Dr Siong Lee v General Medical Council

MRS JUSTICE BRUNNER : Introduction

1. This appeal is brought by Dr Siong Lee against a decision of the Medical Practitioners Tribunal on 16 January 2025. The tribunal found that the appellant had dishonestly falsified a patient’s records. As a result of those findings the tribunal subsequently determined that his fitness to practise was impaired and suspended his registration. The issues are, in summary, whether a witness statement by a deceased patient (“Patient A”) should have been admitted in evidence by a preliminary tribunal, and whether the panel which heard the substantive evidence was wrong to prefer Patient A’s evidence over the appellant’s evidence. It is accepted that if the factual findings stand, then the finding of impairment and the sanction also stand.

2. The appellant worked as a GP at the King Street Medical Centre, Dukinfield, Cheshire (“the Practice”), having qualified in 1996. He was a partner between 1997 and 2021.

3. The central chronology is as follows. i) On 27 November 2017 Patient A had a routine blood test. The same-day result showed a high level of prostate-specific antigen (PSA) which is a potential marker for prostate cancer. The appellant reviewed the blood test results that day and made an entry in Patient A’s record indicating that a routine appointment would be made. He did not make any entry at that stage about a telephone consultation with Patient A, or any further investigation or treatment plan. ii) On 13 February 2018 Patient A had a face-to-face consultation with the appellant about a possible hernia. The appellant completed a referral to Mediscan for an ultrasound to rule out a hernia. On the same day the appellant retrospectively amended Patient A’s record of 27 November 2017 by adding a note that a prostate ultrasound scan was to be taken. The appellant added a prostate check to the hernia ultrasound referral. iii) In March 2018 the prostate scan which had been initiated in February 2018 was reported as normal. iv) In the latter half of 2019 Patient A was diagnosed with prostate cancer. v) On 11 May 2020 the Practice received a letter from Patient A complaining about his care (“the complaint letter”). He said that he had been shocked to find out around the time of diagnosis that a previous blood test in November 2017 had showed elevated PSA levels, and was concerned that he had not been given that information by the Practice. vi) On 12 May 2020 the appellant retrospectively amended Patient A’s record of 27 November 2017 to add a note that a telephone consultation had taken place on 27 November 2017. vii) On 13 May 2020 the appellant retrospectively amended Patient A’s record of 27 November 2017 for a third time, to add a note indicating that Patient A had said that he did not want a Digital Rectal Examination. viii) The Practice responded to Patient A’s complaint in a letter dated 9 June 2020 (“the June letter”) which included accounts from the appellant and another doctor about various events. There is no dispute that the appellant wrote the parts of that letter relating to his appointments with Patient A. Under a heading ‘27/11/2017 Dr Lee’ the letter said “you attended for a routine blood test…which included a routine PSA test with a reading 9.4. I requested for you to attend surgery for a digital rectal examination (DRE) to examine your prostate but you phoned me to discuss the results. I recall that you did not want a prostate examination. At the time you did not report any symptoms of prostate enlargement or prostate cancer. I therefore referred you to have an ultrasound scan of your prostate”. Under the next heading ‘12/3/2018’ the letter says ‘ultrasound scan reported as normal’. There is no mention of the referral for ultrasound which had been made in February 2018 and the letter implies that the result in March 2018 was from a scan that had been initiated in November 2017. ix) Patient A subsequently brought a clinical negligence claim. The date when the Practice became aware of that is unclear but it is accepted to be after the amendments to the patient’s records.

4. Patient A made a witness statement on 16 November 2023. The Respondent referred the matter to the tribunal service on 6 February 2024. Patient A sadly died on 8 June 2024. The Respondent applied to rely on a witness statement made by Patient A, which exhibited Patient A’s complaint letter.

5. The appellant made a statement on 9 September 2024 in which he accepted that he had made the retrospective amendments set out above. His position at all times was that the amendments were made to give an accurate record of Patient A’s care, and that the contents of the amendments and the June letter were truthful. He maintained that in November 2017 he had discussed the PSA results with Patient A in a telephone consultation, recommended a Digital Rectal Examination which Patient A had declined, and referred Patient A for an ultrasound. Patient A’s position was that no such telephone call had taken place, and he had not been alerted to the results of the blood test nor declined any investigation.

6. On 14 October 2024, a preliminary tribunal of the Medical Practitioners Tribunal Service (“the preliminary tribunal”) admitted Patient A’s witness statement and exhibit. On 16 January 2025, a tribunal hearing the substantive evidence (“the substantive tribunal”) concluded that allegations were proven. On 2 May 2025, the substantive tribunal found that the appellant’s fitness to practise was impaired and suspended him for 12 months. The Allegations

7. Given the nature of this appeal, it is not necessary to set out the allegations in full. At the half-way stage of the substantive proceedings, the appellant’s counsel submitted that there was insufficient evidence for the case to proceed. The substantive tribunal did not agree, save in relation to a minor part of the allegations (relating to an allegation that the appellant had written ‘urgent not heard anything’ on the ultrasound referral), which were not taken forward. The remainder of the allegations were found proved on 16 January 2025.

