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Panellists' questions and avoiding "descending into the arena"

Sarah Ellson
13/11/2015
R (on the application of Banerjee) v General Medical Council [2015] EWHC 2263This recent judicial review hearing was a challenge to the decision not to restore Dr Banerjee's name to the medical R (on the application of Banerjee) v General Medical Council [2015] EWHC 2263

This recent judicial review hearing was a challenge to the decision not to restore Dr Banerjee's name to the medical register and to bar her from re-applying for 24 months.

The background involved a doctor who had, in her Foundation Year 2 rotation (compulsory post graduate training) in early 2011, falsified some of her e-portfolio records and attempted to cover up her dishonesty with false explanatory emails. In what were described as "exceptional circumstances", which importantly included Dr Banerjee making clear that she did not intend to practice medicine again, Dr Banerjee was granted voluntary erasure ("VE") in July 2011. She applied unsuccessfully for restoration in March 2012 (the hearing taking place in February 2013) and the most recent GMC hearing related to a second restoration application made in February 2014 (heard in July 2014).

In essence the facts raised three areas, Dr Banerjee's capability (which was not a live issue), the falsified records and emails, and the repeated reassurances that had accompanied the VE application about not intending to practice medicine again, a position which actually changed a few weeks after the application was granted, with applications for registration made to New Zealand and the Maldives in August 2011. This third issue is referred to in the High Court case as the "change of mind" topic.

At the first restoration hearing the change of mind topic had been very much live but the Panel had concluded that it did not consider there was sufficient evidence to suggest evidence of a lack of probity on this issue. At the second hearing the advocates sought to focus the case only on the admitted dishonesty around the falsified e-portfolio records and emails. The Panel members however asked questions that included exploring statements made about the VE application and the subsequent change of mind. Ultimately this impacted their decision which included reference to Dr Banjeree being "evasive in her evidence about seeking VE whilst almost simultaneously seeking registration and job opportunities in other jurisdictions".

Permission for the judicial review was granted in relation to the three grounds which asserted that the doctor had been denied a fair hearing and that the nature, tone and content of the panel's questioning and the attitude openly displayed to her, were such that a reasonably informed observer could only have had a real apprehension of bias.

In a 28 page Annex to the judgment Mr Justice Walker sets out extracts of the Panellists questions, cites criticisms made of those questions by Ms O'Rourke (Leading Counsel in the judicial review application), and his assessment as to the fairness or otherwise of the questioning. Representations were made that the questions amounted to a "reprimand", were overly legal, lengthy, argumentative, badgering, antagonistic, accused Dr Banerjee of lying, trespassed on topics which the Panellists should have known were off limits (because they were not raised by the advocates), might give the impression that the Panellist was "a prosecutor", were rhetorical, prolonged, irrelevant, were inquisitorial seeking to "trap" the witness and amounted to cross-examination. Mr Justice Walker provides 22 examples and dismisses all of the criticisms made.

The case re-iterates that the powers of disciplinary panels, such as the GMC's FTP Panel, have an inquisitorial function and can ask questions in an inquisitorial way. Whilst being clear that whether there has been overall unfairness will often be highly fact-sensitive, Mr Justice Walker indicated, "I consider that members of a Tribunal, if they are concerned about whether a witness is being truthful on a particular matter, are entitled to probe the witness about that matter and consider whether it affects their assessment of the witness's evidence on other matters."

It remains important that Legal Advisers, Chairs, Panellists and advocates remain alive to the possibility that Panel questioning could lead to proceedings being regarded as unfair. Self-awareness, training and interventions all assist to ensure Panel members ask fair and relevant questions. It is however helpful to have a series of examples examined by the Court and found to be, in the circumstances, reasonable and justified lines of questioning and styles of question.

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