Newsletters Professional Discipline 28th Oct 2020

High Court gives timely reminder that demeanour is not everything: R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin)

Most practitioners will have had cases where the reasoning of a tribunal as to why they believed a complainant against a professional amounted to little more than “we found him/her to be a credible and convincing witness”. In the absence of any other way of deciding between two competing accounts a tribunal may be forced to rely on demeanour, but in R (Dutta) v GMC, the High Court gave a stern reminder of just how low modern legal thinking places demeanour among the reliable ways of making judicial decisions.

Dr Dutta was a cosmetic surgeon. He faced 23 allegations relating to four patients. By the time the evidence at the factual stage was complete, Dr Dutta had admitted some of the charges, and others had been dismissed on a ‘no-case’ submission.

What remained included a number of allegations relating to Patient A. One group alleged that, for financial gain, he pressured her into undergoing a breast augmentation by offering her a time-limited discount. He was also accused of having failed to get informed consent to the surgery, and lying to her about the type of implant to be used. Another group of allegations related to failing to deal properly with some allegations Patient A had made against another doctor that he had touched her inappropriately.

Dr Dutta provided some contemporaneous documentary evidence which he said contradicted patient A’s account. She said these were faked, but that was never alleged by the GMC. There were other provable inaccuracies in her account.

The tribunal went on to find the key allegations relating to her proved. Dr Dutta was later found to be impaired and suspended but it was the tribunal’s reasoning at the factual stage which the Court attacked. In essence the tribunal said “We have Patient A’s account. We believe her. Do the documents show she must be wrong? No. The documents cannot be the complete answer”. Counsel for the GMC in the High Court submitted that it was legitimate for the tribunal to say that the documents relied on by Dr Dutta were “not enough to unseat their confidence in the evidence given by patient A on this point”.

This was one of a number of serious ways in which this particular tribunal was found by the Court to have gone badly wrong. But the importance of Dutta is the opportunity it gave to the court to review and restate the modern legal attitude to witness believability.

In paragraphs 39-42 Mr Justice Warby set out in detail the legal principles involved as derived from a series of recent cases[1]. They repay reading in full as different parts of them may apply depending on the sort of case a practitioner is facing but in essence they all act to reduce unjustified reliance on the confidence or compelling way in which a witness gives factual evidence. This change of attitude reflects modern scientific and psychological work on memory.

The principles set out recognise the malleable nature of memory (even in honest witnesses), and the lack of reliable connection between the witness’s confidence and emphatic passion in the way they give their account, and the likelihood of that account being accurate. They emphasise that while oral evidence remains important, contemporary accounts or documents are generally a better route to the truth. Warby J also provides a guide to the correct approach by way of a paragraph from Gestmin which I reproduce in full here:

The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… .But its value lies largely….in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, 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”.

This may all appear to be common sense, but our adversarial trial system elevates oral evidence above everything else. We regard hearsay (and while not all the uses to which contemporary records are put involve hearsay much of it does) as inherently suspect, and evidence given under cross-examination as the “gold standard”.

The Gestmin approach will, at times, be very unhelpful to our clients, but we have all done cases in which it would have been far more likely to lead to a just result. Where the tribunal’s errors are as gross as they were in Dr Dutta’s case, the findings will be quashed on appeal. But authority is strongly against the High Court overturning findings of fact and, in the right case, Gestmin may ensure the tribunal does it properly the first time.

Postscript: this case proceeded by way of judicial review because Dr Dutta was also challenging a ‘five-year rule’ decision by the GMC to refer some earlier charges. These is a useful discussion of the GMC’s obligation to be candid with registrants about how such decisions have been made.

[1] Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm), Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57, Carmarthenshire County Council v Y [2017] EWFC 36 [2017] 4 WLR 136 and Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) [96].


Ben Rich

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