Regulatory proceedings: reliance on hearsay evidence from deceased complainant
Dr Siong Lee v General Medical Council [2025] EWHC 3347 (Admin)
The Appellant, Dr Lee, was a GP. The Medical Practitioners Tribunal (‘MPT’) found that he had dishonestly falsified Patient A’s medical records on three separate occasions. As would be expected in such circumstances, the Tribunal concluded that his fitness to practise was impaired. His registration was suspended for 12 months, the maximum under the Medical Act 1983. Dr Lee appealed.
The GMC’s evidence against Dr Lee included a witness statement from Patient A. However, Patient A had died before the hearing, so this was hearsay evidence. At a preliminary hearing, Dr Lee’s representatives had argued against this statement being admitted. However, this argument failed and, at the substantive hearing, the GMC relied on Patient A’s statement.
Patient A’s account was central to the factual allegations that underpinned the alleged dishonesty. In summary, in November 2017, Patient A had a blood test showing an elevated prostate-specific antigen (‘PSA’), a potential marker for prostate cancer. Dr Lee reviewed the blood results and made an entry in Patient A’s records that a routine appointment would be made. At this point, Dr Lee did not record anything about a telephone call with Patient A, potential investigations or a treatment plan. In 2019, Patient A was diagnosed with prostate cancer. In May 2020, he complained to the general practice saying he had been shocked to hear that blood tests in November 2017 had showed elevated PSA levels and he had known nothing about this.
After November 2017, Dr Lee had amended Patient A’s records on three separate occasions, which he admitted in these regulatory proceedings:
- First, in February 2018 after Dr Lee referred Patient A for an ultrasound scan for an unrelated problem. Dr Lee amended the November 2017 entry, adding a note that a prostate ultrasound scan was to be done.
- Second, the day after Patient A complained to the general practice Dr Lee amended the November 2017 note to record a telephone conversation with Patient A.
- Third, the following day Dr Lee again amended the November 2017 note, adding that Patient A had refused a digital rectal examination.
Dr Lee said that he had made these amendments to give an accurate account of Patient A’s care. In essence, the GMC alleged that Dr Lee had not had a telephone consultation with Patient A in November 2017, had not requested an ultrasound scan at that time, and did not recommend a digital rectal examination; and that the retrospective amendments to the Patient A’s records were dishonest.
The Tribunal Decisions
After hearing argument (at a case management-type hearing), the preliminary Tribunal had decided that Patient A’s statement could be admitted before the Tribunal that was hearing the fitness to practise case. The factors relied on included the seriousness of the allegation and a conclusion that Patient A’s evidence was not the sole evidence available. Other evidence was the absence of an ultrasound scan referral and Dr Lee’s own admission that he had changed the records. It concluded that any prejudice to Dr Lee could be mitigated by submissions to the MPT.
At the substantive hearing, Dr Lee maintained that he had retrospectively updated medical records for an entirely innocent reason, to provide a clear and accurate record of events. There was also evidence that an ultrasound scan referral would not necessarily have been electronic (and so the absence of an electronic record could not be decisive). The Tribunal concluded that Dr Lee’s evidence had been inconsistent in parts. It also directed itself to evaluate the content of Patient A’s witness statement bearing in mind he had not been cross-examined.
Grounds of Appeal
I set out the grounds of appeal briefly because, simply put, they gained no traction before the judge.
Dr Lee argued there had been a serious procedural error in the preliminary Tribunal’s decision, including because it had concluded that Patient A’s evidence was not sole and decisive, and because it took Dr Lee’s statement into account in deciding whether to admit Patient A’s statement. As to the substantive Tribunal’s decision, Dr Lee also argued it had fallen into error in preferring Patient A’s evidence, failed to make clear the weight attached to Patient A’s statement, and placed too much weight on the fact the telephone conversation between Dr Lee and Patient A had not been contemporaneously recorded.
