Background briefing re relying on hearsay evidence (see also wording for Report
to IC)
In the recent High Court judgment R (Bonhoeffer) v General Medical Council
[2011] EWHC 1585 (Admin) the Court found it “irrational and a breach of the
respondent’s right to a fair trial” for a Fitness to Practice Panel of the GMC to
admit hearsay evidence under its own rules, having determined that such
evidence would not be admissible under the criminal rules of evidence.
The case however does not provide an automatic answer as to whether a case
can be brought which is reliant on hearsay evidence. In its judgment the Court
underlined (at paragraphs 39 to 40) the fact-specific nature of the challenge,
described as: “dependent on the application to the particular and very unusual
facts of this case of the general obligation of fairness imposed on the FTPP
having regard to general common law principles, the Claimant’s Article 6 rights
and the terms of Rule 34”.
The approach to hearsay evidence in a case must always reflect the particular
circumstances of the case and what would be considered fair in those
circumstances.
The GMC’s rules (at Rule 34(2)) expressly state:
“Where evidence would not be admissible in criminal proceedings in England, the
Committee or Panel shall not admit such evidence unless, on the advice of the
Legal Assessor, they are satisfied that their duty of making due inquiry into the
case before them makes its admission desirable.”
The NMC’s Rules are slightly different and at Rule 31 (of Schedule 1 to the
Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council
2004/1761) state:
“Upon receiving the advice of the legal assessor, and subject only to the
requirements of relevance and fairness, a Practice Committee considering an
allegation may admit oral, documentary or other evidence, whether or not such
evidence would be admissible in civil proceedings (in the appropriate Court in that
part of the United Kingdom in which the hearing takes place).”
In Ogbonna v NMC [2010] EWCA Civ 1216, which also concerned the admission
hearsay evidence the Court of Appeal stated that:
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“in the absence of a problem in the witness giving evidence in person or by video
link, or some other exceptional circumstance, fairness requires that in disciplinary
proceedings a person facing serious charges, especially if they amount to criminal
offences which if proved are likely to have grave adverse effects on his or her
reputation and career, should in principle be entitled by cross-examination to test
the evidence of his accuser(s) where that evidence is the sole or decisive
evidence relied on against him.” (paragraph 84)
The Ogbonna case looked carefully at the reason why a witness was not present
and examined whether there was a “compelling reason” for the witness’ non
attendance.
In considering whether there is a case to answer in when it would be dependent
on the admissibility of hearsay evidence the NMC want us to tackle the issues of
whether there is a realistic prospect of the hearsay evidence being admitted.
If we do not think it would be admitted, and the charge or sub charge is
reliant on this evidence, then we are to advise no case to answer.
We should briefly outline why we do not think the hearsay evidence will be
admitted before reaching our conclusion.
As the proposed draft wording for the report reflects, we should remember that at
the NMC there is an absence of important safeguards on the admissibility of
hearsay evidence which would normally exist, particularly in the criminal context.
We should indicate whether:

we have been able to investigate the credibility of the maker of the
statement

there is a compelling reason for the witness not being able to give direct
evidence

the hearsay evidence would be the sole or decisive evidence relied on
against the Registrant

the serious nature of the potential charge is likely to have grave adverse
effects on [his/her] reputation and career [but NB the NMC has indicated
that nearly all cases where there is a case to answer on impairment
have the potential for grave adverse effects on the registrant’s career
so this is unlikely to be the reason to conclude the Committee would
let in the hearsay],
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If, on balance, we consider that fairness requires that the Registrant should be
able to cross-examine the witness to test the evidence of his accuser(s) and that
there is no real prospect of the hearsay evidence being admitted (since a fair
hearing is unlikely to be possible) then we should advise accordingly.
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