The case of Khan v GMC serves as a reminder for healthcare professionals of how complex and lengthy proceedings, in numerous tribunals, can arise from the same factual allegations. It also serves as a warning for tribunals of the dangers of reliance on witness demeanour.

“[The Tribunal] had simply looked at Miss C’s evidence alone and, as I have said, based in significant part on the way she had given that evidence – an impermissible approach – had decided she was telling the truth before it had even begun to consider the specific allegations she had made. The fundamental point is that the Tribunal could not have reached a reliable conclusion on Miss C’s credibility without considering, as part and parcel of that determination, all of the evidence which went to the question of credibility. That, it did not do”[1]

Introduction

The defendant in this case appeared before the Medical Practictioners Tribunal [“the Tribunal”] in 2020, in a hearing that lasted several weeks, to answer allegations which had already been the subject of an internal disciplinary hearing – resulting in his dismissal for gross misconduct in 2014; an unsuccessful internal appeal; a successful claim for unfair dismissal; and a Crown Court trial – resulting in acquittal in 2016.

After approximately seven years of ongoing proceedings the defendant was erased by the Tribunal following findings of sexual misconduct relating to three complainants. The High Court quashed that decision, although it stressed that it was not determining that the complainants were not credible.

The Decision

The Tribunal considered allegations from three female complainants relating to alleged comments and physical contact which were said to be sexually motivated. Most of the allegations were found proved. The focus of the High Court’s decision was on the Tribunal’s erroneous approach to assessing the evidence of the complainants. Specifically, the apparent determination of their credibility as witnesses based on impressions of their demeanour, rather than the content of their evidence in the context of the evidence as a whole; and an associated failure to resolve significant conflicts of evidence, specifically where the complainant’s evidence conflicted with the unchallenged testimony of other prosecution witnesses.

It was particularly noteworthy that one of the complainants, Miss C, admitted giving false evidence on oath before the Employment Tribunal. As the High Court recognized, credibility is divisible – it is possible to accept a witness’s evidence as credible on one point but not on another.

“I expressly agreed in oral submissions that it is open to a fact-finder, depending on the facts, to conclude that although a witness has lied about X, it believes her in relation to Y; in other words, credibility can be divisible.”

However, the Court was critical of the Tribunal’s approach which involved determining the witness’s credibility before assessing the substance of their evidence in the context of the evidence overall, including that of the defendant.

“The Tribunal’s language shows that its reasons were based in significant part on the twin fallacies that ‘the more confident another person is in their recollection, the more likely it is to be accurate’ and ‘because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth’ (per Gestmin, supra). I also consider its reasons violated Warby J’s second stricture in Dutta, supra, [42], that ‘Reliance on a witness’s confident demeanour is a discredited method of judicial decision making’. That must be all the more so in the case of a witness who had admitted lying on oath on a previous occasion.”

The same basic error – overreliance on demeanour – was also evident in the Tribunal’s approach to the other two complainants.

This decision demonstrates key aspects of the High Court decision in Dutta v GMC[2] in action. In that case Warby J had identified the Tribunal’s error of principle in the following terms:

“42 … It is an error of principle to ask ‘do we believe her ?’ before considering the documents … Reliance on a witness’s confident demeanour is a discredited method of judicial decision making …”

Whilst successful challenges to the factual findings of the MPTS, or similar tribunals, will remain uncommon, such tribunals should take note of the dangers of placing significant reliance on demeanour in reaching conclusions about the witness’s credibility. They must always engage with the substance of the witness’ evidence and not just the manner in which it was given.