Final decision on Bonhoeffer: the financial legacy for the medical profession?

27 September 2012

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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On September 28th 2012 Jasmine Brown and Mary Page commented:

Where an allegation against a regulated professional has a cross –border element, there will always be added delay and procedural difficulties in investigating and then bringing the matter to a hearing. This case involved Mr Bonhoeffer’s conduct over a 13 year period, including whilst working in Kenya. It is interesting to speculate what might have happened had complaints been made at the time to the Kenyan Medical Practitioners and Dentists Board (MPDB) and the advantages to investigating and proceeding with evidence with Kenyan based witnesses. Could this have offered a short cut in relation to the GMC proceedings? Where a foreign regulator or authority has made a determination on matters relating to fitness to practice and that registrant thereafter works in the UK, the GMC will consider the content of that overseas determination.

An example where this happened is the recent decision of the Nursing and Midwifery Council Investigating Committee to impose an 18 month interim suspension order on Mr Roberts, a nurse registered in Wales, pending investigation of misconduct allegations that occurred while Mr Roberts’ was practising in New Zealand. The NMC committee considered that the New Zealand Health Disciplinary Tribunal’s reasoning for suspending Mr Roberts meant that this interim suspension order was necessary for the protection of the public and in the public interest.

Returning to the facts surrounding the Bonhoeffer case however, given the nature of the complaints and the fact that homosexuality is illegal in Kenya, in this instance, bringing the matter to the attention of the MPDB would likely have resulted in police action against the complainants. With these facts then, speculation really is idle.

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