Emmanuel v South Gloucestershire Primary Care Trust & Anor

In a disciplinary or regulatory hearing, fairness may require a principal witness’s evidence to be tested where it is fundamental to disputed issues of fact. Hearsay evidence is not automatically inadmissible merely because facts are contested. The tribunal must consider the circumstances, including the witness’s vulnerability or reluctance to attend, and must explain how the absence of oral evidence affects its assessment. Failure to address those matters may amount to an error of law. Tribunals should also avoid sitting hours so extended that the fairness of evidence, submissions or deliberation may be compromised.

This was a statutory appeal under section 11(1) of the Tribunals and Inquiries Act 1992 against the decision of the Family Health Services Appeal Authority directing the appellant’s removal from a medical performers list on grounds of unsuitability.

The appellant accepted that he had had a sexual relationship with a former patient and fathered a child, but disputed when the relationship began and whether she was still his patient. The Authority relied on typed interview notes because the former patient did not attend to give oral evidence. The central issue was whether the Authority’s treatment of that untested and disputed evidence was procedurally unfair.

1. Appeal allowed. The decision of the Family Health Services Appeal Authority was quashed and the appeal was directed to be redetermined by a fresh panel.
2. Hearsay evidence concerning a disputed fact is not automatically inadmissible. Ordinarily, the tribunal may take it into account while allowing for its hearsay character when assessing weight. However, where the evidence is fundamental to the decision, fairness may require the person affected to have an opportunity to test it by cross-examination. What fairness requires depends on the circumstances: SSHD v Sim & Parole Board [2003] EWCA Civ 1845.
3. The Authority recognised that oral evidence would have enabled the appellant to test the former patient’s account, but did not assess her asserted vulnerability or reluctance to attend. Nor did it explain how the absence of oral evidence affected its conclusions that her written evidence was reliable and preferable to the appellant’s evidence. Given the fundamental importance of the date on which the relationship began, that omission was an error of law.
4. The circumstances were materially different from Secretary of State for Health v C [2003] EWCA Civ 10, where the tribunal had been given an explanation for the witness’s absence and was required to take that absence into account.
5. The challenge concerning undisclosed handwritten notes failed. The Authority was entitled to rely on evidence that the typed notes accurately reflected the interviews and to refuse a request for the handwritten notes made on the hearing day.
6. The judge considered that a hearing continuing until 7.45 pm, including submissions, should be avoided where possible. This observation was not necessary to the disposition, because the decision was quashed on the evidence issue.

1. High Court (Administrative Court): allowed the statutory appeal, quashed the Family Health Services Appeal Authority’s decision and directed redetermination by a fresh panel.
2. Family Health Services Appeal Authority: dismissed the appellant’s redetermination appeal and directed his removal from the medical performers list.