England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Rolls Building Fetter Lane London EC4A 1NL
		30/07/2015

Mr Justice Walker:

Table of Contents

A. Introduction	1
B. Background	6
B1. Events in early 2011	6
B2. The interim suspension on 11 June 2011	15
B3. The voluntary erasure on 19 July 2011	18
B4. The first refusal decision on 22 February 2013	25
B5. The second restoration application	30
B5.1 Overview of the second restoration application	30
B5.2 Discussions before the hearing	35
B5.3 Introductory matters at the second restoration hearing	40
B5.4 Ms Woodward's opening submissions	47
B5.5 Mr Rowley's introductory remarks	54
B5.6 Dr Banerjee's evidence in chief	58
B5.7 Cross-examination of Dr Banerjee	66
B5.8 Events after Dr Banerjee's cross-examination	75
B5.9 The second refusal decision	90
B6. The present proceedings	95
B6.1 The claim form and grant of permission	95
B6.2 Mr Rowley's witness statement	96
B6.3 Dr Banerjee's witness statement	104
B6.4 The oral and written submissions	107
C. Regulatory Framework	109
D. Relevant legal principles	125
D1. The powers of the panel	125
D2. The duties of the panel	131
E. Analysis of the complaints	136
E1 Overview of the complaints	136
E2 Preliminary matters	139
E2.1 What would have happened at a misconduct hearing	139
E2.2 Mr Rowley's impression of questioning by the panel	141
E3. The six factors relied on by Dr Banerjee	143
E3.1 The number of questions	143
E3.2 alleged apparent closed minds	144
E3.3 style of questioning	145
E3.4 alleged cross examination by panel members	146
E3.5 overall combination	147
E3.6 stepping into counsel's shoes	148
F. Conclusion	149

A. Introduction

1. This application for judicial review concerns what happened at a panel hearing in July 2014. The panel was considering whether the claimant should, as she requested, be restored to the register of qualified medical practitioners following voluntary erasure of her name from the register in 2011. This was her second request for restoration: in February 2013 a differently constituted panel had made a decision ("the first refusal decision") rejecting her first request.
2. The claimant gave evidence at the hearing in July 2014. Her legal representative asked her questions about, among other things, how it was that she sought voluntary erasure on the basis that she had no intention to practise medicine and then changed her mind. I shall refer to this topic as "the voluntary erasure and change of mind topic". She was cross-examined, but not on the voluntary erasure and change of mind topic. Her legal representative told the panel that he had no questions by way of re-examination.
3. Members of the panel then asked the claimant questions, mainly about the voluntary erasure and change of mind topic. Her legal representative re-examined on that topic. The hearing was then adjourned. It resumed the following day. After hearing oral submissions the panel retired to consider its decision. Later that day the panel announced its decision. That decision ("the second refusal decision") was that the request for restoration should be refused. There is no statutory right of appeal from that decision.
4. I must decide whether the claimant is right to say that the second refusal decision should be quashed. It is common ground that for this purpose I must determine whether unfairness arose because members of the panel "descended into the arena" and forgot their roles as independent adjudicators in their questioning and treatment of the claimant.
5. In support of the application for judicial review I have a witness statement made by the claimant on 2 October 2014 and a witness statement made by her legal representative, also on 2 October 2014. In addition I have a full transcript for each day of the hearing before the panel. Later in this judgment I cite passages from the transcript. When doing so I have numbered the paragraphs on each page. References to paragraphs in the transcript below are in square brackets, beginning with "1/" or "2/" depending on whether the transcript is of day 1 or day 2, followed by the page number, followed by the paragraph number.

B. Background

B1. Events in early 2011

6. In January 2011 the claimant ("Dr Banerjee") had for some months been registered with the defendant ("the GMC") as a qualified medical practitioner, and was approaching the final stages of Foundation Year 2 of her postgraduate medical training. At this stage she was working at the Royal Berkshire Hospital, and she was an employee of the Royal Berkshire Hospital NHS Foundation Trust ("the Trust").
7. The Foundation Programme is a 2 year programme which is compulsory for all newly qualified medical practitioners in the UK. It forms a bridge between medical school and specialist/general practice training. Dr Banerjee had already completed a Foundation Year 1 training post at the William Harvey Hospital in Ashford, Kent (August 2009-10) which proceeded satisfactorily and without incident.
8. Dr Banerjee's Foundation Year 2 began with a four month surgical rotation, under Mr Rizduan Farouk, consultant surgeon. Initially he was both her educational and clinical supervisor. Because of a difficult working relationship that Dr Banerjee considered had developed with Mr Farouk, at her request she changed educational supervisor to Dr Lindsey Barker, consultant physician, during that rotation.
9. In January 2011 Dr Banerjee began her second rotation. This was in the neo-natal unit, where her clinical supervisor was Dr Nicola Pritchard, consultant paediatrician. During Dr Banerjee's second rotation, as with her first rotation, records concerning her postgraduate medical training as part of Foundation Year 2 were entered electronically in an "e-portfolio".
10. On 25 and 27 January 2011 Dr Banerjee falsified three of her e-portfolio records so as to show above average gradings and positive comments purporting to have been made by two colleagues, addressing concerns she knew had been raised about her capability. She then attempted to cover up her dishonesty by sending emails ("the false explanation emails") to those colleagues saying that automatically generated acknowledgement emails relating to their purported entries had been sent in error due to a system malfunction.
11. The neonatalogy department's records included what was described as "360° feedback". Dr Banerjee attended a meeting on 4 February 2011 at which differences between this and her e-portfolio entries were discussed. She then attended a meeting on 10 February 2011 at which she was made aware of an allegation that she had falsified one or more items in the e-portfolio. At a further meeting on Friday 11 February 2011 the Trust's Chief Medical Officer, Dr Fielden, informed Dr Banerjee that the Trust was to carry out an investigation into these allegations and into concerns which had been raised about aspects of her capability. At none of these meetings did she say what she had done.
12. After a weekend's reflection, Dr Banerjee admitted in an email to Dr Fielden on 14 February 2011 that she had tampered with the e-portfolio entries. At a later date Dr Banerjee admitted to sending the false explanation emails.
13. An investigation ("the Trust investigation") took place. The report of the investigation recorded, among other things, concerns reported by senior colleagues as to Dr Banerjee's communication and team-working skills and inappropriate/incompetent clinical practice. Following a disciplinary hearing on 23 May 2011 Dr Banerjee was dismissed from her post on the ground of gross misconduct in relation to the falsified records in her e-portfolio.
14. In the meantime Dr Banerjee asked the GMC to send a certificate of good standing to the Australian Health Practitioner Regulation Agency ("AHPRA").

