Key takeaways
High court clarifies cross-admissibility rules
Guidance helps tribunals apply evidence consistently.
Two grounds for admitting related evidence
Propensity or coincidence must be clearly distinguished.
Careful directions avoid legal missteps
Tribunals must follow correct approach to prevent errors.
High Court Judgment
Clarity on cross-admissibility in disciplinary proceedings
The High Court has allowed an appeal brought by our client the Professional Standards Authority for Health and Social Care (“the PSA”) against a decision of the Medical Practitioners Tribunal (“the MPT”) not to find proved any allegations against a doctor. The allegations related to incidents involving two patients that were alleged to have occurred at different times and at different locations but were heard together. The issue in the appeal was the extent to which the evidence relating to one patient could be considered in relation to the allegations made in respect of the other patient – an issue referred to as cross-admissibility in the judgment. The PSA appealed on two grounds – that the MPT had wrongly directed itself as to the test for cross-admissibility and that it had wrongly interpreted and/or applied the legal test for cross-admissibility.
In a judgment handed down on Friday 17 February, Mr Justice Macdonald concluded that the appeal should be allowed on both grounds. Recognising that there were challenges in applying the concept of cross-admissibility in proceedings before the MPT, the Judge held that the position was tolerably clear. He went on to summarise the approach to be taken by a fitness to practise tribunal that was required to determine an issue of cross-admissibility. Paragraph 47 of the judgment sets out a series of matters that a tribunal in that position will need to consider:
That there are two primary grounds on which evidence may be cross-admissible: where it may establish propensity or where it may rebut coincidence.
The tribunal will need to decide on which ground it is being asked to cross-admit the evidence and advise itself accordingly.
The tribunal will need to distinguish clearly between the grounds and not advise itself on the other ground if only one is applicable.
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.
Where the evidence is cross-admitted to prove propensity in a case involving two allegations, before attaching weight to the evidence the tribunal will need to be satisfied to the required standard that the first allegation took place before relying on evidence in respect of the first allegation to deduce propensity in relation to the second allegation.
Where the evidence is cross-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 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 are 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 on that allegation in support of the other allegation concerning the other patient.
In the case to which the appeal related, it was noted that the GMC had made plain that it sought to rely on the similarity of the allegations made by the two patients as rebutting coincidence rather than demonstrating propensity. The MPT should therefore have advised itself only on the principles that applied where evidence is sought to be cross-admitted to rebut coincidence. Instead, the MPT advised itself on both bases for cross-admissibility, which the Judge held had risked conflating and confusing the two bases in the minds of the MPT. Further, the advice that was given meant that the MPT was not given clear direction as to the proper approach to be taken. It then went on to wrongly interpret and apply the law with respect to cross-admissibility.
Having allowed the appeal on both grounds the Judge remitted the case for reconsideration to a differently constituted tribunal.
The judgment provides a helpful summary of the approach to be taken to cross-admissibility in disciplinary cases and emphasises the need for care to be taken in identifying the basis for any cross-admissibility (to establish propensity or rebut coincidence) before deciding whether or not to cross-admit.
Ros Foster, Partner in the Healthcare and Public Law team of Hill Dickinson LLP acted for the PSA. The PSA was represented at Court by Fenella Morris KC of 39 Essex Chambers.