Professional Standards Authority for Health and Social Care v The General Medical Council & Anor

Evidence may be cross-admissible on two distinct grounds: propensity and rebuttal of coincidence. A tribunal must identify the ground relied upon and give a tailored direction. Propensity reasoning ordinarily requires a prior finding, to the relevant standard, that the other conduct occurred. Coincidence reasoning does not. It requires a holistic assessment of the allegations, after excluding collusion or contamination, to determine whether their similarity reduces the likelihood of an innocent explanation.

Admissibility depends on relevance, which requires sufficient connection and similarity between the facts alleged. The tribunal must distinguish admissibility from weight and must not elevate the similarity requirement by demanding a pattern or distinctive link. A failure to direct and apply itself in that way may render the decision wrong on a statutory appeal.

The Professional Standards Authority appealed under National Health Service Reform and Health Care Professionals Act 2002, section 29, against a Medical Practitioners Tribunal decision that Dr Neill Garrard’s fitness to practise was not impaired.

The allegations concerned sexually motivated and inappropriate conduct towards two vulnerable female patients treated separately in accident and emergency settings. The Tribunal rejected the allegations and concluded that the accounts were insufficiently similar to establish a pattern or support each other.

The appeal concerned whether the Tribunal had correctly directed itself on, and interpreted and applied, the law governing cross-admissibility of evidence, particularly where the evidence was relied upon to rebut coincidence.

1. The appeal was allowed on both grounds. The Tribunal’s decision of 13 December 2023 was quashed and the matter was remitted to a differently constituted Tribunal for a fresh decision applying the correct legal approach to cross-admissibility.
2. Cross-admissibility may arise because evidence establishes propensity or because it rebuts coincidence: [2008] EWCA Crim 1863. These grounds must be kept distinct. A tribunal must identify the ground or grounds relied upon and give directions tailored to the circumstances, rather than using an undifferentiated template: [2023] EWCA Crim 1384.
3. Admissibility is separate from weight. Evidence is admissible only if relevant, and relevance depends on whether there is sufficient connection and similarity between the facts of the allegations: [2006] EWCA Crim 2133. Once admitted, the tribunal must determine the weight to attach to it according to the applicable ground.
4. Where propensity is relied upon, a tribunal must ordinarily be satisfied to the relevant standard that the other allegation occurred before relying on it to infer propensity: [2019] EWCA Crim 1363; [2016] UKSC. Where coincidence is relied upon, no prior finding is required. The allegations must be considered holistically, with the defence explanation for coincidence, and the tribunal must exclude collusion or contamination before assessing whether their similarity makes coincidence or an innocent explanation unlikely: [2019] EWCA Crim 2287; [2024] EWCA Crim 200.
5. The Tribunal’s directions conflated propensity with coincidence. Its reasoning also treated proof of one allegation as a prerequisite to using it in relation to the other, and applied heightened formulations such as requiring a pattern, a distinctive link or the absence of very substantial differences. Those were errors of law, not matters protected by ordinary deference to factual findings.
6. There was sufficient connection and similarity on the facts, including the patients’ vulnerability, the clinical setting, inappropriate undressing, distinctive repetitive speech, controlling behaviour and alleged sexual motivation. The absence of collusion or contamination was also clear on the material before the Tribunal.

• Medical Practitioners Tribunal: On 13 December 2023, found the allegations against Dr Garrard not proved and his fitness to practise not impaired.
• High Court (Administrative Court): The appeal under section 29 of the National Health Service Reform and Health Care Professionals Act 2002 was allowed. The Tribunal’s decision was quashed and the matter remitted to a differently constituted Tribunal.