Legal Principles
Brunner J set out the relevant and uncontroversial legal principles in this appeal: there is a right to appeal a MPT decision under s40 Medical Act 1983. An appeal can only be allowed if the MPT’s decision was wrong or unjust because of serious procedural or other irregularity. The appeal proceeds by way of re-hearing, although evidence is not recalled. The MPT’s factual findings should be given appropriate weight, including as it has the benefit of hearing live witnesses, and findings of primary fact will be “virtually unassailable”[10]. The reader will see the upshot of this: there is high bar to appealing findings of fact, particularly when based on the MPT’s assessment of witness credibility.
The admission of hearsay evidence is governed by r34(1) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. A Tribunal may admit any evidence it considers “fair and relevant” to the case before it. Again, the reader will see that this gives considerable latitude to the MPT when deciding whether to admit hearsay evidence. Brunner J restated the following principles from Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565:
- The admission of the statement of an absent witness should not be regarded as routine. The Tribunal should consider fairness before doing this.
- The absence of a witness can be reflected in the weight given to that statement. But this will not always be a sufficient answer to an objection on admissibility.
- The reason for witness non-attendance is an important factor (but the absence of a good reason is not determinative).
- Where hearsay evidence is the sole or decisive evidence on the charges, the Tribunal must carefully weigh up competing factors, must consider the issues in the case, the other evidence, and the potential consequences of admitting the evidence. The Tribunal must be satisfied that the evidence is demonstrably reliable or its reliability can be tested.
Decision
Brunner J began by acknowledging the “risks inherent in hearsay evidence” and said “a robust, thorough process is required to ensure that it is only admitted where it is fair” [28]. She determined that both Tribunals had properly set out and then applied the law.
She concluded that the preliminary Tribunal was entitled to take Dr Lee’s own statement into account, including the concession that he had amended the records, when deciding whether to admit Patient A’s statement. Doing so helped to identify the issues in the case, which was a first step in assessing relevance and fairness. She also found that the preliminary Tribunal had identified other material that supported or undermined Patient A’s account. Again, Dr Lee’s admission that he had amended the records was significant. It meant that the original, unamended November 2017 note matched Patient A’s account. The Tribunal had expressly considered the prejudice Dr Lee might suffer if the hearsay was admitted and stated that submissions, which were in fact later made at the substantive hearing, could mitigate this. In Brunner J’s view, it was neither wrong nor unjust for the preliminary Tribunal to admit the evidence.
Dr Lee had no more success when it came to the substantive Tribunal’s decision. Brunner J accepted that Patient A was the only source of direct evidence that the telephone consultation had not taken place in November 2017 but found “there was a wealth of other evidence which, as the tribunal found, could properly found an inference that [Dr Lee] had been dishonest” [37]. The Tribunal had listed eight “evidential planks” it relied on to conclude the retrospective amendments were dishonest. Patient A’s hearsay evidence was just one of those planks in relation to amending the records. The Tribunal had also concluded that, if Dr Lee’s purpose in amending the records was to create an accurate record, it would have been logical for him to amend the records just once. Brunner J said this was an understandable conclusion by the MPT. The end point she reached was that the Tribunal’s findings could not be said to be against the evidence in any way; on the contrary, they were “entirely in line with the evidence” [39].
Discussion
This judgment does not disclose the detail of the fitness to practise hearing, and it is almost always the detail that matters in these kinds of dishonesty cases. But Brunner J’s judgment does tend to suggest Dr Lee faced a series of uphill struggles: first, his initial attempt to exclude Patient A’s evidence; second, his defence once Patient A’s statement was before the MPT; and third, the appeal itself. These struggles are, in large measure, because Tribunals have a wide discretion on the evidence to admit, and then there is a high threshold for successful appealing a Tribunal’s findings of fact.
Any lawyer who acts in MPT proceedings will know that Tribunals often articulate that they have had regard to evidence being hearsay evidence, meaning the doctor cannot cross-examine the witness. But it is often very difficult to know how, if at all, that feeds into the Tribunal’s decision-making. As was the case here, decision-making will often depend on whether the Tribunal can identify and formulate other reasons for reaching its conclusions that compliment, but are not entirely dependent on, the hearsay evidence.
While this case is very much fact-specific, it does serve as a reminder of the high bar for a successful appeal based on findings of fact, and also neatly summarises the legal principles to apply to decisions on admissibility of hearsay and the weight to be applied to hearsay evidence.
