In this recent case, Mostyn J re-affirmed the long-standing principle that respondents at regulatory hearings should be afforded an opportunity to explain or defend themselves during cross-examination in response to serious allegations made against them.
Mr Sait, a consultant orthopaedic surgeon, appealed against a Medical Practitioners Tribunal (the Tribunal) finding that his fitness to practise was impaired by virtue of misconduct. The appeal focussed on the Tribunal's finding of fact that his attempt to progress a relationship with a patient was sexually motivated. These proceedings followed a complaint by a patient who alleged that, although she had initially developed a good doctor-patient relationship with Mr Sait, his behaviour had become increasingly inappropriate. The patient stated that on one occasion he called her 'pretty' and on another had hugged her and attempted to kiss her. These allegations were put in writing to Mr Sait, however his response did not persuade case examiners that the matter should not be referred to the Tribunal.
The first of the appellant's grounds was the Tribunal's failure to observe essential standards of procedural fairness, in that the alleged sexual motivation was never put to him in either cross-examination or the Tribunal's own questions. He was consequently deprived of the opportunity to explain or defend himself against the allegation.
Mostyn J described the failure to cross-examine Mr Sait on this issue as 'remarkable' and declared that it was 'procedurally unfair to such a degree that the appeal must be allowed on this ground'. In support of his view, Mostyn J cited the case of Chen v Ng [2017] UKPC 27, in which the Privy Council held that a decision of the Court of Appeal of the Eastern Caribbean was procedurally unfair, as the reasons given for it in the judgment had not been put to one of the parties in cross-examination.
Taking the unusual step of citing the US case, Crawford v Washington (2004), Mostyn J iterated that the best way of assessing the reliability of evidence is via 'testing in the crucible of cross-examination'. Moreover, Mostyn J stated that 'if the allegation is serious it must be put in cross-examination to the accused doctor. The content of the doctor's replies, as well as his demeanour, will equip the Tribunal to decide whether the allegation is, or is not, true'.
Mostyn J disagreed with the respondent's argument that, as Mr Sait had denied calling the respondent 'pretty' he would be unlikely to admit to having had a sexual motivation and therefore cross-examination on this issue would have been 'a pointless and futile exercise' . He then cited Lord Herschell's pronouncement in Browne v Dunn [1894] 6 R 67 that 'cross examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination'.
This decision serves as a reminder that failure to put serious allegations to a defendant during the course of cross-examination will render any finding of their truth as having been reached unfairly. Regulators should therefore keep this important aspect of procedural fairness in mind during hearings and legal advisors may be wise to prompt regulatory panels to do this by adding a reminder of its importance into their training and guidance.
Authored by Richard Gorman