Two complainants, similar stories, one registered professional: should fitness to practise committees consider the accounts together to rebut coincidence? High Court guidance in Professional Standards Authority for Health and Social Care v The General Medical Council and Dr Neill Charles Garrard [2025] EWHC 318 (Admin) (‘Garrard’) clarifies when and how fitness to practise panels may cross‑admit evidence to assess the improbability of coincidence. This post explains the coincidence approach to cross‑admissibility and highlights the importance of being live to the issue throughout the life of a case.
Garrard: context and outcome
In Garrard, MacDonald J upheld an appeal against a decision of the Medical Practitioners’ Tribunal Service (‘MPTS’) which had declined to cross‑admit the evidence of two patients alleging sexually inappropriate behaviour by Dr Garrard in different hospitals on separate occasions. MacDonald J recognised that the legal principles associated with cross admissibility can be complicated and, after reviewing relevant criminal authorities, set out the correct approach to be taken in fitness to practise proceedings.
The allegations concerned separate incidents in March and December 2021 involving two vulnerable female patients seen by Dr Garrard in his capacity as a locum A&E registrar. His conduct was said to include sexually inappropriate/motivated behaviour and chanting/speaking to both patients in a “hypnotic” way.
To rebut Dr Garrard’s suggestion that the similarities in the allegations were merely coincidence, the General Medical Council argued that the Tribunal could rely on the ‘cross-admissibility principle’ to find this improbable.
The Tribunal refused to do so. Dr Garrard’s fitness to practise was found not to be impaired and, on appeal by the Professional Standards Authority, MacDonald J held that the issue of cross admissibility had been dealt with incorrectly.
The case has since been reconsidered by a fresh tribunal and, although evidence was ultimately cross admitted, the allegations were dismissed.
Relevant Legal Principles
Cross‑admissibility may be justified on two grounds (R v Freeman [2008] EWCA Crim 1863):
- to establish propensity; and/or
- to rebut coincidence.
The legal principles differ in respect of each. This post deals solely with coincidence.
When invited to cross admit under the coincidence approach, decision makers are being asked to consider that the evidence in relation to a particular allegation may appear stronger and more compelling when all the evidence, including that relating to other allegations, is looked at as a whole. This is because, as noted by Rix LJ in R v H [2011] EWCA Crim 2344:
‘the reality is that independent people do not make false allegations of a like nature against the same person, in the absence of collusion or contamination of their evidence’.
Garrard highlights three key principles relevant to the coincidence approach:
- There is no need for any of the allegations to have been found to be true before the evidence can be cross admitted to rebut coincidence;
- To be capable of cross-admission, there must be a sufficient connection and similarity between the facts of the allegations (R v Chopra [2006] EWCA Crim 2133);
- Collusion and contamination must be excluded as an explanation for the similarities before a decision maker can conclude that the likelihood of there being an innocent explanation has been reduced.
Applying the Principles in Practice
Context is everything
With the above principles in mind, for regulators and professionals alike, careful comparison of the complainants’ accounts is essential. At first glance the allegations may appear almost identical, but context may paint a different picture.
Despite MacDonald J observing that it was ‘difficult to see how… the Tribunal could have reached any other conclusion than that there was sufficient connection and similarity between the facts of the allegations’ made between the two complainants, when Dr Garrard’s case was considered afresh by a newly constituted tribunal, the fact of two vulnerable females complaining of sexually inappropriate behaviour in a clinical setting did not appear to be enough. Instead, the tribunal carried out a detailed analysis of the similarities and differences between the complainants’ evidence before ultimately deciding to cross admit.
With this in mind, regulators and professionals would be wise to identify and monitor similarities and differences in the accounts provided as well as considering wider contextual details. Points to think about may include:
- The words/descriptions provided by complainants;
- The relevant circumstances of any interactions between the professional and each complainant; and
- The nature of the relationships between the professional and complainants.
Independence matters
The more independent the complainants are, the less probable it is that the similarities in their allegations are down to coincidence.
Any relationships or conversations between the complainants should be considered. If there is evidence that the allegations have been discussed between parties, it is less likely that collusion or contamination can be excluded. Professionals should think carefully about any requests for specific disclosure and how this exercise may assist them to call independence into question.
From the regulator’s perspective, to reduce the risk of contamination, investigations should be conducted carefully so as to ensure the evidence of one complainant does not creep into the other’s.
Coincidence exists
Even where the evidence has been cross-admitted and there is nothing to support collusion or contamination, coincidence is still possible.
If defending similar allegations, it is even more important that professionals are proactive in defending the complaints. Where evidence has been cross-admitted to rebut coincidence, simply submitting that both complainants have independently come forward to raise false allegations that just so happen to be similar may not be so persuasive.
Where possible, it would be prudent to consider and produce evidence supporting alternative explanations for inaccurate or similar accounts having been provided. To illustrate just how effective this may be, in Dr Garrard’s case the newly constituted Tribunal in January 2026 was persuaded that:
‘both patients were experiencing symptoms that meant the creation of a false memory (through dreaming, hallucination, medication or confusion) was entirely possible as supported by the expert evidence. Dr Garrard had likely been their last significant face to face interaction before sleep and it is perhaps not unlikely that when they were tired they may both have experienced his softly spoken voice to have felt hypnotic.’ [para. 223]
Summary
‘Sufficient’ similarity and connection, and the exclusion of collusion or contamination are prerequisites to rebutting coincidence. Regulators must clear these hurdles before inviting cross‑admission and, even then, the conclusion that coincidence is unlikely does not mean that coincidence is impossible.