8. The proved allegations were, in summary: i) In November 2017 when the appellant reviewed the PSA results he did not have a telephone consultation with Patient A to discuss results with him, did not recommend a Digital Rectal examination and had not requested an ultrasound. ii) The appellant had retrospectively amended Patient A’s records on three separate occasions in the ways set out above. iii) The appellant had written the June letter after concerns had been raised by Patient A about his care. iv) The amendments to Patient A’s records and the June letter were dishonest, and were created to avoid potential criticism of the care and treatment which was/was not provided to Patient A. The Law

9. There was no dispute about the relevant law in this case.

10. Section 40 of the Medical Act 1983 provides a right of appeal to the High Court against a decision by the Medical Practitioners Tribunal to sanction a practitioner. This court can only allow the appeal if the decision of the relevant tribunal was wrong or unjust because of serious procedural or other irregularity. It is well established (as set out, for example, in Yassin v the General Medical Council [2015] EWHC 2955 (Admin) ) that the jurisdiction of this court in such an appeal is appellate and not supervisory, and that the case proceeds by way of a re-hearing, although evidence is not recalled. Findings of the tribunal below should be given appropriate weight, and it should be borne in mind that the tribunal has the benefit of hearing witnesses. Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable. The appeal court will interfere with primary findings of fact where they are shown to be materially wrong, including where they are shown to be against the evidence. The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible.

11. Admission of hearsay at the tribunal is governed by rule 34(1) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (“the Rules”) which provides that the Tribunal may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law.

12. The relevant principles in relation to hearsay were helpfully drawn together by Mr Andrew Thomas QC, sitting as a Deputy High Court Judge in Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 in the following way: a. “The admission of the statement of an absent witness should not be regarded as a routine matter. The Rules require the Panel to consider the issue of fairness before determining the evidence. b. The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to the objection to admissibility. c. The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reason does not automatically result in the exclusion of the evidence. d. Where such evidence is the sole or decisive evidence in relation to the charges, the decision whether or not admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must consider the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either than the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.” The Preliminary Tribunal’s Determination in relation to hearsay

13. The preliminary tribunal heard argument relating to the admissibility of Patient A’s hearsay evidence and gave a written ruling.

14. The preliminary tribunal directed itself in line with the principles set out above.

15. In reaching its decision the tribunal had regard to various points including: i. The seriousness of the allegation. ii. The potential prejudice caused by the fact that Patient A could not be questioned. iii. The background to the case including ongoing civil proceedings; in that context the tribunal noted that both Patient A and the appellant had a motive to fabricate evidence. iv. Patient A had cooperated with the GMC investigation and formalised a statement. v. Patient A’s evidence was not the sole evidence available. Other evidence included the absence of any record of a referral, and the appellant's admission that he had amended records.

16. The tribunal balanced those factors and determined that it was fair to admit the statement in proceedings and was in the public interest to do so, considering that any prejudice suffered by the appellant could be mitigated by submissions to the tribunal. The Substantive hearing and Determination

17. The hearing took place over 16 days from 4 November 2024. Some of the evidence most relevant to this appeal is summarised below.

18. An Operations Manager of a company Mediscan Diagnostics Services Ltd which provides ultrasound gave evidence. That witness had given evidence that there was no e-mail referral from the Practice for an ultrasound of Patient A between 27 November 2017 and 5 March 2018. The witness’s belief was that all referrals were made by e-mail from 2017. However, the tribunal noted in its determination that there was a 2018 fax referral which in the tribunal's view ‘rais[ed] the possibility that a referral could have been made by fax in November 2017.’

19. The appellant provided a witness statement and gave evidence. He maintained his position that he had retrospectively updated medical records for an entirely innocent reason, to provide a clear and accurate record of events. He said, in summary, that he had forgotten to write complete notes in November 2017. He realised his error when he next saw Patient A face-to-face in February 2018, at which point he referred him for an ultrasound and amended the 2017 record to refer to an ultrasound. He made further amendments two years later on receipt of the complaint letter to ensure that the records accurately recorded everything that had happened.

20. As the substantive tribunal recorded in its determination, the appellant’s evidence was inconsistent in some significant parts. For example, in his written statement he said that he could not recall the precise wording he had used when (on his evidence) he discussed the PSA result with Patient A, whereas in his oral evidence he had been adamant that he had told Patient A that he needed to ‘stick his finger up his backside’ which was a ‘memorable conversation’. As another example, the appellant said in his written statement that he was confident that he had referred Patient A for ultrasound in November 2017 but accepted in cross examination that it was ‘very likely’ that he had not done so until February 2018.

