In two recent High Court judgments the spotlight fell on the topic of cross-examination in hearings before the Medical Practitioners Tribunal (MPT). Neither judgment flatters the Tribunal proceedings.
The first judgment
The first case involved a challenge brought by a doctor to the findings of sexual motivation made by the Tribunal in respect of his dealings with a female patient. Although the appeal was brought on a number of grounds, Mostyn J’s energies were directed primarily to an assessment of the way in which the prosecution case was put to the registrant in cross-examination, or perhaps more accurately; the way the case was not put. He characterized the first ground of appeal as relating to ‘…the failure in this case to test the key allegation, namely sexual motivation, by any cross-examination.’ (our emphasis)
Mostyn J’s surprise at the approach which had been adopted to cross-examination is evident from the following observation:
‘There was no direct challenge to Patient B that what she was saying about earlier consultations was untrue. This is quite hard to understand, but my surprise is much surpassed by the fact that the appellant was asked no questions at all about this allegation in his cross-examination beyond the peroration which went as follows:
‘Q: Did it cross your mind whether Patient B was pretty?
Q: Your actions, were they sexually motivated at all?
A: Not at all; entirely professional.’
And that was it.’
Having noted the prosecutions failure to put matters squarely to the accussed, Mostyn J identified two ‘elementary axioms’ for regulatory prosecutors to note:
‘First, where a professional person is accused of a serious misconduct it is essential that the allegation is fully particularised. The accused professional must know exactly what is said against him. Second, in such circumstances an accused professional should, save in rare cases, have the accusations put to him squarely in cross-examination, so that by that time-honoured process their truth, or falsity, can be discovered.’
Evidential value of cross-examination
In stressing the evidential value of cross-examination Mostyn J observed:
‘The content of the doctor’s replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true.’
It is worth noting that senior members of the judiciary have questioned the value of demeanour in assessing the evidence of witnesses. In a leading decision, addressing the right to cross-exam an accuser, Dyson L noted:
‘… as Lord Bingham said in The Business of Judging (2000) at p 9, “the current tendency is (I think) on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty”. At pp 9-13, he developed this view and supported it with references to a number of statements by judges and advocates.‘
The second judgment
The second case illustrates that the value of cross-examination goes beyond subjective assessments of demeanour.
In this case the focus was on the cross-examination of the complainant during MPT proceedings which the defendant GP did not attend. The High Court was determining a civil claim which flowed from findings of the MPT made against a GP; the particulars of claim having been ‘effectively lifted from the allegations before the FTP Panel’. That Panel had determined to strike the GP off the register.
The MPT hearing had garnered significant media coverage at the time given the unusual subject matter. The GP was found to have used his professional position to influence a patient to adopt his religious beliefs and engage in religious practices.
In the civil claim the first defendant was the GP practice where the claimant had first encountered the GP, in his capacity as a locum. The Claimant patient gave evidence in the High Court proceedings, as she had during the MPT hearing.
In the claimant’s attempt to establish vicarious liability on the part of the practice, Spencer J had been presented with evidence of the findings made by the MPT. His assessment of the claimant’s credibility could hardly have contrasted more starkly with the assessment conducted by the MPT. Noting that the MPT had determined that the Claimant’s evidence was clear and fluent and ‘on the whole…remarkably consistent’ Spencer J went on to lament the absence of any proper challenge to her evidence by the Tribunal.
Spencer J’s departure from the MPT’s findings started with some of the foundational matters, which did not depend on the Claimant’s evidence:
‘…contrary to the finding of the FTP Panel and the allegation in the Particulars of Claim, there is no evidence that Dr O’Brien was ever employed by the surgery.’
Assessing the Claimant’s evidence, Spencer J noted that some allowance had to be made for the Claimant’s emotional lability, nonetheless he was unimpressed by her evidence, albeit noting that he formed the impression that ‘…she is an intelligent woman.’
‘I regret that I found her a deeply unsatisfactory witness and in that regard I find myself at odds with the FTP Panel…’
Importantly, Spencer J’s rejection of the Claimant’s evidence was not reliant solely on his appraisal of her demeanour in evidence but relied on the objective assessment of other evidence.
‘Time and again Mrs Brayshaw contradicted herself and gave answers which were inconsistent with what she had said in her statements and then, when taken to the statements, gave further answers which were in turn inconsistent with the answers she had just given. Furthermore, many of her assertions in her evidence were not only unsupported by documentary evidence, but, in many cases, contradicted by the contemporaneous documents.’
Spencer J described one aspect of her case as ‘wholly unbelievable’, concluding:
‘… I came to the conclusion that there was very little of Mrs Brayshaw’s evidence that I could rely on. It seemed to me that, with his cross-examination, Mr Stagg effectively destroyed the Claimant’s credibility and she was not a witness upon whom any reliability could be placed. This distinguished her evidence at trial from the evidence she had given before the FTP Panel where she had not been subjected to the same cross-examination by reference to a careful forensic comparison with the documents. Thus, I do not find myself persuaded by the findings of the FTP Panel as to what was proved or not proved and I make up my own mind as to what conduct by Dr O’Brien has been proved.’
The common theme in both of these cases was an apparent failure to test the evidence presented to the MPT at the fact-finding stage of the enquiry. Whilst these decisions will have made unwelcome reading for the MPTS, it would be wrong to generalise too widely from these examples. Nonetheless, in light of Spencer J’s observations it is striking how confident in their assessment of the Claimant’s reliability the MPT appeared to be. It should always be remembered that the confidence with which conclusions are expressed is not necessarily a good barometer of the accuracy of those conclusions.