ASSESSING WITNESS CREDIBILITY A “REASONING PROCESS VITIATED BY AT LEAST THREE FUNDAMENTAL ERRORS OF APPROACH”: HIGH COURT LAYS DOWN THE LAW

In  Dutta, R (On the Application Of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin) Mr Justice Warby set out a powerful critique of the reasoning given by the Medical Practitioners Tribunal.   The judgment contains an essential summary of the guidance and case law on assessing witnesses, it needs to be read by all of those involved in assessing the credibility of witnesses.

 

“I regret to say, in my judgment the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.”

THE CASE

The Medical Practitioners Tribunal had made factual findings in a hearing where the doctor was the respondent.  One of these findings was that the doctor had offered a patient a “discount” on medical treatment.  The Tribunal made this finding on the basis that that the complainant witness was “credible” and the documents that contradicted her account could give rise to a supporting construction.  This approach was roundly criticised by the judge.

THE JUDGMENT ON THIS POINT

The judge set out the allegation in relation to the “Discount Charges”.
25. In support of the Discount Charges, the GMC relied on the evidence of Patient A. In her witness statement, she said that when she went to see Dr Dutta in March 2009, he “said that if I agreed to have the surgery the following week he would be able to give me a £600 discount as he was already operating on someone else that week and I wouldn’t have to pay theatre fees if I had the operation on the same day as them. I agreed to have the operation the following week”. Her account was that he made the offer on the stairwell of the clinic. She said that, looking back, she realised that she had been pressurised into agreeing and felt he had done a “hard sell” on her. There was then a pre-op clinic on 2 April 2009. She transferred the money for the operation to the clinic that day. The operation was then scheduled to take place on 4 April but, the day after the pre-op, she was telephoned by the receptionist to be told that the operation had had to be moved. It was then “rescheduled for 11 April 2009”, which is when it took place. This was, she told the Panel, within “a couple of weeks” of the stairwell discount offer. On this account, therefore, that offer must have been made in late March 2009. Her oral evidence was that it was in the middle or at the end of March, “a couple of weeks before the operation”.
    1. In his statement Dr Dutta, having consulted his records from 10 years earlier, said that Patient A had been considering breast augmentation for some time. On an occasion in the latter months of 2008, when she was coming in for injectable treatments, he had outlined the costs to the patient and arranged to see her again to discuss the matter further, allowing a cooling off period. He next saw her on 5 March 2009. They had a discussion about the operation before arranging the pre-op consultation for 2 April, and the operation six weeks after 5 March. She was quoted the standard price and paid a deposit of £500. He did not pressurise Patient A into agreeing to the operation only a week after it was first discussed, or offer her a discount for that purpose. An appointment the following week could not have been arranged. He did not see her again until the pre-op consultation on 2 April. In due course, she paid the standard price.
    2. There was documentary evidence on which Dr Dutta relied in support of his account. In particular:-
(1) There was an appointment print-out, listing dates on which Patient A attended the practice, the duration of the appointment, and in most instances the reason for her attendance. The print-out included a 30-minute appointment on 5 March 2009 for “treatment”, a 15-minute appointment on 2 April 2009 for unspecified reasons, and an appointment on 11 April 2009 when, by common consent, the Augmentation Operation took place. The print-out did not include any late March visit.
(2) There was a printed booking form for 5 March 2009, filled out in manuscript, with extensive annotations. In two places it recorded that Dr Dutta had quoted £3,000 in total for breast augmentation. It said that £500 had been “paid on 5/3/09” and that a receipt for that sum had been provided in person on the same date. These entries were signed by “LINDA”. The form dealt with the booking process for the procedure, recording “emailed Hugh 5/3/09”. It set out the Schedule of treatment as “Pre-op Thursday 2nd April ’09 at 1:30pm” and “Date of procedure Saturday 11th April ’09 at 11:00″. There was also a manuscript annotation against “Balance due” which was evidently filled in later, stating “2,500 paid 03/04/09”.
(3) There was an email timed at 15:54 on 5 March 2009 from Linda at the clinic to Hugh McDonald at the hospital (“Dear Hugh”), setting out “details of new bookings”, including that for Patient A. It requested theatre time at 11am on 11 April 2009, and asked for confirmation.
(4) There was an email in reply from Mr McDonald (the Anaesthetic Co-ordinator) at 15:57pm the same day, confirming all the bookings by stating “This will be fine”.