21. The tribunal gave itself full and accurate directions in relation to the legal approach to take to the case, including in relation to hearsay. No criticism is made of those directions, which are unimpeachable.

22. In relation to Patient A's hearsay, the Tribunal agreed with a submission made by the appellant’s counsel that Patient A could have been erroneous in his recollection of events without having lied. The tribunal directed itself to evaluate the content of Patient A’s witness statement bearing in mind that he had not been cross examined and bearing in mind other factors, such as the possibility that his evidence may have been affected by what he was told by the oncologist and nurse at the time of diagnosis in 2019. The tribunal took the view that the consistency between Patient A’s witness statement and letter of complaint was “relevant in that the letter of complaint was written much nearer in time to the original events of November 2017”. The tribunal rejected a submission by counsel for the GMC that evidence from the appellant that he had a good relationship with Patient A meant that Patient A was unlikely to invent problems.

23. The tribunal then set out a structured analysis of the evidence, concluding that the appellant had been dishonest. The Appeal

24. Both parties were represented at the hearing in front of me and helpfully amplified their written submissions.

25. It was agreed that both the preliminary and substantive tribunals had directed themselves correctly in the law and set out the law correctly in their determinations. There was one minor error in relation to misquoting a case name, but that was not pressed upon me as a material error by counsel for the appellant and does not warrant any further comment.

26. I have considered the appellant’s grounds of appeal in their entirety, although a summary suffices here. There were two broad limbs to those grounds i) First, it was said that that the preliminary tribunal’s decision to admit the hearsay evidence was wrong and unjust because it was a serious procedural error. It was submitted that the preliminary tribunal had not given sufficient consideration to the prejudice which the appellant would suffer, had wrongly placed reliance on the appellant’s witness statement which should have been ignored at that stage in proceedings, had effectively reversed the burden of proof by assuming that the appellant would give evidence, had placed too much weight on untested Mediscan evidence and wrongly concluded that Patient A’s evidence was not sole and decisive. ii) Secondly, it was said that the substantive tribunal had fallen into error in preferring Patient A’s evidence and given inadequate reasons for doing so. It was submitted that the tribunal wrongly relied on consistency between Patient A’s witness statement and letter of complaint, gave too much weight to Patient A’s statement and failed to make clear what weight it had attached to Patient A’s statement, and placed too much weight on the fact that the disputed conversation had not been contemporaneously recorded.

27. The Respondent’s position was that neither the preliminary tribunal nor the substantive tribunal had erred. The preliminary tribunal had applied the correct law, had given appropriate consideration to factors weighing against admission of the hearsay evidence, and was entitled to admit the evidence on the basis that it did. The substantive tribunal had also applied the correct law and procedure, had taken a careful approach to the evidence, and had set out appropriate reasons. Discussion Preliminary Tribunal

28. Hearsay evidence will, by its nature, feel unfair to a person who is being maligned by that evidence, whether in criminal or disciplinary proceedings. 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.

29. The task of the preliminary tribunal was to determine whether to admit the hearsay evidence. There is no merit in the submission that the tribunal failed to apply the law which it had accurately set out. To the contrary, the preliminary tribunal’s decision is a clear and thorough analysis, applying the right tests and reaching a sound conclusion.

30. I cannot accept the appellant’s submission that the preliminary tribunal should have shut its eyes to the existence of the appellant’s statement and should have reached its determination based solely on the evidence relied on by the GMC. In order to evaluate whether admitting the hearsay would meet the ‘fair and relevant’ test it was important for the preliminary tribunal to know what the issues in the case were. That dovetails with the approach taken in criminal proceedings, where a judge determining admissibility can consider the contents of a defence statement ( R v BOB [2024] EWCA Crim 1494). That is a document setting out the issues in the case to assist with case preparation and disclosure, which is unlikely to ever be seen by the jury .

31. In this case, the issues were apparent from the appellant’s statement and his counsel’s written submissions. The appellant accepted authorship of most of the records, accepted authorship of relevant parts of the June letter, accepted that he had retrospectively changed records. That meant that the central issue in the case was dishonesty i.e. whether the events which were described in the amended records (a telephone consultation, a recommendation for examination, a referral for further investigation) had actually occurred, or were dishonest inventions to cover up poor practice.