B2. The interim suspension on 11 June 2011

15. A complaint about Dr Banerjee was lodged by the Trust with the GMC on 17 May 2011. The complaint had two different aspects. The first concerned her falsification of entries in her e-portfolio. The second concerned deficient professional performance.
16. On 10 June 2011 a hearing took place before the Interim Orders Panel of the GMC. Dr Banerjee was represented at the hearing by Mr William Childs of Radcliffes LeBrasseur. At the hearing she admitted allegations concerning the e-portfolio and the false explanation emails. The allegations concerning deficient professional performance were not accepted. On 11 June 2011, by order of the Interim Orders Panel, Dr Banerjee's registration was the subject of an interim suspension.
17. The interim suspension was imposed pending fitness to practise proceedings. However, in circumstances described in section B3 below, the matter did not proceed to a fitness to practise hearing.

B3. The voluntary erasure on 19 July 2011

18. On 23 May 2011 Dr Banerjee emailed the GMC's Investigation Manager, Ms Rachel Morris, stating that she had that day faxed an application for voluntary erasure. Her email stated:

… I have in the last few weeks taken the decision not to pursue a career in medicine. …

19. In fact what had been faxed on 23 May 2011 comprised part only of the material required in order to apply for voluntary erasure. On 8 June 2011 Dr Banerjee emailed Ms Morris:

I will be re-submitting my application for voluntary erasure. As I have discussed previously with you, in a few months I expect to be living in a different country and pursuing an alternative profession. …

20. A letter dated 27 June 2011 was written by Radcliffe LeBrasseur to the GMC in support of Dr Banerjee's application. It stated, among other things:

In respect of the public interest, clearly the public are protected by [the GMC] acceding to Dr Banerjee's application for erasure. In those circumstances she can no longer undertake medical practice in the UK. [The GMC's] guidance issues a note of caution in circumstances where an application for restoration to the register at a later time may cause difficulties with … considering previous allegations that had not been pursued where a voluntary erasure had been acceded to. We suggest that there would be no such difficulty in this case. The misconduct is apparent on the papers … Dr Banerjee has admitted the misconduct and it would be very straight forward for such matters to be considered again if Dr Banerjee were to apply for restoration at a later date.

…

… Dr Banerjee has found the last few months extremely stressful and it is clear to her that she no longer wishes to pursue a medical career in this country.

21. On 14 July 2011 Mr Neil Murray of the GMC's Fitness to Practise Directorate emailed Dr Banerjee in relation to her voluntary erasure application. His email referred to submissions made to the Interim Orders Panel on 10 June 2011 on her behalf. It continued:

An inference that could be drawn from [the submissions] is that you intend to practise medicine in a different country.

As such please can you provide me with confirmation as to your future plans.

… it may be beneficial to specifically address the following questions:

Do you intend on pursuing a medical career in the UK at this time or in the future?

Do you intend on pursuing a medical career in a country other than the UK at this time or in the future? If so, where?

22. Dr Banerjee replied that evening:

I confirm I will not be pursuing medicine as a career. …

I would additionally mention in February/March I asked the GMC to send a certificate of good standing to AHPRA. Firstly as this is well over 3 months ago, this certificate is no longer valid. In addition I have written to AHPRA asking for my application to be withdrawn many weeks before the IOP met [on 10 June 2011] …

23. On 18 July 2011 an email from Mr Murray confirmed that the GMC had granted Dr Banerjee's application for voluntary erasure from the register. His email set out what had been said by case examiners who had concluded:

…

The guidance … makes it clear that where the allegations relate to misconduct … an application for voluntary erasure should be agreed only in exceptional circumstances. … The doctor's representatives have suggested that since Dr Banerjee has admitted the misconduct issues these could easily be addressed should she ever apply for restoration, although Dr Banerjee has made it clear that she does not intend to practise medicine again. In the exceptional circumstances of this case, voluntary erasure should be granted.

24. Dr Banerjee's voluntary erasure had two consequences. The first was that on that day she ceased to be entitled to practise medicine in the UK. The second was that investigations by the GMC in relation to the dishonest falsification came to an end.

B4. The first refusal decision on 22 February 2013

25. An application ("the first restoration application") to be restored to the register was made by Dr Banerjee on 7 March 2012. A lengthy oral hearing, at which Dr Banerjee represented herself, took place from 11 February to 22 February 2013 before the Fitness to Practise Panel ("the first panel") of the Medical Practitioners Tribunal Service ("MPTS"). The outcome on 22 February 2013 was the first refusal decision: the first restoration application was rejected and Dr Banerjee was barred from re-applying for 12 months.
26. At the hearing before the first panel the GMC relied upon both capability and probity issues in opposing restoration to the register. The capability issues were based on the concerns reported in the Trust's investigation report. As to those, the first refusal decision said that the first panel was not satisfied that the concerns regarding Dr Banerjee's capability were serious enough to raise any issue about her fitness to practise.
27. As to probity, two matters were considered by the first panel. The GMC relied on the falsification of the e-portfolio records and the false explanation emails. The first panel's findings in this regard included the following:

The Panel has considered carefully the evidence in relation to your admitted dishonesty.