(5) There was a letter from Dr Dutta dated 11 March 2009, confirming receipt of the £500 deposit, the date and time of the procedure, and the follow up review appointments thereafter.
    1. Patient A was cross-examined by reference to these documents. Her response was to dismiss them as fabrications. She told Counsel “I think these aren’t correct. I think these have all just been mocked up”. When Counsel then queried this, the witness disputed what she had just said:-
“Q. Your explanation for how it is that your recollection differs from all these documents is that these are mock-ups?
A: No, I didn’t say that. You said that.”
It was not the GMC’s case that any of the documents had been fabricated or tampered with. Counsel confirmed as much to the Chair. The authenticity of these records was not in dispute between the parties. This was not the only occasion on which Patient A suggested forgery or falsification of the records. Later, Counsel questioned her account of what had been said when her breasts were scanned, suggesting it was inconsistent with the contemporary records. The witness said “That is the truth and I don’t believe these documents. I think they have been falsified”.
    1. There was evidence from Dr Dutta’s wife, Wendy, a Registered Nurse who was the Practice Manager at the clinic, that she could “categorically state” that it was not the case that any discount had been offered. Her reasoning was that the practice never offered discounts to secure earlier surgery, and the booking process with the hospital required 2 weeks’ notice. She also gave evidence that she had been present on 5 March 2009, and witnessed no discount being offered.
    2. It is necessary to set out the relevant section of the Tribunal’s reasoning in full. I have emphasised some passages of particular importance.
“[29] The Tribunal noted that neither party sought to challenge Patient A’s credibility. It is also noted that she made some concessions during her oral evidence, which enhanced her credibility.
[30] Dr Dutta argued that her account that she was offered a discount if she were to have the procedure the next week cannot be correct as the initial consultation took place on 5th March 2009, yet the procedure was not undertaken until 11th April 2009, and therefore not the following week. He relies upon the documentation within her medical records to rebut her account. He also argued that the practice of the clinic was to offer a fixed price and not to offer discounts.
[31] However, the Tribunal noted that whilst weight could be assigned to the documentation, it is not determinative. The Tribunal noted the record of Patient A’s appointments with Dr Dutta, including a 30-minute appointment on 5th March 2009, commencing at 1:30pm. It also noted the email from Dr Dutta to Mr. McDonald at the hospital in which the procedure was to be undertaken, dated 5th March 2009 and sent at 3:54pm, detailing that the date of the procedure was to be 11th April 2009. A questionnaire completed by Dr Dutta after his consultation with Patient A was completed after the email as it details that Mr. McDonald had been emailed. As such, the documentation does not preclude that between 1:30pm and 2pm Dr Dutta offered the discount to Patient A, but between then and the sending of the e-mail, it had become clear that the procedure could not be undertaken so soon.
[32] The Tribunal took into account Ms. Dutta’s evidence that during the consultation she did not witness any discount being offered, however, it bore in mind Patient A’s evidence that the offer had been communicated in the stairwell and not the consultation room.
[33] The Tribunal assessed that Patient A’s account of Dr Dutta offering her a discount was emphatic and assured, and that whilst it may be expected that recollections of events could be inaccurate and have evolved over time, it is less likely that an event would be contrived in its entirety as a result of the passage of time.
[34] The rationale which Patient A claimed Dr Dutta stated at the time, namely savings on hospital theatre booking fees, aligned with the process and cost components of such arrangements as he described in his oral evidence. The Tribunal deemed it unlikely that Patient A would have had such an understanding of this process and associated cost structure had she not been provided this information by Dr Dutta.
[35] The Tribunal noted that Dr Dutta stated in his oral evidence that he had previously offered Patient A discounts for fillers if undertaking a botox procedure. Further, the Tribunal noted that documentation within the bundle concerning Patient C in which it was stated that Dr Dutta had offered a discount, albeit in different circumstances and whilst working for NU Clinic.
[36] The Tribunal also noted the aforementioned questionnaire completed on the day of Dr Dutta’s consultation with Patient A on 5th March 2009, in which it states that she had been given a quote by Dr Dutta. This supports her assertion that the price was discussed. Patient A paid the deposit for the procedure on the date of the consultation and this indicates that a procedure and price were arranged with immediate effect.”
