MPTS erred in its approach regarding the credibility of witnesses when making a finding of impaired fitness to practise and erasing Mr Khan from the register.

Khan v General Medical Council (Rev 1) [2021] EWHC 374 (Admin) (02 March 2021)

The GMC brought the disciplinary proceedings against Mr Khan following complaints from three female members of staff who made a number of complaints about sexually motivated physical and verbal conduct by Mr Khan.

Mr Khan maintained that none of the alleged incidents had ever happened, at least as described by the three complainants. His case, in summary, was that apart from one episode of innocent physical contract, which had not been sexually motivated and which the complainant had exaggerated and embellished, the allegations against him were completely untrue and had never taken place.  He said the complainants had been encouraged to give false evidence against him by senior Trust managers in order to get rid of him because they viewed him as a troublesome employee.

MPTS

The MPTs proceedings began on 25 February 2019 and occupied 35 days, spread over a number of months. It deliberated for six days. Although a large quantity of oral and written evidence was adduced, the issues for the MPT were, in many ways, straightforward. They were whether, in respect of each of the allegations made by the complainants, it was satisfied on the balance of probabilities that the allegation had occurred as described and, if it was so satisfied, was it also satisfied on the balance of probabilities that it was sexually motivated?

The Tribunal said, amongst other things, in its determination:

Mr Khan did not make any admissions to the Allegation[s]. The Tribunal is therefore required to determine whether Mr Khan behaved inappropriately towards Miss A, Miss C and Miss D as alleged, and whether his actions were sexually motivated.”

The Tribunal considered Mr Khan’s position that Miss A and Miss C fabricated their complaints and were influenced and encouraged by the Trust to do so in order to support the Trust’s position not to re-employ Mr Khan. It carefully considered the position with regard to Miss A and Miss C and could identify no evidence of a conspiracy or encouragement by the Trust to support the position as was suggested.

The Tribunal was satisfied that there was no evidence that these allegations were fabricated by either claimant at the behest of the Trust. Further, it has seen no evidence to identify any individual or group of individuals as the instigators or co-ordinators of such a fabrication or of any conspiracy against Mr Khan.

The Tribunal was not persuaded on the basis of the evidence before it that the Trust management team influenced or encouraged Miss A or Miss C to fabricate their complaints in relation to the allegations before it. The Tribunal noted that the Trust requested anyone who had a complaint to come forward and speak up, as might be expected in any organisation where allegations of this kind were alleged, however there was no evidence the Trust induced, requested, persuaded, or enticed anyone to fabricate complaints. The Tribunal therefore did not accept the assertion of a Trust conspiracy against Mr Khan in relation to the allegations made by Miss A and Miss C.

The Appeal

Technically, under the legislation (s 40 of the Medical Act 1983) an appeal is against, in this case, the order for erasure but in Mr Khan’s case, the main focus is the MPTS’s determination of the facts.

Broadly stated, the grounds of appeal were:

1. The Tribunal failed to have any or any adequate regard to the good character of Mr Khan; and
2. The Tribunal misstated the evidence, omitted to consider other material evidence, failed to resolve significant conflicts in the evidence and/or came to conclusions on the facts which did not reflect the available evidence.

A central theme of many of the submissions made by the appellant, Mr Khan, was that the MPTS simply had not grappled with, and so not reached proper conclusions upon, important aspects of the evidence which he said undermined the credibility of the three complainants, and Miss C in particular. He said that ‘pivotal’ to the merits of this appeal was the question whether the Tribunal had addressed the defence case, either adequately, or at all.

Whilst the first ground of appeal was turned down, on the matter of the second ground however, Knowles J commented that:

“But I have concluded that the Tribunal’s reasons betray significant errors of reasoning…What I have concluded is that the Tribunal adopted a fundamentally erroneous methodology in its approach to the evidence, such that its Determination cannot stand.”

The central pillar of Knowles J’s determination on the second ground of appeal surrounds the evidence and credibility of one of the complainants, Ms C.

Ms C previously admitted to lying under oath in relation to employment tribunal proceedings against Mr Khan.  Knowles J noted that “it seems to me that given Miss C’s proven willingness to lie on oath, the most careful and accurate scrutiny of her evidence was called for, adopting proper fact-finding methodology.”

On the MPTS approach to the evidence of Ms C, Knowles J commented that:

In relation to Miss C, the Tribunal’s approach was first to consider her credibility generally and, having done that, and found her to be ‘genuine, sincere’ and ‘credible’, to consider the individual allegations against Mr Khan.  But by then its conclusions were foregone because of what it had already decided in the first section that she was ‘genuine’. When its reasons for concluding that Miss C was ‘credible’ are examined, it is clear that the Tribunal fell into the precise trap which Dutta, supra, warned against.

By beginning with the question of her credibility generally and without reference to the specific allegations she had made … it seems to me that the Tribunal was, in effect, beginning its analysis by asking ‘Do we believe her … ?’, which is the very thing which Warby J said in Dutta should not be done.

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.

I think it is obvious that the Tribunal’s general conclusion that Miss C was credible (ie, telling the truth) meant that its findings on each of her allegations against Mr Khan were a foregone conclusion.

The MTPS’s approach to the credibility of evidence in relation to the other two complaints were equally criticised by Knowles J who ultimately concluded that

“For the reasons I have given, this appeal is allowed and the sanction of erasure is quashed.”