Before a fair tribunal?

Here's some thoughts on the latest Christian versus employer case to hit the headlines, Dr Richard Scott before the General Medical Council.

The general background is that a patient of Dr Scott's complained that he had been left feeling distressed by the Doctor's references to religion during the consultation. He made various complaints that amount to pretty outrageous behaviour if they are true. The allegations are repeated in full in the decision linked to below.

The GMC allowed the patient, who remains anonymous, to give his evidence by telephone. Dr Scott's representative was allowed to cross-examine him.

The tribunal found against Dr Scott on most of the allegations made, and entered a note in his disciplinary record as a result.

These are my slightly augmented tweeted notes as I read the GMC's case this morning:

• Reading GMC decision on Dr Richard Scott. The Daily Mail suggests significant procedural unfairness. 
• Dr Scott did not endear himself to the tribunal by going on national radio to state his religion had more to offer than that of his patient.
• Nor by his "absence of insight" and "strongly expressed views during this hearing."
• However, "in the Committee's view both witnesses were honest and not trying to deceive."
• My concern is Patient A gave evidence by telephone yet despite finding of credibility, Dr Scott's responses "in conflict with the evidence."
• Suggesting there was 'what Dr Scott said', and 'the objective evidence', when the hearing's purpose was to establish the objective evidence.
• This doesn't sit comfortably with the tribunal finding him a credible witness when there was not 'equality of arms' between the witnesses.
• And the tribunal's findings amount to 'we don't believe you.' Dr Scott clearly didn't help himself, but judicial review seems likely on procedural fairness grounds.
• Re fair tribunals: "axiomatic" in resolving direct conflicts of evidence, demeanour of "critical importance." See R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) at para 44:

"It is axiomatic that the ability to cross-examine in such circumstances is capable of being a very significant advantage. It enables the accuser to be probed on matters going to credit and his motives to be explored. It is no less axiomatic that in resolving direct conflicts of evidence as to whether misconduct occurred the impression made on the tribunal of fact by the protagonists on either side and by their demeanour when giving oral testimony is often capable of assuming great and sometimes critical importance."

The GP himself admitted that if the allegations were true he would be in breach of GMC guidance on discussing matters of faith in a consultation, so there is no argument that he should face some disciplinary penalty based on the findings of the tribunal. But the crux of my concern here is that Dr Scott did not face a fair tribunal in the first place. The argument is the patient's word against the doctor's, and therefore demeanour is of the utmost importance.

It wouldn't surprise me if Dr Scott was advised to seek judicial review of the GMC with a view to having its decision quashed and remitted for a fair hearing.