…

The Panel has noted the mitigation you advanced that your falsification of the e-portfolio records was an isolated episode about which you have reflected at length and which you deeply regret. You drew the Panel's attention to your PDP and to an ethics course you have since undertaken, and you have assured the Panel that your dishonesty has not been, and will never be, repeated.

The Panel has considered the aggravating factors in relation to your actions. You falsified a total of three e-portfolio records, two on 25 January and one on 27 January. In so doing, you provided detailed positive comments which addressed the concerns which you knew had been raised in relation to your capability. You did not bring your actions to your supervisors' attention of your own volition despite having had three opportunities to admit to your actions which you did not take. Not only did you attempt to cover up your dishonesty by telling your colleagues that the automated system had sent messages in error, you only admitted your dishonesty to Dr Fielden three days after he had told you that the Trust was formally investigating the matter. The Panel therefore accepts Ms Griffin's submission that your actions were a deliberate and calculated attempt to deceive. Further, when questioned by the Panel, you stated that had the matter not come to light, because you had not been able to delete your false entries on the e-portfolio you would probably have simply undertaken more assessments than required in order to make up for the false assessments. Even with hindsight, your evidence was that you would not have gone to your supervisors and admitted your dishonesty.

The Panel therefore has concerns about the level of your insight into these matters. Insight – the expectation that a doctor will be able to stand back and accept that, with hindsight, he/she should have behaved differently, and that it is expected that he/she will take steps to prevent a reoccurrence – is an important factor in considering whether fitness to practise may be impaired and, in this case, whether your application to be restored to the Register should be granted.

You have apologised for your actions and the Panel accepts that you are genuinely contrite about your dishonesty. However, it was concerned by your evidence that your previous assertions that were willing to engage fully with any remedial actions necessary to remedy the Trust's concerns were made solely because your legal advisers had indicated that such a commitment would be expected of you.

…

Your acts of dishonesty represent a serious departure from the guidance set out in paragraphs 56 and 57 of Good Medical Practice, which state:

"56 Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.

57 You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession."

The Panel has no power to restore your name to the Medical Register with conditions or to restrict or limit your registration in any way. The Panel has determined that your dishonest actions in relation to falsifying three e-portfolio assessments are sufficiently serious such that if the Panel were to restore your name to the Register it would be likely to undermine public confidence in the profession. It would also fail to meet its obligation to declare and uphold appropriate standards of conduct and behaviour required of registered medical practitioners.

Accordingly, taking all matters into account, the Panel has determined to refuse your application for restoration to the Medical Register.

28. The other aspect of probity mentioned by the first panel concerned Dr Banerjee's voluntary erasure application. On this, the first refusal decision described the evidence before the first panel in this way:

Subsequently, a referral was made by the Trust to the GMC and on 10 June 2011 an Interim Orders Panel suspended your registration pending fitness to practise proceedings. However, before those matters were progressed any further you stated that you no longer intended to pursue a career as a doctor, and you applied for wand were granted VE.

You have told the Panel that, after your name was erased from the Medical Register in July 2011, you reflected on your decision and, only a few weeks later, after a holiday, you decided that you wished to resume your medical career. However, the Panel notes that you had been considering working in Australia from April 2011. Subsequently, the regulatory authorities there advised you that you should resolve any issues in relation to your UK registration status before pursuing those applications. You also applied to sit the clinical examination in New Zealand in August 2011. In addition you applied for registration in the Maldives in August 2011 and secured medical employment in September 2011. The Panel also notes that you had started enquiring about restoration with the GMC in October 2011. On 7 March 2012 you applied to have your name restored to the Register.

29. The first refusal decision then stated, in a passage which I shall call "the no inference conclusion":

You applied for voluntary erasure in June 2011, which was granted on an exceptional basis, partly on the basis of your repeated assurances that you no longer wished to pursue a career in medicine. However, the Panel has noted that, from April 2011 and alongside your application for VE, you were also considering seeking employment overseas as a doctor in New Zealand and Australia. Four weeks after your VE application was granted you applied for registration as a doctor in the Maldives and commenced employment four weeks later.

You told the Panel that you changed your mind about not pursuing a career in medicine following a short period of reflection and discussion with family and friends. Whilst the Panel has noted this sequence of events, it does not consider that there is sufficient evidence to suggest that this is evidence of a lack of probity, nor indeed has the GMC made a direct submission to such effect. It has therefore drawn no inference, positive or negative, from this matter.

B5. The second restoration application

B5.1 Overview of the second restoration application

30. On 12 February 2014 Dr Banerjee made a further application ("the second restoration application") to be restored to the register. It was the subject of a hearing ("the second restoration hearing") before a different Fitness to Practise Panel ("the second panel") on 2 and 3 July 2014.
31. The medical member and chairman of the second panel was Professor David Katz, who had retired from teaching and was an Emeritus Professor of Immunopathology. There were two non-medical members. Both were legally qualified. One was Mrs Susan Staveley, a solicitor and also a Deputy District Judge. The other was Mr Robin Somerville, a barrister with experience as a chair of Fitness to Practise Panels at the Nursing and Midwifery Council.
32. Appearing before the second panel were Ms Joanna Woodward of counsel on behalf of the GMC and Mr James Rowley, a solicitor who acted as advocate on behalf of Dr Banerjee. Mr Rowley was the legal representative referred to in Section A above. Mrs Margaret Dodd was in attendance as the panel's legal adviser.
33. On 2 July 2014 Dr Banerjee gave evidence as set out in section A above. On the morning of 3 July 2014 the second panel heard oral submissions and deliberated in private. The hearing resumed that afternoon, when the chairman announced, and gave reasons for, the second refusal decision.
34. After completing his announcement of the second refusal decision, the chairman noted that under relevant guidance it was open to the panel to suspend Dr Banerjee's right to make further applications indefinitely. There was then an adjournment so that lawyers on each side could take instructions. On resumption the panel heard oral submissions. After a further period of deliberation in private, the panel announced that Dr Banerjee would be barred from re-applying for 24 months.

