Khan v General Medical Council (Rev 1)

On an appeal from a professional disciplinary tribunal, the appellate court must respect the tribunal’s advantage in seeing and hearing witnesses, but retains full responsibility to examine the material. It may intervene where the tribunal has adopted a fundamentally flawed fact-finding method. A tribunal should not decide credibility globally or rely materially on confident demeanour. It must consider each allegation against objective and contemporaneous evidence, evidential conflicts and the respondent’s case. Credibility may be divisible. Good character is relevant to credibility and propensity, although an express self-direction is not indispensable if the record shows that it was properly considered. Findings and consequential sanctions based on an unreliable methodology cannot stand.

Mr Khan, a consultant orthopaedic surgeon, appealed under section 40 of the Medical Act 1983 from findings by a Medical Practitioners’ Tribunal that his conduct towards three female members of staff was inappropriate and sexually motivated. The Tribunal determined the facts on 11 December 2019, found impairment on 22 June 2020 and directed erasure on 20 July 2020. Although formally directed at the erasure order, the appeal focused on the fact determination and the Tribunal’s treatment of good character, credibility, conflicting evidence and the defence case. The central issue was whether the Tribunal’s methodology and reasoning made its decision wrong or unjust because of a serious procedural or other irregularity.

The appeal was allowed. The Tribunal’s Determination of the Facts, finding of impairment and direction for erasure were quashed.

1. Under section 40 of the Medical Act 1983 and the Civil Procedure Rules 1998, the appeal was by way of rehearing, but was not a fresh trial or a rehearing of the evidence from scratch. The court retained full jurisdiction but had to give appropriate weight to the Tribunal’s specialist expertise and its advantage in seeing and hearing witnesses. The approach in Fish v General Medical Council [2012] EWHC 1269 (Admin), Yassin v the General Medical Council [2015] EWHC 2955 (Admin) and Gupta v General Medical Council [2002] 1 WLR 1691 was applied. Intervention remained appropriate where reasons or fact-finding methodology were materially flawed.
2. A tribunal must assess the specific allegations against the evidence as a whole. It should not begin with a global assessment of whether a witness is believable, or treat confident demeanour, sincerity or confidence in recollection as reliable substitutes for analysis of objective material, contemporaneous accounts, inconsistencies, competing evidence and the respondent’s case. This followed the principles explained in R(Dutta) v GMC [2020] EWHC 1974 (Admin) and illustrated by Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm).
3. The Tribunal had made global credibility assessments of all three complainants before analysing their allegations. It relied materially on demeanour and subjective descriptions such as sincerity, failed to confront significant conflicts of evidence and misstated evidence concerning two witnesses. Its conclusions about Miss C’s credibility had effectively predetermined its findings on her allegations. The cross-admissibility reasoning meant that the flawed approach could infect the whole determination.
4. Good character was relevant to credibility and propensity. However, a disciplinary tribunal need not reproduce a criminal-trial-style direction in its written reasons if the appellate court can infer from the directions, submissions and record that good character was properly considered. The first ground of appeal therefore failed, but the methodological errors required the determination and all consequential decisions to be quashed.

• High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was allowed. The Tribunal’s factual determination, finding of impairment and direction for erasure were quashed.
• Medical Practitioners’ Tribunal: The Tribunal determined the facts on 11 December 2019, found fitness to practise impaired on 22 June 2020 and directed erasure on 20 July 2020.