"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Banerjee v General Medical Council  EWCA Civ 78
The Appellant, Dr Nandini Banerjee (NB), was a Doctor who was registered with the General Medical Council (GMC). She had applied to the GMC for voluntary erasure (VE) from the Register following allegations in respect of her fitness to practise (which were not addressed within this judgment). At her second restoration hearing, the Panel refused to restore her name to the Register. Accordingly, NB applied for judicial review of this decision, which was subsequently refused on 11 August 2015. In the present case, NB appealed the refusal of her application for judicial review.
NB’s appeal was based on the fact that the hearing before the Panel was unfair:
1) due to the number, nature, tone and content of questions asked by the Panel members and,
2) because in considering the claim for judicial review, the Judge wrongly failed to step back from his detailed analysis of particular interventions, and so failed to consider the overall fairness of the hearing in the light of witness statement evidence of NB and her Solicitor as to the conduct of the hearing.
The Court concluded that the first instance Judge was entitled, and correct, to examine the particular interventions by the Panel. This was especially the case because the skeleton argument before the Judge stated that NB specifically relied on the content of the specific interventions. The Court did not make any further comments about this point.
On the first point, the questioning of NB by the Panel members, the Court noted that NB’s case in respect of fairness was based upon the Panel members repeatedly asking hostile questions about her application for VE from the Register. At the time of her VE application, NB had assured the GMC that she no longer wished to practise as a Doctor, despite simultaneously looking for employment as a Doctor overseas and applying to be registered as a Doctor in the Maldives. NB submitted that this issue had been determined in her favour at her first restoration hearing; and therefore did not need to be revisited by the Panel.
NB stated that the previous determination on this point, and the fact that she did not expect to be questioned again on this topic, in addition to the number, nature, tone and content of the questions put to her by the Panel, were unsettling for her and meant that her responses to these questions were evasive. She also submitted that the Panel were intent on finding dishonesty in her conduct, particularly because of the fact that they questioned her about her command of English, financial position in 2009 to 2012, as well as her pre- and post- undergraduate studies.
In considering the aforementioned matters, the Court stated that the Panel was required to reach a decision which fulfilled the main object of the GMC: to protect, promote and maintain the health and safety of the public, according to Section 1(1A) of the Medical Act 1983. Consequently, the Panel were able to investigate the matters which had been considered on the first restoration application. Additionally, Rule 24 of the GMC (Fitness to Practise) Rules Order of Council 2004/2608 requires the Presenting Officer at a restoration hearing to address the Panel as to the background of the case and the circumstances in which the applicant's name was erased from the Register.
The Court highlighted the fact that NB had personally, in her own examination in chief, referred to her previous assurances at the time of her VE application about no longer practising as a Doctor. Throughout the hearing, NB was also free to put her case forward without interruption before being questioned by the Panel. Thereafter, her Solicitor was able to re-examine her so that she had the opportunity to present her case more clearly than when she had responded to the Panel’s questioning. The Court noted that when cross-examined by her Solicitor, her answers were not significantly different to her previous responses.
A further point noted by the Court was that it was understandable and legitimate for the Panel to pursue questions in the public interest because NB’s answers to the questions in her examination in chief about her application for VE had raised queries. In any event, the decision of the panel at the first restoration application was non-committal on the issue of NB’s assurances about not intending to practice. It was therefore open to the Panel to find out further information about her assurances if they decided that it was necessary.
The Court stated that it was particularly important for the Panel to seek clarification from NB regarding her previous assurances that she no longer wished to practice, because the grant of VE had removed formal charges of professional misconduct and the sanction that would have followed. The Panel had also not been informed by NB’s Solicitor that Counsel on behalf of the GMC had told him that these assurances did not need to be revisited during the hearing; and so proceeded to question her on this basis, as they had not been told otherwise.
The Panel had only been provided with a limited number of documents at the beginning of the hearing until the defence bundle was passed to them; despite a number of these documents being referred to throughout the hearing. It was therefore necessary for the Panel to ask NB additional questions for clarification.
The Court also referred to the fact that it was not until close to the end of NB’s evidence that she questioned why she was being asked about her VE application; and this is the point at which her Solicitor intervened. Prior to this, the Panel had asked on several occasions whether anyone objected to questions about NB’s VE application; and there had been no objections. NB’s Solicitor had not asked for an adjournment in order to obtain any additional evidence or to seek instructions, and had been able to address NB’s responses and the impact of the Panel’s questions on her during his closing submissions.
In summing up, the Court was keen to note that despite the Panel's directness in asking questions about the VE application; it did not undermine the fairness of the proceedings. The Panel members were entitled to ask the questions they did in order to obtain clear answers from NB in light of the lack of documents and there being no cross-examination on the issue by Counsel on behalf of the GMC. The Panel had also been unaware until near the end of her evidence, that NB and her Solicitor had agreed the restricted scope of their enquiries into the circumstances discussed at her first restoration hearing.
The Court appreciated that due to such confusion, NB may have felt uncomfortable during the hearing, but indicated that it did not undermine the legitimacy and appropriateness of the Panel's questioning about the VE application. This was pertinent because the exchanges with NB regarding this were extremely brief and did not undermine the fairness of the hearing overall.
The Court added that there was no basis for challenging the Panel's reliance in its decision to reject the application for her restoration to the Register on the seriousness of NB’s original dishonesty. NB had stated that her colleagues had fabricated her lack of capabilities and had conspired against her. The Panel felt that this demonstrated her continuing lack of insight and understanding of the serious nature of her behaviour and therefore, there was a risk of repetition of similar behaviour, which is why they refused her application for restoration to the Register.
Sir Terence Etherton MR commented as follows
“Even if I had been of the view that the number, nature, tone and content of the questions asked by the Panel had rendered the proceedings unfair insofar as they led the Panel to consider that "[NB] [was] evasive about how [she] had appeared to have decided to seek VE while almost simultaneously seeking registration and job opportunities in other jurisdictions I consider that the Panel would inevitably have refused the application for restoration even if the Panel had not found that she had been evasive in her answers.”
The appeal was dismissed.
This case provides helpful guidance to those who represent regulated individuals. Firstly, in making applications for voluntary erasure, where there are outstanding fitness to practise allegations, regulated professionals and those who represent them need to give careful thought to the assurances they provide to the regulator about future practice. The Panel, and subsequently the Court, was concerned as to the assurances provided by NB that she no longer wished to practice when she subsequently made her application for restoration.
The dismissal of this appeal also demonstrates the deference given to Panels who consider cases such as the present one by the Court. It highlights the wide scope of the Panel’s discretion in examining the background of a case put before it. This is especially so where further information is required about previous events in order to make a decision in the current case. In this instance, the Court was not willing to accept that the Panel was precluded from considering matters which the Claimant considered had been adequately discussed on a previous occasion.
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