B5.2 Discussions before the hearing

35. In his witness statement for these proceedings Mr Rowley began by describing what had happened at the hearing before the first panel. His firm had not been involved in that hearing, but he noted from the first refusal decision that the GMC had relied upon both capability and probity issues in opposing restoration to the register, and that the first refusal decision said that the first panel was not satisfied that the concerns regarding Dr Banerjee's capability were serious enough to raise any issue about her fitness to practise. He also noted that, as to probity, two matters had been considered by the first panel. The GMC had relied on the falsification of the e-portfolio records. It was the serious nature of this misconduct which had led the first panel to conclude that restoration of Dr Banerjee's name to the register would be likely to undermine public confidence in the profession.
36. The other aspect of probity mentioned by the first panel concerned Dr Banerjee's voluntary erasure application. On this, Mr Rowley noted the no inference conclusion.
37. Mr Rowley's statement explained at paragraph 9 that on his reading of the first refusal decision, the key feature was the falsification of the e-portfolio. He added that this assessment of the first refusal decision formed a key part of his approach towards preparations for the second restoration hearing.
38. At paragraph 10 of his statement Mr Rowley described a telephone conversation on Thursday 26 June 2014 that he had with the GMC solicitor with conduct of Dr Banerjee's case:

10. … In the course of this discussion, it was explained to me that the GMC essentially regarded the matters of capability and the separate issue of the voluntary erasure application as closed, these having been examined in the course of the 2013 proceedings, but would be resisting Dr Banerjee's application for restoration on the single issue of misconduct in relation to the e-portfolio forms. In keeping with this approach, while the GMC would be referring to the previous matters, it was not proposed that the previous transcripts and bundles of documentation considered by the Fitness to Practise Panel in 2013 be submitted to the Panel again in 2014, although the transcripts and previous bundles would be available for inspection in the Hearing room, should the Panel in 2014 wish to refer to them.

39. In paragraph 11 Mr Rowley said that the contents of this discussion formed a key part of his understanding of the "goalposts" for the second restoration hearing. He added that the contents of the discussion had been relayed to Dr Banerjee, and formed a key part of her expectations as to how the case was to be advanced on the part of the GMC, and of his preparation of Dr Banerjee for the giving of her evidence. She was, said Mr Rowley, apprehensive about giving evidence in the light of her lack of success the previous year, and his conversation with the GMC:

… helped reassure her given the importance of the application to her and her future.

B5.3 Introductory matters at the second restoration hearing

40. At the start of the second restoration hearing the chairman asked both Ms Woodward and Mr Rowley whether there were any preliminary matters which needed to be dealt with before the hearing started. Ms Woodward and Mr Rowley each replied that there was no preliminary matter needing to be dealt with.
41. Ms Woodward then referred the panel to relevant procedural rules under which the GMC was required to address the panel as to the background and circumstances in which Dr Banerjee's name was erased from the register, to direct the attention of the panel to any relevant evidence, including transcripts of previous hearings, and to call witnesses in relation to the practitioner's fitness to practise. She referred to a hearing bundle which she hoped the panel had been provided with.
42. It then emerged that the panel had not been provided with any hearing bundle. In the chairman's words:

[1/1/12] … we have no information whatsoever.

43. There was then a discussion as to the way forward. The upshot was that the panel adjourned in order to read the GMC hearing bundle and a bundle prepared on behalf of Dr Banerjee. The chairman designated them as bundles C1 and D1 respectively. In the course of the discussion Ms Woodward said that there were additional bundles available for reference, and that they included documents from the hearing before the first panel. She added, in response to a question from the chairman:

[1/2/6] MS WOODWARD: Sir, this is for reference only. It includes the transcripts of the previous Fitness to Practise Panel hearing. It was not my intention, unless you would wish me to do so, to direct you to the contents of this bundle but those who instruct me thought that there should be some copies available in the event that the Panel wished to consider any matters that had been discussed or raised on the earlier occasion. I think the Rules provide of course for the Panel to have available to them transcripts of any previous hearings should they wish to refer to them. So there is no need for you to pre-read these. If at any stage you consider you would be assisted by reference to any of the parts of the transcript or the evidence I can specifically direct you to the limited pages that you would wish to refer to.

44. Thus the panel adjourned to read the material which the GMC proposed to rely upon and the material which Dr Banerjee proposed to rely upon. Panel members were not at that stage given any of the material in the additional bundles.
45. As to what Ms Woodward had said about the additional bundles, the chairman's response to Ms Woodward was:

[1/2/7] THE CHAIR: Thank you very much. I mean, as far as the Panel are concerned, I think this is all a bit of hieroglyphics because we have no idea what any of this is about and until we have actually seen this it is very difficult for us to judge that. The Panel reserves the right to ask for that.

46. At this stage there was no suggestion by either side, whether before or after the chairman's response about the additional bundles, that findings in the first refusal decision on the voluntary erasure and change of mind topic were findings which the second panel could not go behind.

B5.4 Ms Woodward's opening submissions

47. Bundle C1 included the first refusal decision. When the hearing resumed Ms Woodward referred the panel to what had been said under the heading "Background" in that decision. In that regard she focussed upon the first panel's account of the e-portfolio falsification and the investigation into it by the Trust. She added that the investigation by the employer had been "an internal capability and conduct investigation", and that the investigation report:

[1/5/1]… recorded concerns reported by a number of senior colleagues in relation to the practitioner's communication, teamworking skills and inappropriate or incompetent clinical practice.

