In Lee v General Medical Council [2025] EWHC 3347 (Admin) the High Court examined the approach of a Medical Practitioner’s Tribunal to the evidence of a witness who had died prior to the hearing. The Tribunal had found that the appellant had dishonestly amended the records to give a false account of a consultation with the patient. In this insight, we set out the guidance given in that judgment on the approach to be taken in these difficult circumstances.

The appeal

Dr Lee appealed against the 12 month suspension imposed by the Tribunal. The Tribunal allowed the GMC’s application to admit the patient’s witness statement as hearsay evidence and preferred that evidence to the account given by Dr Lee. Dr Lee argued on appeal that the decision to admit that evidence constituted a serious procedural error in that:

• Insufficient regard had been had to the prejudice Dr Lee would suffer
• Reliance had wrongly been placed on Dr Lee’s statement and the extent to which it was consistent with the patient’s evidence
• By considering Dr Lee’s evidence at the point of deciding whether to admit the patient’s evidence the Tribunal had effectively reversed the burden of proof
• The Tribunal had wrongly concluded that the patient’s evidence was not sole and decisive
• The Tribunal had given excessive weight to the patient’s evidence
• The patient’s statement had been written in reliance upon his original complaint.

Thorneycroft

In deciding the appeal, the Judge applied the well-established Thorneycroft principles including that:

• The admission of the evidence of absent witnesses should not be regarded as routine – panels must consider fairness
• Weight would be relevant but not always a sufficient answer to objections to admission
• Where the evidence was sole and decisive in relation to a matter, the decision to admit required a careful assessment of the issues in the case, the other evidence to be called and the potential consequences of admitting the hearsay evidence
• The panel must be satisfied that the evidence is either demonstrably reliable or that there will be some means of testing its reliability.

Decision

Dismissing the appeal, the Judge held as follows:

• The Tribunal was not required to disregard Dr Lee’s evidence when deciding whether to admit the patient’s evidence but was entitled to consider it in deciding what was fair and relevant, understanding the issues in the case and assessing the reliability of the patient’s evidence. Its consideration of the extent to which Dr Lee’s evidence matched that of the patient did not amount to an effective reversal of the burden of proof
• The Tribunal was entitled to take evidence at face value in deciding admission and the fact that some of that evidence was later discounted did not undermine that decision or that approach
• The Tribunal’s ultimate decision to prefer the patient’s evidence to that of Dr Lee was made following an examination of all the other evidence, approached with an open mind
• There was a wealth of other evidence that could properly support an inference that Dr Lee had been dishonest. The patient’s evidence was one of eight ‘planks’ of evidence relied upon.
• The argument that the patient’s statement was unduly influenced by the letter of complaint was rejected.

Closing remarks

As the Judge observed (at paragraph 28):

“Hearsay evidence will, by its nature, feel unfair to a person who is being maligned by that evidence…the accused person is bound to feel disadvantaged by losing the ability to confront his or her accuser. There are risks inherent in hearsay evidence and a robust, thorough process is required to ensure that it is only admitted where it is fair.”

Conclusion

The judgment in this case provides helpful guidance as to the approach to be taken to cases involving witness evidence given by someone who has since died and a reminder of the legal and practical considerations that arise when such evidence is sought to be relied upon.

Capsticks’ view

The need for caution and corroboration, always present in relation to hearsay evidence, is significantly heightened in relation to the evidence of a witness who has died. In those circumstances it was incumbent on the regulator to identify and rely upon a number of ‘planks’ of evidence in addition to the patient’s witness statement so as to prove the allegation of dishonesty. It was also important to demonstrate that the patient’s witness statement had been produced from his recollection and was not a mere restatement of his original complaint.

This case provides important lessons for all regulators in preparing cases that are dependent on the recollection of a witness who has passed away. Including as much ‘recollection material’ in witness statements as well as identifying corroboration will assist in allowing panels to admit and then be able to evaluate the evidence of deceased witnesses.

How Capsticks can help

Capsticks’ market leading professional disciplinary practice acts for a wide range of statutory and non-statutory regulatory bodies. Our team of specialists is experienced at navigating complex evidential issues such as those discussed in this article. To find out more, please contact Ros Foster, Partner, Regulatory Division.