R (on the application of Banerjee) v General Medical Council [2017] EWCA Civ 78

The Court of Appeal has confirmed the decision of the High Court, which dismissed a judicial review claim against the refusal of a panel to restore a doctor to the register.

Background

In 2011, Dr Banerjee (B) was subject to a GMC investigation regarding allegations of dishonesty and performance issues. The dishonesty related to falsified entries in her e-portfolio and trying to cover up those dishonest actions. B admitted that she had been dishonest. However, before the matter progressed to a hearing, she was, exceptionally, granted voluntary erasure from the register. This was due, at least in part, to the repeated assurances B gave that she no longer wished to practise. However, alongside her application for voluntary erasure, B was making enquiries about registration overseas and, within a few weeks of being granted voluntary erasure, she registered as a doctor in the Maldives and began to practise there.

In March 2012, B applied to the GMC for restoration. A hearing took place in February 2013. This was opposed by the GMC on the following grounds:

  1. performance issues; and
  2. probity: first in relation to the falsified e-portfolio entries and subsequent dishonesty; and secondly, the assurances given by B that she no longer wished to practise.

The application was refused and B was told she could not re-apply for restoration for another 12 months. The refusal was based solely on the original dishonesty. The panel found that the performance issues on their own would not be sufficient to refuse restoration, and it held that there was insufficient evidence in relation to the assurances given during the voluntary erasure application.

Second Restoration Application

B made a second application for restoration in February 2014. This was heard in July 2014. This application was refused and she was barred from making any further applications for two years.

Judicial Review

B gained permission to judicially review the decision of the second panel. It was contended that the number of questions asked by the panel, and the manner in which they had been asked demonstrated the closed minds of the panel, and rendered the proceedings unfair. The application failed, and B appealed to the Court of Appeal.

Appeal against the judicial review decision

The appeal was based on the grounds that:

  1. the hearing before the second panel was unfair due to the nature, tone and content of the questions put to B by the panel.
  2. the High Court had failed to consider the overall fairness of the second restoration hearing, and had instead focused on a detailed analysis of the particular questions put.

It was B’s belief that the issues of competence and of probity in relation to the assurances given that she no longer wished to practise were not going to be revisited during the second application for restoration. She believed those issues had been resolved in her favour during the first application. In addition, B’s representative and counsel for the GMC had agreed before the second application that the issues would not be re-visited.

Findings of the Court of Appeal

Both grounds of appeal were dismissed.

The panel had not known about the agreement between B’s representative and counsel for the GMC. In any case, the panel was entitled to consider all relevant matters. Its duty was to protect, promote and maintain the health and safety of the public. In addition, the full history of the matter had been raised in B’s examination in chief. Neither party had objected to the panel’s questioning until nearly the end of B’s evidence.

The High Court had been right to examine the specific questions put by the panel, particularly so given the reliance in B’s skeleton argument on particular passages within the transcript of the restoration hearing.

The Court of Appeal also noted that the “regrettable circumstances in which the [restoration] hearing was conducted” – namely the complete lack of material initially provided to the panel – meant that the questioning by the panel was understandable and appropriate.