48. Ms Woodward noted that at the hearing before the first panel the GMC had called a number of witnesses. She continued:

[1/5/3] … You will see … that the [first panel] having heard the evidence and the submissions of the parties regarding the practitioner's capability on that occasion was not satisfied that they were serious enough so as to raise any issue about the practitioner's fitness to practise.

49. Ms Woodward then told the second panel that she would be taking them through the first panel's consideration of evidence in relation to probity issues concerning falsification of the e-portfolio. Before doing that, however, Ms Woodward said this:

[1/6/1] Sir, the [first panel] noted that the practitioner applied for voluntary erasure in June 2011, which was granted on an exceptional basis, partly on the basis of the practitioner's repeated assurances that she no longer wished to pursue a career in medicine. They noted, though, that from April 2011 and alongside the practitioner's application for voluntary erasure she was also considering seeking employment overseas as a doctor in New Zealand and Australia and that four weeks after the voluntary erasure application was granted, she applied for registration as a doctor in the Maldives and commenced employment four weeks later. In relation to that the practitioner told the [first panel] that she had changed her mind about not pursuing a career in medicine following a short period of reflection and discussion with family and friends. The [first panel] stated that whilst it had noted this sequence of events it did not consider that there was sufficient evidence to suggest that this was evidence of a lack of probity in itself nor, indeed, had the GMC, on that occasion, made a direct submission to that effect. It therefore drew no inference, positive or negative, from that matter.

50. In her submissions about the falsification of the e-portfolio, Ms Woodward noted that the first panel recorded concerns about the level of Dr Banerjee's insight into relevant matters. Ms Woodward added:

[1/6/2] … Insight: the expectation that a doctor will be able to stand back and accept that with hindsight he or she should have behaved differently and it is expected that he or she would take steps to prevent a reoccurrence. It is an important factor in considering whether fitness to practise may be impaired and in this case whether her application to be restored to the register should be granted.

51. The final part of Ms Woodward's opening submissions was as follows:

[1/7/3] Sir, under Rule 24 I am required to direct you to any relevant evidence, including transcripts of previous hearings. In the three bundles that have been provided for your reference if required, there is contained the hearing bundle from the previous Fitness to Practise Panel hearing, other documents submitted by the GMC and the practitioner at that hearing and a full hearing transcript.

[1/7/4] Sir, the only documents that I consider may be of particular significance to this hearing – and it is entirely a matter for you whether or not you wish to consider those – are the e-portfolio entries which appear in the original hearing bundle and the e-mail dated 14 February 2011 in which the practitioner admits the falsification of those entries. Additionally there are some e-mails dealing with the practitioner's application for voluntary erasure and confirmation that that application had been granted and the reasons for the granting of that application.

[1/8/1] The transcripts of the Fitness to Practise Panel hearing are extensive and much of the evidence on that occasion related to the capability issues which should not concern this Panel. I can, however, if required, direct you to the relevant part of those transcripts that deal with the e-portfolio issue and the application for voluntary erasure. I can do that at this stage by simply referring you to the page numbers or I can allow you to consider whether or not you would be assisted by consideration of those documents in due course, and it may be that you would want to hear from Mr Rowley in any event before I did that. Sir, unless you wish me to identify the page numbers at this stage, I do not propose to do so.

52. Ms Woodward thus distinguished between capability issues, which she said should not concern the second panel, and "the e-portfolio issue and the application for voluntary erasure". As regards documents in the additional bundle dealing with the e-portfolio issue and the application for voluntary erasure, Ms Woodward said the second panel could consider whether or not they "would be assisted by consideration of those documents in due course". She added that it might be that they would want to hear from Mr Rowley beforehand.
53. At this stage, again, there was no suggestion by either side that findings in the first refusal decision on the voluntary erasure and change of mind topic were findings which the second panel could not go behind.

B5.5 Mr Rowley's introductory remarks

54. No oral evidence was adduced by the GMC at the second restoration hearing. Accordingly once Ms Woodward's submissions had been concluded as set out in section B5.3 above, it fell to Mr Rowley to adduce evidence on behalf of Dr Banerjee.
55. Mr Rowley explained to the second panel that he proposed to call Dr Banerjee as a witness. He added:

[1/8/7] Sir, just so you know, … I will be asking her about certain matters that the Panel heard about at length last year, which include the capability procedures that she [Ms Woodward] went into but the reason for doing that is not to seek to revisit matters that are closed or to reopen old wounds, but to provide some context to, in particular, the misconduct matters and so you know what was taking place at the time. ...

56. Mr Rowley added that he did not propose to make any opening submissions unless the panel would be assisted by them. The chairman replied that he had thought that Mr Rowley wished to make some submissions first, but if he was going to call Dr Banerjee now, that was fine.
57. In his remarks at [1/8/7] Mr Rowley had referred to there being "matters that are closed". He identified "capability procedures" as one such matter. However he did not take issue with Ms Woodward's distinction between capability issues, which should not concern the second panel, and "the e-portfolio issue and the application for voluntary erasure". Nor did he contend on behalf of Dr Banerjee that "matters that are closed" included the voluntary erasure and change of mind topic.

