We have previously in QMLR– see CXB v North West Anglia NHS Foundation Trust  EWHC 2053 (QB) covered in Issue 3, November 2019 – considered the developing caselaw in respect of the judicial assessment of the reliability of factual witness evidence. These two further cases helpfully illuminate how, in the healthcare context, the court is likely to approach the assessment of factual evidence, particularly in cases where the facts in issue go back a number of years, and where there is a conflict between a Claimant’s account and the medical records.
In Dutta, the Claimant, a cosmetic surgeon, brought a consolidated appeal and judicial review of an MPTS (GMC) decision to suspend him following a public hearing lasting some 17 days. The appeal was mainly concerned with MPTS’s factual findings in respect of an allegation that Mr Dutta had inappropriately pressurised a patient to undergo breast augmentation surgery by offering her a £500 discount. This allegation dated back to 2009, some 10 years before the date of the hearing. The MPTS appeared to have accepted the complainant’s account based on her demeanour saying in particular:
“The Tribunal assessed that Patient A’s account of Dr Dutta offering her a discount was emphatic and assured, and whilst it may be expected that recollections of events could be inaccurate and evolved over time, it is less likely that an event would be contrived in its entirety as a result of the passage of time”.
Warby J identified at least three fundamental errors disclosed by this 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. Second, the Tribunal’s assessment of the witness’s credibility was based largely, if not exclusively on her demeanour when giving evidence, and third, 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 is instructive because Warby J helpfully distils the key aspects of the judicial learning on the assessment of factual evidence and emphasises the points of particular relevance from Gestmin; Lachaux, and Carmarthenshire County Council. Perhaps the single important aspect of that learning is the summary taken from Gestmin that:-
“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;” (the italicising is Warby J’s emphasis of matters relevant to the instant appeal).
Ismail v Joyce  EWHC 3453 (QB), is a decision of HHJ Freedman sitting as a deputy High Court Judge in a clinical negligence case. The key issue on liability turned on what symptoms the Claimant was suffering at, and in the days preceding, a GP consultation with Dr Joyce. The Claimant subsequently went on to be diagnosed with TB and suffered brain damage which prompt intervention by Dr Joyce might have avoided. The Defendant’s case was essentially that the Claimant’s account of events could not be relied upon and Dr Joyce’s recollection (supported as it was by clinical notes) should be preferred. Once again Gestmin is cited as the ‘locus classicus’ for judicial guidance on the fallibility of human memory, and reference is made to Stewart J’s decision in Kimathi, and Dutta, above. The judge observed how such cases are of particular application in the medical context where the medical records do not bear out what is recalled by the Claimant. Indeed it is notable that HHJ Freedman started from the proposition that: “the inherent fallibility of human memory” means that “ it is fair and proper to test the accuracy of recollections of medical consultations against what is documented in the records”.
The judge also made one further observation which turned out to be critical to his overall findings, namely that:
“it seems to me to be perfectly legitimate to find that, in some instances, [the Claimant and her sister’s] memories may be unreliable but, in other instances, their recollections of what was said or done can be relied upon. The latter will be particularly be the case if there is support in the medical records for what is said by them in their written and oral evidence. The central point is that just because in some instances, it is not possible to accept their evidence as to what happened or as to what was said, it does not render them unreliable witnesses, in the sense that the totality of their evidence falls to be rejected.”
Thus while the judge held that the Claimant’s memory was unreliable in some respects, including whether she had told Dr Joyce that she coughed up spots of blood in her saliva at her appointment, on a critical issue – whether the Claimant was suffering ‘drenching night sweats’ shortly before the Claimant saw Dr Joyce – the Claimant’s evidence was accepted. The superficial inconsistency in rejecting part of the Claimant’s recollection as unreliable but accepting another part as reliable, was explained by the judge as owing to the partial corroboration of her account of a history of drenching night sweats preceding the appointment, in the contemporaneous note made by Dr Joyce that she was ‘sweaty at night’.
The real point to make about this recent flurry of cases in which the judicial learning on the fallibility of human memory is condensed into a series of general propositions is that that they should be seen as the court seeking to explain the proper process of judicial-decision making rather than establishing any new legal principle. As Warby J explains, much of the current thinking on this issue is not ‘new’ and much of it can be traced back at least to Robert Goff LJ’s decision in Armagas Ltd v Mundogas SA  1 Lloyds Rep 1, 57 if not before. Lord Bingham’s paper on “The Judge as juror” in chapter 1 of “The Business of Judging” describes the judicial fact-finding process in much the same vein. One thing is certainly clear: reliance on a witness’s confident demeanour is now a discredited method of judicial decision-making. It will be a brave Claimant who seeks to argue for factual findings against medical professionals that find no support in contemporaneous documentation, or which are inconsistent with them, when the starting point for the Court will be “the inherent fallibility of human memory”.