    1. There are several strands to this reasoning, but in my judgment Ms Hearnden has fairly encapsulated the essence of it in her submissions. Paragraph [29] meant the witness was not being accused of lying. Paragraph [30] is recitation of Mr Counsell’s submissions, in which he relied on the contemporaneous documents. Paragraph [31] was the Tribunal’s response. As Ms Hearnden put it: what they are doing here is saying “We have Patient A’s account. We believe her. Do the documents show that she must be wrong? No. The documents cannot be a complete answer”. The remaining paragraphs comprise supplemental reasoning and analysis. Paragraph [33] is a clear statement that the Tribunal believed Patient A’s account. Paragraphs [34] to [36] identify aspects of the evidence that are said to be consistent with aspects of the patient’s account, and make the point that it is unlikely she would have invented it.
    2. Ms Hearnden submits that, taken overall, this is a legitimate and unexceptionable approach. Unduly semantic analysis should be avoided. In substance, the Tribunal were saying that the documents relied on by Mr Dutta are “not enough to unseat their confidence in the evidence given by Patient A on this point”. Putting it another way, Ms Hearnden says that the crux of the Tribunal’s reasoning was that “they believed her”, and then went on to look at whether her account chimed with other things they knew.
    3. That analysis was offered by way of response to the central criticisms of Mr Counsell. In my judgment, it falls well short of providing an adequate answer to those criticisms. I have well in mind the high threshold to be crossed when it comes to a finding of fact, but I find myself compelled to accept Mr Counsell’s critique, and to reject the Tribunal’s approach as wrong in principle and untenable, for a number/host of reasons.
    4. First, Mr Counsell is right, in my opinion, to submit that it was not open to the Tribunal as a matter of procedural fairness to reach the factual conclusions it did. In substance, the Tribunal found the Charges proved on the footing that the alleged discount offer was or might have been made to Patient A by Dr Dutta between 1:30pm and 2pm on 5 March 2009 but not fulfilled because, at some unspecified time during the 2 hours or so between then and 3:54pm (when the practice emailed the hospital) it had, in some unspecified manner and for some unspecified reason, “become clear” that the procedure could not be undertaken within a week. That is the effect of paragraph [31] of the Determination. As the GMC accepted at the hearing before me, the first time the parties became aware of this version of events was when they saw the Determination.
    5. It was not an interpretation of events that had ever been put forward by the GMC. One important reason for that, no doubt, is that this was not the evidence of Patient A. Indeed, this version of events was at odds with several aspects of her account. I shall come to that. In any event, this is not a version of events that had ever been put to Dr Dutta by the GMC for comment or response. A tribunal of fact in proceedings of this kind is not wholly constrained by the way the parties put their cases. It is entitled to test other hypotheses, and to form its own view. Sometimes, when preparing a judgment, a point of fact or law that has not been fully explored may occur to the tribunal. In these circumstances, if the point is one of moment, the usual and proper course is to refer the matter back to the parties. It is not fair to find against a party on a factual point of substance without giving that party a reasonable opportunity to address the point beforehand.
    6. This was a novel suggestion that had no direct support in any of the oral or documentary evidence, and was not easy to reconcile with either. It was a new case theory that, in principle, might have been supported or undermined by additional documentary evidence. Fairness required that before reaching a conclusion on such a theory it should be disclosed to Dr Dutta and his legal team, and that they should be given a reasonable opportunity to understand it, investigate it evidentially, call such evidence as they might, and make submissions about it. The GMC also ought to have been made aware that the Tribunal was considering a finding to this effect. It might have had something to say, evidentially or by way of submission.
    7. Mr Counsell has identified the hospital records as a possible source of documentary evidence as to whether the booking was ever rearranged. I cannot tell whether there was or would have been any such evidence. But nor can it be said that the deprivation of the opportunity to investigate or, at the minimum, make submissions, is inconsequential. Ms Hearnden has not made that argument.
    8. In any event, I regret to say, in my judgment the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.
    9. There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux [2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y [2017] EWFC 36 [2017] 4 WLR 136. Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) [96]:
“i) Gestmin:
  • We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
  • Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
  • Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
  • The process of civil litigation itself subjects the memories of witnesses to powerful biases.
  • Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
  • 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”.
ii) Lachaux:
  • Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J’s judgment, the following:
  • “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…
  • “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…”
  • Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”
iii) Carmarthenshire County Council:
  • The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
  • However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.
45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1, 57.”