B5.6 Dr Banerjee's evidence in chief

58. Dr Banerjee's examination in chief began with her family circumstances and moved on to her training at medical school. She then described various postings prior to giving an account of Foundation Year 1 at Ashford. Her overall experience of there was very good. However they did not have a place available for her beyond the end of that year. This resulted in her starting Foundation Year 2 at the Royal Berkshire in August 2010. There she felt that she was the "odd one out" as others on Foundation Year 2 had done their first Foundation Year there together. She said she was required by her supervisor to ask others in her year to take on additional work, leading to ill-feeling towards her. She felt she had to ask for a change of supervisor. This was eventually granted, but it led to her being viewed as a "problem doctor". She described a number of unsatisfactory aspects of what happened to her, giving rise to a "very difficult, almost miserable experience".
59. There was then a mid-morning break. Dr Banerjee's evidence resumed with her account of criticisms made of her by senior doctors at the Royal Berkshire. When questioning her on this Mr Rowley introduced the matter in this way:

[1/26/1] … What sorts of areas of work did you find to be criticised? Where were you criticised and what was your response to that? This is not an issue that I am trying to reopen, it is just so the Panel get a feel from you as to the sorts of concerns that were being raised and basically what your environment was like at that particular time. …

60. In response Dr Banerjee referred to criticisms about not doing procedures correctly, about compromising patient safety, about teamworking, and about communication. She said that "obviously" there was nothing wrong in relation to those issues at all, adding that the hospital had presented no evidence to justify the criticisms, and indeed had not submitted to the investigation panel evidence which contradicted them.
61. Questioning then turned to the falsification of the e-portfolios. The background was described by Dr Banerjee in this way:

[1/29/5] … although I was doing things properly, well and to the correct standard I was still being accused of not doing things well, not doing things to the correct standard and all sorts of false criticisms without any kind of evidence at all and in the background to surgery where I had had to arrange cover for five weeks, it had alienated me. So I was having effectively a really horrible time at that particular hospital. As a result of the false criticisms that were being raised I felt under a huge amount of pressure that even when I was doing things well I was being falsely criticised and I think the pressures around that period of time, I obviously very stupidly falsified the three e-portfolios.

…

[1/29/7] … I felt that even when I was doing things well people were saying, "You haven't done this well" even though I had done the procedure correctly people were saying, "Well you haven't", even though that was not true at all. I felt that I was not going to get the correct assessment that I should have got and there was evidence from the way that I was being treated to support the view that I was being falsely criticised about skills, about teamworking, about a number of areas. So it was just the belief that I would not get the correct ...

[1/29/8] Q The feedback you deserved or you felt you deserved?

[1/29/9] A Yes.

62. Dr Banerjee explained that the horrible time she was having at the hospital put her under huge strain. She was also under increasing personal problems, including as to her father's health. The panel went into private session in order to hear further evidence on this latter aspect.
63. The hearing then resumed in public. The evidence in chief touched briefly on Dr Banerjee's dismissal by her employers in May 2011, and the Interim Order Panel decision on 10 June 2011 that Dr Banerjee's registration should be suspended. She was asked when it was that she started to think about voluntary erasure. In her reply she said she thought it was in the early part of the hospital's investigation. In this regard she made reference to the Medical Protection Society ("MPS"):

[1/33/6] … I was represented by MPS at the time and I did discuss with them the pressures that I was under, et cetera, and if there was any means of being able to just -- because I was under huge strain at the time, professionally and personally and I just felt very down at that point and considered whether I could take my name off the Register and not practise essentially. So then I discussed it with MPS and they said that I could apply for voluntary erasure but I would probably be very unlikely to get it because my expectation was that it probably would not be granted because I knew that I was under a fitness to practise investigation. So I applied for it, although I was quite surprised that it was granted because I was probably expecting it not to be.

[1/33/7] Q The Panel heard last year, and there is reference in the determination, it seems that you were applying for posts elsewhere overseas at around the same time as you were writing to the GMC and seeking to get voluntary erasure. That is correct, is it not?

[1/33/8] A Yes.

…

[1/33/11] Q … What were you telling the GMC about the genuineness of your determination not to practice or your decision not to practice?

[1/33/12] A Oh in terms of my application I obviously told the truth about the strain that I was under. The reasons that I wanted to take voluntary erasure, I explained to them, which were obviously clear and they were correct, so relating to the personal circumstances that I was under and also the fact that I felt that I wanted to leave at that stage.

[1/33/13] Q How does that square then with your applications overseas to other jurisdictions?

[1/33/14] A Well because I discussed this with MPS and I think there is a telephone note in the previous bundle, where they said, "Even if you do consider to take your name off the Register, you should keep other options open". So then the applications to apply overseas came as a result of them advising me that I should still keep some options open. So that is where that arose from.

[1/34/1] Q What was the sort of thinking behind that dialogue you were having with the MPS at the time?

[1/34/2] A Well, I mean, obviously there was no intention on my part to ever avoid any fitness to practise hearing or anything like that and I knew that even if I did return to medicine ever at any point these matters would be re-opened in any country obviously because of the Certificate of Good Standing so there was never any attempt to avoid anything but it was just a genuine attempt to try and keep options open, knowing that the regulators communicate with each other and then the matters would be conveyed. So there was no attempt to try and avoid anything.

64. Mr Rowley then asked Dr Banerjee about starting work in September 2011 in the Maldives as a medical officer. Mr Rowley noted that it had been in May/June 2011 that Dr Banerjee started making moves to apply for voluntary erasure. Dr Banerjee agreed. This led to the following passage in Dr Banerjee's evidence:

[1/35/10] Q Something has changed then, so how have you ended up going back to medicine then in September? What has the thought process been in that three or four months between saying you want to apply for voluntary erasure and not practising again and then practising later in the year?

[1/35/11] A Obviously I had had a break at that point, the proceedings had stopped, I had had a mental break from what was going on and a chance to reflect on the decision I had made and I had a break from the circumstances in relation to the GMC and then, having effectively closed the door on medicine I began to think it had been a mistake and something I had done on an emotional basis rather than clearly thinking through what I had actually done, it was more driven by my very emotional state based on a number of reasons, rather than any logical or clear thinking. So I thought I had made a mistake at this point.

[1/35/12] Q That was a decision you took really.

[1/35/13] A Yes.

[1/35/14] Q You wanted things halting, by the sound of it. I think you said before you said something about the procedures ongoing, I think.

[1/35/15] A Yes, I mean because it was obviously firstly there were matters relating to my father and also the other stresses that I was under, I think I just wanted some time out of that and a chance to reflect and I think I was very emotional at the time as well, so it was just a desire to have a clean break from that.

