance either, on the basis that it gave the Committee reign to consider the admission of hearsay evidence on the basis of its relevance and fairness.

The Court held that the Committee was entitled to admit any evidence that was relevant as long as it was fair to do so. The Committee had taken into account the reasons for each patient witness’ non-attendance, considered the evidence to be relevant and therefore properly concluded it was fair to admit that evidence. Applying the case of R. (on the application of Bonhoeffer) v General Medical Council [2011] EWCH 1585 (Admin), [2012] I.R.L.R 37 the Committee’s decision to allow the hearsay evidence could not be faulted.

It was further held that the new evidence that S sought to introduce could have reasonably been obtained for the initial hearing. S had chosen not to attend that hearing and the Court did not consider the new evidence would have made much difference to the Committee’s decision in any event.

The full transcript is awaited in this case. The principles seem clear: where hearsay evidence has been properly considered for its relevance, the Committee is entitled to admit that evidence so long as its admission would not cause unfairness to the Registrant. In this case, the appellant had deliberately absented himself from the fitness to practise hearing and therefore waived his right to cross-examine the witnesses.