I have emphasised passages that have particular resonance in this case.
    1. This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham’s paper on “The Judge as Juror” (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness’s evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness’s demeanour was listed last, and least of all.
    2. A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant’s credibility. As the High Court put it at [47], “their Honours’ subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …” The Supreme Court was however divided on the point, and the High Court observed that this “may be thought to underscore the highly subjective nature of demeanour-based judgments”: [49]. The High Court allowed the appeal and quashed Cardinal Pell’s convictions, on the basis that, assuming the witness’s evidence to have been assessed by the jury as “thoroughly credible and reliable”, nonetheless the objective facts “required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt”: [119].
    3. Comparison of the passages from Kimathi that I have highlighted at [39] above with the parts of the Tribunal’s reasoning that I have highlighted at [30] reveals the following flaws. Instead of starting with the objective facts as shown by authentic contemporaneous documents, independent of the witness, and using oral evidence as a means of subjecting these to “critical scrutiny”, the Tribunal took the opposite approach, starting with Patient A’s evidence. It is an error of principle to ask “do we believe her?” before considering the documents. Further, the Tribunal’s approach to the oral evidence of Patient A involves the second of the two “common errors” identified by Leggatt J in Gestmin. Reliance on a witness’s confident demeanour is a discredited method of judicial decision-making. Paragraphs [29] and [33] of the Determination provide a clear illustration of the “fallacy” identified by Leggatt J. These flaws are all the more significant given the antiquity of the events in dispute, which were ten years old at the time of the hearing. As Mostyn J emphasised in the Carmarthen case, the older the events, the more important it is to hold fast to these principles of reasoning. The flaws are surprising, as Mr Counsell had expressly referred the Tribunal to the passage from Kimathi that I have cited. I would add two points. First, the second emphasised sentence in paragraph [33] does not clearly or sufficiently acknowledge the fluidity of memory, or the fact that an honest witness can construct an entirely false “memory”. Secondly, the fallacy that confident evidence from an honest witness is accurate evidence is starkly illustrated by Patient A’s insistence that the authentic documents shown to her in cross-examination must have been faked. It is plain that her only basis for saying so was that the documents were at odds with what she was saying. She was seeking to “explain away” the problem in a way that maintained her belief in her own account, a classic symptom of cognitive dissonance.
    4. The third error I have mentioned emerges from paragraph [31] of the Determination. When deciding what to make of the apparent mismatch between its impressionistic assessment of Patient A and the contemporaneous documents, the Tribunal’s approach was to ask itself whether the documentation was “determinative”, and such as to “preclude” the novel case theory which the Tribunal came to adopt. This was, in effect, to require Dr Dutta to establish to the criminal standard a defence to the Charge (and to an amended version of the Charge, which had not been put to him). The Tribunal’s task was, however, to assess the evidence in the round and decide whether the GMC had discharged the burden of showing that it was more likely than not that pressure was applied by means of a discount offer, for financial motives, as alleged in Charges 1(a) and 2.
    5. Mr Counsell has submitted that there are additional problems with the Tribunal’s reasoning. He identifies the following as matters omitted from the reasoning process (1) the dangers of accepting uncorroborated testimony about matters that were ten years old (2) the inherent probabilities, bearing in mind that the professional relationship continued for several years before the patient made any complaint about these matters and (3) the Tribunal’s conclusions, that other aspects of the evidence of the same witness were not reliable. These may be characterised as allegations of failure to take all relevant factors into account. I am not sure Mr Counsell’s first point is separate and distinct from the flaws with which I have dealt already. It is however fair to say that the other two points do not feature in the Tribunal’s reasoning. A tribunal of fact need not give comprehensive reasons, addressing every point or argument. Summary reasons are often sufficient in the context of fitness to practise proceedings. But the obligation to give reasons is context-specific, and the fact that no reference was made to the adverse conclusions reached in respect of other aspects of Patient A’s testimony lends support to my conclusion that the Tribunal’s decision on this issue cannot stand.
    6. The most important points in this context are the Tribunal’s rejection of other evidence given by Patient A about what happened at the pre-operative assessment, and its reasons for rejecting her evidence. It is by now notorious that one kind of breast implant, known as PIP, has been identified as hazardous to health. On the basis of Patient A’s evidence, the GMC alleged that on 2 April 2009 Dr Dutta “falsely told Patient A that you would not be using PIP implants during the surgery, or words to that effect”, knowing that this was untrue, with the consequence that his conduct was dishonest (Charges 3(b), 4 and 5). Mr Counsell fairly submits that this was the most serious charge faced by Dr Dutta. It is certainly a very serious set of allegations. The Tribunal found these allegations were not proved, for reasons given in the Stage 1 Determination at paragraphs [52-57].
