Nandini Banerjee v General Medical Council
High level summary
Dr Banerjee applied for Judicial Review of a second decision made by a Tribunal of the General Medical Council's Medical Practitioners Tribunal Service not to allow her restoration onto the register. The Court rejected the application.
The Court said that Tribunals have an inquisitorial function and can therefore ask probing questions if these are supported by adequate reasoning. With specific reference to restoration applications, it is clear that the process differs from the usual fitness to practise proceedings in that there is no separate fact-finding stage. There is also no half-way decision to be made in such proceedings, either an applicant is restored to the register or the application is rejected.
Dr Banerjee, a trainee doctor, was carrying out her Foundation Year 2 training. As part of this process, training records containing her post-graduate medical training were electronically entered into her 'e-portfolio'. Dr Banerjee was found to have falsified three of her e-portfolio records to show above average grades and positive comments from her colleagues. Some of these colleagues had actually raised concerns relating to her capabilities. Dr Banerjee further attempted to disguise her dishonesty by sending cover-up emails to those parties involved.
After a short period of reflection, Dr Banerjee admitted her dishonesty to her employer and after an investigation, she was dismissed from her post and a referral was made to the General Medical Council ["GMC"]. The GMC referred Dr Banerjee to a final hearing before a Tribunal of the Medical Practitioners Tribunal Service ["MPTS"] on the grounds of probity and deficient professional performance.
In July 2011 and before her fitness to practise proceedings advanced to the final hearing stage, Dr Banerjee applied for Voluntary Erasure ["VR"]. She stated that she had decided to no longer pursue a career in medicine and that she would be moving to another country to pursue a different career. The GMC accepted and granted the VR application.
Restoration Application No.1
In March 2012, Dr Banerjee applied for restoration onto the register. Dr Banerjee represented herself during this application. Dr Banerjee's application was rejected by the MPTS. This was not due to the Tribunal holding concerns over her clinical competency, but instead as a result of the probity concerns raised during the original fitness to practise proceedings. The Tribunal barred her from any further application for restoration for 12 months.
Restoration Application No.2
On 12 February 2014, Dr Banerjee made a second application for restoration. This was referred to a new MPTS Tribunal and again the application was refused on similar grounds. The Tribunal barred Dr Banerjee from applying for restoration again for 24 months.
Application for Judicial Review
Dr Banerjee sought permission to apply for Judicial Review ["JR"] of the second refusal in October 2014. The grounds for the JR were (Grounds 1, 3 and 4) that she had been denied a fair hearing and that the nature, tone and content of the Tribunal's questioning and the attitude showed bias. Grounds 2 and 5 complained that elements of the Tribunal's decision were irrational. Permission for the JR was granted on Grounds 1, 3 and 4 and denied on Grounds 2 and 5.
Mr Justice Walker
In para 137 of his Judgment, Walker J sets out Dr Banerjee's grounds for seeking the JR:
"…overall fairness could be discerned from a combination of six factors: (1) the number of questions asked…,(2) the apparent closed mind(s) (by reason of the manner and wording of questions), (3) the style of questioning (language of the lawyer and in essence a prosecutor), (4) the questions being formulated by way of cross-examination – such as to obtain a concession against interest from the Claimant; (5) overall and in combination from all Panel members over the whole "trial" an appearance of unfairness and a real danger that the hearing was unfair; and (6) a movement into counsel's shoes when judged against the questioning by GMC counsel instructed to present the GMC case."
Walker J dismissed all grounds of the JR and dealt with these in turn:
Walker J did not accept that an adverse inference could be drawn from the number of questions asked by the tribunal. The questions were instigated by a lack of documentation in front of the Tribunal and the Tribunal's inquisitorial nature (see paras 125 to 130 whereby Walker J describes the inquisitorial nature of the Tribunal's powers).
The alleged "closed minds" which are demonstrated by the manner and wording of questions was misinterpreted by Dr Banerjee and her legal team.
The GDC case presenter used the language of a lawyer and was in essence a prosecutor. The objection to this had no merit.
With regard to the alleged cross-examination by Tribunal members, Walker J felt that the Tribunal often explained the nature of their questioning to Dr Banerjee and used language which was appropriate in relation to the context of the matter.