Putting the Cart Before the Horse? Assessing the Credibility of Complaints Before Complainants in Disciplinary Proceedings.

A recent appeal before the High Court once again emphasises the importance of disciplinary tribunals assessing the credibility of complaints rather than the credibility of the complainant. In Khan v General Medical Council [2021] EWHC 374 (Admin), Knowles J found a fact-finding analysis undertaken by the Medical Practitioners’ Tribunal (MPT) was fundamentally flawed in judging the complainants credible before first assessing the credibility of their complaints. The Court quashed the Determination and sanction imposed by the MPT. The case stands as a further reminder of the importance of Dutta principles in disciplinary proceedings. For further detail, please see the recent article by John Brown, here.

Facts.

Mr Khan (‘the Appellant’) worked as a Consultant Orthopaedic Surgeon. A number of complaints were made against him and subsequently reported to the General Medical Council (‘GMC’). The complaints centred on his behaviour to three female members of staff, who alleged that the Appellant had behaved in an inappropriate and sexually-motivated way.

The complaints prompted various strands of litigation, including in the Employment Tribunal and Crown Court. The Appellant was successful before the Employment Tribunal in a claim for unfair and wrongful dismissal and acquitted before the Crown Court on a single charge of sexually touching one of the complainants.

The MPT brought its own proceedings, which began on 25 February 2019 and occupied 35 days of evidence. The issues it addressed were relatively straightforward – whether, on the balance of probabilities, the allegations made by the complainants against the Appellant were founded and, if so, whether the Appellant’s behaviour was sexually-motivated.

The MPT concluded that the three complainants were credible and that the complaints were therefore found. It found that the Appellant’s fitness to practise was impaired as a consequence. On 20 July 2020, the MPT determined that the Appellant’s name be erased from the Medical Register.

The High Court.

Ten grounds of appeal were lodged by the Appellant before the High Court. However, for the sake of proportionality, Knowles J did not consider all of them. Rather, the Court focussed on how the MPT analysed the facts underpinning the complaints made against the Appellant.

The Court reminded itself of the importance of not interfering lightly with findings of fact: after all, an appellant court does not have the privilege of assessing live witnesses.

Nevertheless, the Court found that the MPT adopted an improper approach to fact-finding by first considering the credibility of each of the three complainants before then turning to address the credibility of their complaints. This approach flew in the face of the approach established in Dutta where it was held that a witness’ credibility was not to be determined with primary reference to her demeanour.

In the present case, Knowles J held that the MPT accepted the credibility of the complainants first and thereby gave insufficient consideration to the nature of their complaints and the challenges the evidence posed to the credibility of those complaints. Given that one of the complainants had admitted lying on oath, the Court found that the MPT should have adopted a cautious and circumspect approach. This did not happen, however. Oddly, the MPT did not address substantive aspects of the evidence heard on that complainant’s credibility.

Indeed, Knowles J mused that the MPT through its methodology had, in effect, reversed the burden of proof on the Appellant: by first deciding, without considering each of her allegations, that one of the complainants was ‘genuine, sincere and credible’, the Tribunal appeared to place the burden on the Appellant to displace the MPT’s finding. According to the Court, the MPT had erred in making, ‘at the outset, a global assessment that [a complainant] was telling the truth based impermissibly on her demeanour.’

Knowles J thereby concluded that the MPT had adapted a fundamentally flawed methodology. The MPT Determination was quashed, as was the finding of impairment and the sanction of erasure.

Commentary.

The Court’s decision provides a further statement – if one was needed – of the importance of evaluating the credibility of a professional complaint with reference to the complaint itself, not merely the demeanour, character of persuasiveness of the complainant. As Knowles J made clear, it is inappropriate for a disciplinary tribunal when acting as fact-finding to make bald declarations at the outset before considering the complaints in detail. The risk is that a fact-finder is beguiled into concluding something which, in fact, it ought to take a more anxious and circumspect approach to.

Ryan Ross is a third-six pupil at Farrar’s Building.

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