65. After dealing with the hearing before the first panel, the remainder of Dr Banerjee's evidence in chief concerned what she had done since 2011, including steps she had taken to reflect on her own dishonest behaviour, to realise the seriousness of what she had done, and to learn more in order to improve her practice in the future.

B5.7 Cross-examination of Dr Banerjee

66. Ms Woodward's cross-examination of Dr Banerjee began at the start of the afternoon session on 2 July 2014. At an early stage Ms Woodward focussed upon certain of the criticisms which Dr Banerjee had said were unjustified and had formed part of the background leading to her falsification of the e-portfolio. One of these was that there had been unjustifiable suggestion that she had some of the features of autism, with a rigid approach and a tendency to take things literally. Under cross-examination, however, Dr Banerjee accepted that she had not seen a reference to autism until the investigation report, after the falsification of the e-portfolio. Dr Banerjee nevertheless maintained that it had been evident in the behaviour of the senior doctor in question that "she was very much personally against me and that she treated me as a very abnormal person working within her department".
67. Other criticisms had been recorded in the departmental 360° feedback assessment. Dr Banerjee said there had been no facts to back up what was said in the assessment. She had asked the senior doctor in question for evidence and had not received a response. On this basis Dr Banerjee said:

[1/50/12] … So I can only presume that she basically fabricated - all the allegations were fabricated because she never provided any evidence to back up what she was talking about.

68. On a specific issue as to whether she had failed consistently to complete a heel prick test competently, Dr Banerjee acknowledged that she had been told of occasions where failure to complete the test competently had been recorded. As to that, Dr Banerjee said that she had shown an ability to perform the test competently within a matter of weeks, whereas the senior doctor had failed to produce anyone to back up what was said in the record. All these criticisms, said Dr Banerjee, were completely without foundation.
69. In this regard Dr Banerjee queried which 360° feedback assessment Ms Woodward was referring to in her questions. This prompted an intervention by the chairman:

[1/52/12] THE CHAIR: Could I just intervene for one moment, please. I think the Panel is in a position of great difficulty here. We are extensively going through documents which we have not seen and it is very difficult to judge your questions in relationship to a vacuum.

[1/53/1] MS WOODWARD: Sir, I appreciate that, and what I do not want to do is to reintroduce the competency issues when they are not a matter for this Panel. I was anticipating setting up the questions that I think are relevant to the issues that you have to determine in a far more expeditious manner that I have been able to do so, but what I do is seek to wrap up this particular issue with one question and move on to the next.

[1/53/2] THE CHAIR: I hope you are able to do that, because we really in a very difficult situation and we have heard reference to numerous documents now, none of which are available to us, and none of which appear to be, from what we have heard so far, particularly relevant.

70. After further cross-examination Dr Banerjee accepted that the view taken by the first panel was that the hospital's investigation report made findings which were "based largely on third party accounts which amount to hearsay…". When it was put to her that this was not the same as a finding that a piece of evidence had been fabricated, Dr Banerjee's reply at [1/57/1] was that she thought this was semantics, and that perhaps the panel had just been "too polite to say fabricate".
71. This reply led to the following exchange:

[1/57/2] Q Can I just explore this with you, because one of the issues before this Panel is your insight. Is it your evidence that there is little difference, it is a question of semantics, whether something is unevidenced or something is fabricated?

[1/57/3] A Well, I think the Trust had about two years to produce evidence. Dr Pritchard – and I can refer to the relevant e-mails – was directed by me in February 2011 to provide evidence. So at the right time, when these matters had just apparently taken place, she was invited, on repeated occasions, to provide evidence to substantiate what she was talking about. This evidence is in the previous bundle of documents, e-mails between myself and Dr Pritchard where I have clearly asked her on repeated occasions she has been asked to provide evidence to back up any sort of competency complaint. She has failed --

[1/57/4] Q Can I go back to the question though please? I apologise for cutting you off, but you are not answering the question. The question is about your understanding of the difference between a piece of evidence that has been fabricated and a piece of evidence that is not corroborated or substantiated.

[1/57/5] A Well obviously there is a difference between the two: fabricated is made up, hearsay is he said or she said.

[1/57/6] Q So you do appreciate the difference between the two?

[1/57/7] A Yes.

[1/57/8] Q On that issue, your concern you have explained is that there was either fabricated or unsubstantiated records of your inability to work as a team, your poor communication skills, and concerns about your clinical skills and judgments, is that correct?

[1/57/9] A I think I have already answered that question. Dr Pritchard was invited to provide the evidence. She did not produce any evidence.

[1/5710] Q It may be the way that I am asking the questions, and I think we have already established that that was your concern, so I will move on to the next question. Within the fabricated e-portfolio entries, you made a number of specific comments about those matters that you attributed to people within Dr Pritchard's team, did you not?

[1/57/11] A Yes.

…

[1/58/20] Q Now, the reason that you have said you did this is because you thought that otherwise you would not get recognition for the fact that you were a good team player, that you had good communication skills, that you worked well as a team, arranged cover and answered your bleep?

[1/58/21] A Yes.

[1/58/22] Q Well in respect of some of those matters, for example, your communication skills and your ability to work well as a team, did you really believe that you were best placed to make that judgment?

[1/58/23] A I think, as I have said before – and as is clear from Dr Pritchard's behaviour in only providing hearsay – I am quite happy to be assessed and I understand absolutely the need to be assessed by those who are senior, experienced and it is their right and duty to pass correct judgment over doctors but when it is very clear that you are working for somebody who simply does not like you and is making unsubstantiated allegations about you then you do not believe the person is acting as they ought to be acting.

[1/59/1] Q Well, even with the benefit of hindsight, do you now still believe that you were in a good position to make that judgment?

[1/59/2] A No, no, the people I worked for, it is their judgment, not mine.

