PSA v GMC and Anor [2025] EWHC 318 (Admin) – the consequences of admitting evidence through the wrong gateway

In this case, the Registrant had examined two female patients who were unknown to each other at different A & E Departments nine months apart. Both patients complained of a degree of mental disorder. Each described the Registrant chanting in a “hypnotic” fashion or speaking in a “soothing” voice with a “weird” tone. Patient A’s evidence was that the Registrant had said that when she woke up she would “lust for me” and “love me and kiss me.” He asked her to remove her top before touching her breast and squeezing her nipple. Patient B’s evidence was that the Registrant had said that her boyfriend was the source of her problems and that she should wait at a bus stop for him so he could pick her up to take her home. He also repeatedly asked her to remove her clothes including her vest and sports bra.

The Registrant’s defence was that both complainants were unreliable because of their mental disorders and/or the side effects of the medication they were taking.

At the conclusion of the evidence, the GMC confirmed its position that the evidence of the complainants was cross-admissible to rebut any suggestion of coincidence. Notwithstanding this, the LQC directed the MPT predominantly on the issue of propensity. As a result, in its written determination, the MPT dealt with the evidence of Patients A and B separately. Prior to setting out its factual findings the MPT made no reference to any consideration it had given to the extent to which the allegations were similar, to having excluded collusion or contamination as an explanation for the similarity of the complainants’ evidence, to having considered the allegations of the one patient when determining the findings in respect of the other patient or to having considered the improbability that the complaints were the product of mere coincidence or malice. Instead, the Tribunal dealt with the question of the relationship between evidence provided by Patients A and B only after it had already set out its factual conclusions.

The MPT then went on to deal with the coincidence argument. However, it found that the allegations were not so similar as to justify the cross-admissibility of the evidence to rebut coincidence.

In allowing the PSA’s appeal, the High Court restated the principles to be applied by regulatory tribunals when considering the issue of cross-admissibility:

• 1. The two primary grounds on which evidence may be cross-admissible are where it may establish propensity to commit that kind of conduct and/or where it may rebut coincidence;
  2. The Tribunal will need to determine on which ground or grounds it is being asked to cross-admit the evidence and advise itself accordingly on a fact specific basis;
  3. The Tribunal must distinguish clearly between the grounds and not advise itself irrelevantly if only one ground is applicable, in order to avoid confusion;
  4. The Tribunal will need to consider whether the evidence in question is capable of being cross-admitted by evaluating whether there is a sufficient connection and similarity between the facts of the allegations;
  5. Where the issue is propensity in a case involving two allegations, the Tribunal will need to be satisfied that the first allegation took place before relying on that evidence in support in support of finding the second allegation proved;
  6. Where the evidence is admitted to rebut coincidence, before attaching weight to the evidence the Tribunal will need to advise itself that (a) it must exclude collusion or contamination as an explanation for the similarity of the complainants’ evidence before it can assess the force of the argument that the allegations are unlikely to be the product of coincidence, (b) if collusion or contamination is excluded, considering the evidence as a whole, the fact of two patients making such allegations reduces the likelihood of there being an innocent explanation for them, and (c) it is not necessary to find one allegation to be proved before relying upon the evidence in respect of that allegation in support of the other allegation concerning the other patient.

In this case the failure to consider properly the ground on which the GMC sought to argue cross-admissibility led the MPT into error. Had it considered coincidence as the basis for cross-admissibility, it would have been able to consider the evidence as a whole, including the similarities in the allegations, the lack of collusion and the consequent unlikelihood of coincidence. Instead, it had looked at the allegations in isolation from each other. Therefore, the MPT had wrongly directed itself as to the test for cross-admissibility.

Further, it had then applied a higher test than required. The MPT had stated that the evidence of the complainants was “insufficiently similar to find a pattern” and “[in]sufficiently distinctive to link what was allegedly said.” However, none of these formulations reflect the case law, which requires the fact finder to consider whether there is sufficient connection and similarity between the facts of the allegations. The MPT had failed to consider the overarching fact that both complainants were alleging that the Registrant had behaved inappropriately to them in a clinical setting. On a more detailed analysis, both were vulnerable, female patients; both had attended A & E for neurological or mental health reasons; both alleged that the Registrant had spoken to them in a distinctive, repetitive manner; both alleged that he had made them undress inappropriately and had otherwise behaved in a way that was sexually motivated. In the circumstances, the appeal would be allowed and the case remitted for rehearing.

This case illustrates how a failure correctly to identify the relevant gateway for cross-admissibility may vitiate the entire stage 1 decision. Following the six principles set out by MacDonald J will avoid similar error.