Lasting Powers of Attorney: recent key developments
On 25 September 2012, a Fitness to Practice Committee of the Medical Practitioners Tribunal Service concluded the long running case of the consultant paediatric cardiologist, Professor Bonhoeffer. The Panel found the registrant to have committed sustained and serious sexual misconduct against children and young people, including patients in his care, over a 13 year period. The result: a finding of impairment and a striking off order.
This case will be remembered by many practitioners, not so much for its facts and somewhat inevitable outcome, but for the Administrative Court’s stance on the question of the adduction of hearsay evidence. The registrant challenged the Panel’s decision to allow the GMC to rely on the hearsay evidence of a key witness (Witness A), who lived in Kenya, despite the witness having indicated both his ability and desire to give live evidence. The Court, in recognising that there was no general rule precluding the reliance on hearsay evidence, ruled that on the facts of this particular case (where the uncorroborated evidence of a single witness was being relied on to prove a serious allegation, yet the witness wanted to give evidence), the registrant should be given the opportunity to cross question the witness.
Properly deferring to the Court’s better judgement on the matter, the GMC duly called Witness A to give live evidence by video link at the hearing this week. Professor Bonhoeffer did not attend, was not represented and submitted no substantive representations in response to the allegation. All of this was his absolute entitlement and no criticism can or should be made of his decision to absent himself. The result however was that Witness A was never in fact cross examined by the registrant. Having fought so hard to be given the right to question the witness and face his accuser, the registrant chose not to avail himself of the opportunity to so do.
Few would argue with the decision of the Administrative Court in this case. Notwithstanding the almost automatic admissibility of hearsay evidence in most professional disciplinary regimes, it is axiomatic that a registrant facing serious allegations should be entitled, where circumstances permit, to cross question key witnesses who give evidence against them. What about the impact on other fee-paying registrants of such (frankly futile) satellite litigation; trips to the Administrative Court do not come cheap and the resources of regulators are finite. Doctors may find that they are footing the bill for this case in years to come.
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