General Medical Council v Banerjee: ‘Lesson in not leaving it too late’

Dr Banerjee had re-applied for restoration to the medical register. The Tribunal refused this application. The High Court in turn rejected an application for judicial review. In February of this year, the Court of Appeal in its turn rejected an appeal against this decision in Banerjee v General Medical Council [2017] EWCA Civ 78.

The issue on that appeal was whether the manner in which the doctor was questioned had rendered the hearing unfair. There was no issue between the parties as to the applicable legal principles (citing Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 448, paragraphs 94 and 95). These in summary are:

1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair.
2. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”.
3. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions.
4. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.
5. The facts and circumstances which may render a trial unfair, either in whole or in part, are so multifarious that these principles may need to be applied flexibly in some circumstances

At the heart of the appellant’s complaint was the submission that the number, nature, tone and content of the questions asked by the Tribunal members rendered the hearing unfair. The appellant described the questions as “persistent”, “hostile” and “forceful” such that her impression was that the Tribunal was determined to find dishonesty on her part. This impression was reinforced it was argued by questions about her command of English (even though she was born and brought up in England), her financial position and her pre- and post- undergraduate studies.  It was submitted that this approach unsettled the appellant to such an extent that it led her to answering some questions in a way that the Tribunal found to be “evasive”.

The court noted that the circumstances in which the hearing was conducted were “regrettable”. The issue of the doctor’s probity arose in relation to the repeated assurances she had given in support of her application for voluntary erasure that she did not intend to practise medicine any more. This had been touched on in the earlier restoration hearing. In the instant case although the issue was directly raised with the doctor in her own examination in chief, the GMC did not cross-examine on it again.  In exploring this issue, the Tribunal was not told that the GMC had informed the doctor’s representative that the topic was not one that it intended to re-visited in this case. It was not until nearly the end of her evidence that the doctor questioned why she was being asked about a subject that had been addressed on the first restoration application and her solicitor intervened on her behalf. Before then, the parties had been asked more than once whether anyone had any objection to the questions being asked about the voluntary erasure and no one objected to the questions or the tone or manner in which they were being asked.

The extent of the Tribunal questioning was also a product of the fact the Tribunal did not have a defence bundle of documents for much of the hearing. That was a deficiency of which the Tribunal members complained. As a consequence the Tribunal sought to adduce such background information through questioning.

In light of these circumstances the Court of Appeal found that the questioning by the Tribunal was entirely understandable. The fact that the Tribunal’s questions may have been asked in a direct, even robust, way did not undermine the fairness of the proceedings. Whilst the appellant may have perceived the questioning to be hostile the Tribunal members were entitled to seek clear and consistent answers from the appellant given the lack of documents and the absence of any cross-examination on the issue by the GMC’s counsel.

Alexandra Tampakopoulos