32. In a case such as this, where the appellant’s concessions narrowed the issues, the preliminary tribunal could only have been helped in its determination of admissibility by taking into account the appellant’s position. Identifying issues is a first step in making an assessment of relevance and fairness. It is of note that the appellant’s counsel herself sought to identify the issues at the outset of her skeleton argument, in order to support points which she made in opposing the introduction of the hearsay. There will, of course, be some cases where the issues have not been narrowed at the preliminary stage, including cases where the registrant has not engaged with the proceedings, and in those cases the preliminary tribunal will approach its determination of admissibility on the assumption that everything in the allegations is contested.

33. I also do not accept the proposition that the preliminary tribunal effectively reversed the burden of proof when it found that the appellant’s own evidence ‘may corroborate’ Patient A’s account. The preliminary tribunal had to identify material which helped to assess the reliability of the hearsay evidence. That included other material that supported or undermined Patient A’s account. The appellant’s admission that he had retrospectively amended records was significant in that context. It meant that the original unamended record which had been entered on 27 November 2017 matched Patient A’s account in that there was no record of a telephone conversation or any investigation. Taking that into account in the assessment of reliability of hearsay does not in any sense reverse a burden of proof.

34. The tribunal similarly noted other material which was capable of supporting the hearsay, including the Mediscan evidence. Although that evidence was later undermined at the substantive hearing, there was nothing on its face to suggest that it was inherently unreliable and the preliminary tribunal was entitled to take it at face value when determining admissibility. The tribunal gave explicit consideration to the prejudice which the appellant might suffer if the hearsay was admitted, and was right to identify that submissions could mitigate that prejudice. Indeed, as anticipated by the preliminary tribunal, the appellant’s counsel later made detailed submissions about the questions which would have been asked of Patient A to assist the substantive tribunal in assessing the weight to give to that evidence. The preliminary tribunal was not wrong to admit the evidence, and nor was the decision unjust. Substantive Tribunal

35. The grounds of appeal point to various ways in which the reasons are said to be deficient. As one example, it was submitted that the tribunal should have been more explicit about the degree of weight which it placed on Patient A’s evidence. I do not agree. It is clear from the decision that the tribunal started with an open mind as to both reliability and weight, and acknowledged factors which might undermine or bolster Patient A’s account. The tribunal then examined the other evidence in the case to see whether it supported Patient A’s version of events or the appellant’s version. Ultimately, having considered all of that evidence, the tribunal reached a conclusion which was on all fours with Patient A's account. The reasons would not be improved by a narrative of that process saying ‘at the beginning we gave Patient A’s statement some weight, then we gave it more weight, and then by the end of our analysis we accepted it entirely’. The decision was commendably clear; I adopt the description of it by Ms Hearnden counsel for GMC as “a conspicuously careful piece of analysis about logical inferences and plausibility”.

36. A further criticism of the reasons was that the tribunal wrongly relied on the consistency between Patient A’s letter of complaint in 2020, and his statement in 2023. Counsel for the appellant maintained that such an approach was illogical, as Patient A would have used his complaint letter to refresh his memory while writing his statement, and thus the two documents could not independently corroborate each other. The approach complained of is not the approach that the tribunal took. The tribunal only relied on the letter of complaint as evidence that Patient A had first made his complaint nearer in time to the original events than the statement.

37. The grounds also point to various ways in which the decision was said to be wrong. In the context of factual findings, the question for this court is whether the tribunal’s conclusions were unsupported by evidence. It is right that Patient A was the only source of direct evidence that the consultation had not taken place, but there was a wealth of other evidence which, as the tribunal found, could properly found an inference that the appellant had been dishonest.

38. The tribunal listed eight evidential planks which it relied on to conclude that the retrospective amendments were false and dishonest. As an example, the tribunal analysed the sequence of amendments. The tribunal did not jump to any conclusions from an absence of records but instead made a careful analysis of precisely what was, and what was not, in the records at various points in time. The first amendment referred to an ultrasound scan only, whereas the second and third amendments, made two years later, added other details: a telephone consultation, a recommendation for examination and a refusal to be examined. The tribunal understandably concluded “if, as he asserted, Dr Lee’s purpose in amending the records in February 2018 was to create an accurate record it would have been logical for him at the same time to have included the contents of the 27 November 2017 telephone conversation if it had indeed taken place.” The appellant’s inconsistency in some central parts of his evidence similarly pointed away from an innocent explanation, and the tribunal was well placed to make an assessment of his credibility. The hearsay evidence of Patient A was just one of the eight planks of evidence relied on in relation to the records. The same fair and methodical approach was taken by the tribunal in relation to other aspects of its conclusions.

39. The tribunal’s finding cannot be said to be against the evidence in any way. Quite the contrary is true: it was entirely in line with the evidence. Conclusion

40. None of the grounds of appeal are made out. The decisions of the preliminary and substantive tribunals in this case were neither wrong nor unjust. The appeal is dismissed.