    7. In summary, Patient A’s account was that before seeing Dr Dutta she had heard a BBC Radio 4 programme called “Medicine Now” discussing concerns about breast implant ruptures affecting French women. No record of the programme nor any other evidence could be found to support this. The evidence of an expert witness was that he would have known of it, if there had been any such programme. The evidence of the two experts was that “the issues with PIP implants had not been identified in 2009 and that Patient A could therefore not have known about them as stated”. The Tribunal found this led to “questions regarding … her ability to recall accurately the events from so long ago, and in light of all the developments since then”. In this context the Tribunal gave “significant weight” to the submission of Mr Counsell that if things had taken place as Patient A maintained, it would have been “almost inconceivable” that she would have continued to see him and use his services for a further 5 years, as she did.
    8. This is a distinctly different approach to fact-finding, in which the Tribunal bases its approach on acknowledged facts, and recognises that these point to the probability that the witness had come to believe a falsehood, with the consequence that a serious charge, based on her honest recollection, was unsustainable. The Tribunal should of course have made a rounded assessment of the witness’s reliability, rather than approaching each charge in isolation from the others. The fact that its reasons in relation to Charges 1(b) and 2 do not reflect an awareness of their own finding that the witness was not reliable on the related Charges 3 to 5 is, in the circumstances of this case, a matter that further undermines its findings.
    9. I do not accept the full weight of Mr Counsell’s challenge to the reasoning at [34-36] of the Determination, but I do conclude that it does not assist the GMC. In one respect its procedural fairness is questionable; in another, I doubt that any weight could be attached to it; and in any event, none of the three factors which the Tribunal treated as corroborative or supportive of its conclusions can bear significant weight. Patient A’s apparently accurate knowledge of the way hospital booking fees work was said to support the accuracy of her recollection, but could be equally well explained by her long association with Dr Dutta and others, before and after 5 March 2009, in the course of which she had the opportunity to gain considerable experience of procedures. The finding that she had been given this information by Dr Dutta at the meeting of March 2009 was not based on any evidence from her, nor was the proposition put to Dr Dutta. The Tribunal treated Dr Dutta’s admission that he offered discounts on botox procedures as probative of Patient A’s version of events, without addressing Dr Dutta’s evidence (in cross-examination) that he would not give discounts for surgery as it risked “enticing someone to have surgery”. The fact that the procedure and price were discussed and arranged with immediate effect was common ground, and surely neutral at best.
    10. For these reasons, my conclusion is that the Tribunal’s factual determination on Charges 1(a) and 2 cannot stand. Nor do I consider that there is any room for a re-hearing of those charges. Any such hearing would take place 12 years after the event. The procedural difficulties would be considerable. There would be at least a question as to whether it could be carried out by the same Panel. But in any event, having reflected carefully on the matter, I accept Mr Counsell’s submission that the evidence before the Tribunal was not capable of founding a decision that these Charges were made out. It is relevant to note that the Tribunal did not find that anything that had been asserted by the GMC or Patient A had probably taken place. It identified a different version of events, which it considered could not be ruled out. The only reasonable conclusion available, in all the circumstances, and in the light of the unchallenged documents relating to the Augmentation Operation, was that Patient A’s recollection that she had been offered a discount to have surgery quickly was not reliable, and the GMC’s case was not proven.
    11. I doubt that it will be controversial that this conclusion would of itself necessitate the quashing of the Second and Third Stage Determinations, and a direction for re-determination of those stages. But among the reasons for that view is the fact that the Tribunal’s decision-making at those stages clearly placed considerable weight on its adverse findings on Charges 1(a) and 2. In paragraph 78 of the impairment Determination it concluded that Dr Dutta
“… adopted a disingenuous smokescreen in the instant proceedings, particularly when considering his use of documentation to seek to discredit Patient A’s assertion of being offered a discount…”.
The conduct of a disingenuous defence, and a consequent assessment that the practitioner lacked insight, are plainly matters that are likely to have influenced the conclusions at these latter stages.