Banerjee v The General Medical Council

A fitness to practise panel may ask direct or robust questions where they are legitimately relevant to public protection. Such questioning does not, by itself, make a hearing unfair. Fairness is assessed in the circumstances as a whole, including the opportunity to give evidence, respond to questioning, seek an adjournment, re-examine witnesses and make closing submissions. A panel considering restoration may investigate matters addressed in an earlier restoration application, particularly where the earlier decision was non-committal and drew no positive or negative inference.

Dr Nandini Banerjee appealed against the dismissal of her application for judicial review of a Fitness to Practise Panel’s refusal to restore her to the medical register. Mr Justice Walker dismissed the application in the Administrative Court on 11 August 2015: [2015] EWHC 2263. The appeal concerned whether the Panel’s questioning, particularly about the circumstances of her voluntary erasure and assurances that she would not practise, rendered the restoration hearing unfair. It also concerned whether the Panel was entitled to revisit matters considered during an earlier restoration application.

Appeal dismissed. The Court of Appeal, in a judgment delivered by Sir Terence Etherton MR and agreed to by Lady Justice Rafferty and Lady Justice Sharp, rejected the challenge to the fairness of the restoration hearing.

1. The applicable principles concerning unfair hearings and excessive or inappropriate judicial interventions were accepted by both parties, with reference to Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 448. The fairness of the hearing had to be assessed overall. The Judge was entitled to examine the particular interventions relied upon and to stand back and assess their cumulative effect.
2. The Panel was not precluded from investigating matters considered during the first restoration application. Any agreement between the parties or their representatives about the scope of the hearing could not bind the Panel. The public-protection objective in Medical Act 1983, section 1(1A), and Rule 24 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004/2608 supported that conclusion. Rule 24 required the presenting officer to address the Panel on the background and circumstances of the erasure.
3. The questions about voluntary erasure were legitimate. Dr Banerjee had raised the relevant assurances in her own evidence. The earlier Panel had not determined her probity on that issue; it had found insufficient evidence and drawn no positive or negative inference. The effect of voluntary erasure, the absence of formal misconduct charges, and the inability to impose conditions on restoration made the issue relevant to public protection.
4. The questioning was direct and robust, but the Panel was entitled to seek clear and consistent answers, particularly given the limited documentary material and the absence of cross-examination on the issue. Dr Banerjee had given evidence without interruption, had an opportunity for re-examination and had addressed the questioning and its effect in closing submissions. The brief questioning on matters whose relevance was less apparent did not make the hearing unfair as a whole.
5. The Panel was also entitled to rely on the seriousness of the original dishonesty, continuing lack of insight and risk of repetition when refusing restoration. In any event, even if the questioning had been unfair insofar as it led to a finding that Dr Banerjee was evasive, the application would inevitably have been refused on the other grounds relied upon by the Panel.

• Court of Appeal (Civil Division): dismissed the appeal against the Administrative Court’s order: [2017] EWCA Civ 78.
• Queen’s Bench Division, Administrative Court: Mr Justice Walker dismissed the application for judicial review of the refusal to restore Dr Banerjee to the medical register on 11 August 2015: [2015] EWHC 2263.