The High Court has just adjudicated on a challenge to a decision of the General Medical Council’s Fitness to Practise Panel (FTPP) decision. In the case of R (on the application of Bonhoeffer) v General Medical Council, the High Court quashed the General Medical Council’s (GMC) FTPP’s decision to admit evidence from a witness resident in Kenya whom the GMC do not wish to bring to London to testify. The court held that the FTPP’s decision to admit the evidence violated Professor Bonhoeffer’s right to a fair hearing under Article 6 (1) of the European Convention on Human Rights.

The case raised questions on the admissibility of hearsay evidence, which, under the various regulatory regimes, can be received in evidence by disciplinary panels under their procedural rules. On 21 June 2011, Laws LJ and Stadlen J quashed the FTPP’s decision to admit the hearsay evidence. The disciplinary proceedings had been halted since last November pending the outcome of the legal challenge.

It had been argued, on behalf the GMC, that the main witness would be at risk of being harmed in his own country if he were to be identified in proceedings as having engaged in homosexual activity with Professor Bonhoeffer, as is alleged. The witness in question, a Kenyan man, was said to have been the single source of the majority of the allegations. The judges declared as “irrational” the FTPP’s conclusion that it was fair to admit the hearsay evidence. The judgment also said it breached Professor Bonhoeffer’s right to a fair hearing under the European Convention of Human Rights.

The court heard that the witness himself had expressed a willingness and ability to give live oral testimony. In addition he had claimed there were other victims of alleged abuse but those claims were not supported by other witnesses, according to counsel for Professor Bonhoeffer. In the ruling, Stadlen J said: “The more serious the allegation, the greater the importance of ensuring that the accused doctor is afforded fair and proper procedural safeguards.”

The issue of hearsay was considered fairly recently in the case of Ogbonna v Nursing and Midwifery Council , where the Conduct and Competence Committee had allowed the statement of the main witness (who did not attend for cross examination) to be admitted on the basis that she no longer lived in the UK and so was not available. The appeal judge held that the admission of the evidence had been unfair. In that case, there had been no efforts to secure the attendance of the witness in person or by videolink. In the Ogbonna case, (which was referred to by Stadlen J in Bonhoeffer) the appeal judge said that the resolution of the “fairness” issue would necessarily be fact sensitive. It was also reiterated that the criterion of fairness is relevant to whether a statement should be admitted at all, not just to the weight that should attach to it if it is. Article 6 itself was not considered in that case.

The circumstances of the Bonhoeffer case were unusual and the court referred to several aspects of the decision of the FTPP, for instance the FTPP had not been satisfied to the criminal standard that it was not reasonably practicable to secure the attendance of the witness in question to give oral testimony. Notwithstanding that, the court was not clear as to the FTPP’s rationale for the finding that it was nevertheless fair to admit the hearsay evidence. Neither had the FTPP taken up the GMC’s invitation to read the evidence and the court did not therefore see how the FTPP could be in a position to say that the evidence had “clear and probative value”.

Despite the recent ruling, the disciplinary proceedings against Professor Bonhoeffer remain live and he remains suspended under an interim order.