[1/59/3] Q So, at the time that you were completing these entries and your thought process was that, "Without these I might not get the recognition that I deserve", did you not recognise that perhaps you were not best placed to make that sort of judgment about your ability to work as a team and to communicate.

[1/59/4] A I have already stated that I should not have filled in the forms, I should not have done them at all.

[1/59/5] Q That is a different point, Dr Banerjee.

[1/59/6] A I have already answered the point, which is that it is the position of people who are senior and experienced to be making those sorts of judgments obviously.

[1/59/7] Q Do you accept now, with the benefit of hindsight, that you were not best placed --

[1/59/8] A Yes of course, yes.

[1/59/9] Q -- to make that judgment, regardless of whether or not you were concerned that others may not be assessing those skills either fairly or accurately?

[1/59/10] A Yes.

[1/59/11] Q Did you at the time consider the potential consequences if your judgment on these matters was flawed?

[1/59/12] A Well, it is not my judgment about me anyway, it should be the judgment of people who are working --

[1/59/13] Q Well, this is your judgment: you are saying, "I have excellent communication skills, I worked well within a team –

72. This line of questioning led to a protest by Mr Rowley. That protest led to an exchange between Ms Woodward and the chairman:

[1/59/15] MS WOODWARD: … I had understood the line of questioning in chief to have resulted in the practitioner giving evidence that the reason behind this was because otherwise she considered that her communication skills and ability to work in a team would not be judged fairly. So it is a question of insight, sir, although I have very nearly come to the end of my questions.

[1/60/1] THE CHAIR: Well Mr Rowley has interrupted, but what I was going to say was, again, we are hearing details about a form, these forms that were completed, which we have not seen and we are reaching the point where we really are going back over the previous hearing in considerable detail. I think we have to accept that these forms are what they are and are false.

[1/60/2] MS WOODWARD: Sir, I am very nearly finished. The relevance, the GMC say, to this is a question of insight, which is of course a matter for you at this stage.

[1/60/3] THE CHAIR: In which case I think we understand that.

73. Ms Woodward's cross-examination then continued:

[1/60/4] MS WOODWARD: How confident, Dr Banerjee, are you that if similar circumstances arose again, circumstances in which you were having difficulties with personal relationships and you are being the subject of unjust criticism, how confident are you that you would be able to resist any temptation to take matters into your own hands to see that justice, as far as your judgment was concerned, was done?

[1/60/5] A Well there would not be any temptation in the first instance. I think I have made it very clear that I understand the high levels of integrity expected, I understand why that is required and I understand why the GMC is so strict about integrity and I have also worked as a doctor four times since, so it is not just what I am saying, it is what I am practically demonstrating.

74. At no point in Ms Woodward's cross-examination of Dr Banerjee was there any mention of the voluntary erasure and change of mind topic.

B5.8 Events after Dr Banerjee's cross-examination

75. At the conclusion of Ms Woodward's cross-examination of Dr Banerjee the chairman noted that members of the panel might have some questions for her, and asked Mr Rowley whether he wanted to re-examine. Mr Rowley replied that there was no re-examination.
76. Members of the panel then asked questions of Dr Banerjee. I deal with those questions, and matters which arose during the course of those questions, in Annex 1 to this judgment. At a late stage in those questions there came a time when Mr Rowley submitted that the voluntary erasure and change of mind topic was "closed". I shall refer to his submission, and the discussion which followed, as "the "closed matters" discussion":

[1/90/3] MR ROWLEY: Dr Banerjee, just a moment. Sir, I wonder if at this moment, if your Legal Assessor agrees, it might be helpful to actually address a legal submission that I would be making at the conclusion of these proceedings now, which will deal with the remit of inquiries and also the remit of documentation that you need to see. ….

[1/90/5] … what I was proposing to submit – and my learned friend should have an opportunity to respond – is that there are principles of double jeopardy and then there is another principle well-established of autrefois acquit which you will be familiar with, and that is that a formal adjudication has been made by a duly convened Panel in the course of February 2013 in relation to certain matters and, in particular, the matters that have been closed are matters in relation to both capability, resoundingly so, and also matters in relation to any issue of probity in relation to voluntary erasure applications. They were considered at some length over a series of days, with a large volume of documentation and with large tranches of live evidence, including particularly by Dr Banerjee who was already cross-examined at some length in relation to all those matters. At the conclusion of it, as I understand, the GMC did not, on page 23, did not pursue a direct submission to the effect that matters in relation to voluntary erasure suggested any evidence of lack of probity:

"… and it has therefore drawn no inference, positive or negative, from this matter."

[1/91/1] Sir that does constitute, in my submission, a positive adjudication. The GMC did not appeal against those findings and Dr Banerjee is entitled to see those matters as closed and, from a legal point of view, my submission is that she would be correct in that understanding. So sir, if that helps, I think it might help to address that one now.

[1/91/2] THE CHAIR: Legal Assessor?

[1/91/3] THE LEGAL ASSESSOR: Sir, I think it is right that Ms Woodward should be allowed to respond before my advice but I do accept that there is the danger of dealing underneath the remit of this hearing. For example, the document you have at D3, which there have been questions asked about, it is quite clear from the back of that that it is not a document that -- I mean obviously the doctor has seen it now because she has a copy, but it is quite clear on the back it says:

"I declare that the information provided on this form is correct to the best of my knowledge."

[1/91/4] – and then signature, and that is blank. It is clearly a document that has been filled in by somebody else and so it is very difficult to start asking questions about documents which are not necessarily things that were seen at the time and it is clear from the determination of the previous hearing that certainly matters of competence were decided upon and adjudicated upon and decided not to raise sufficient question about fitness to practise and, also, to some extent, about the voluntary erasure. So it may be helpful to hear from Ms Woodward.

[1/91/5] THE CHAIR: Ms Woodward.

[1/91/6] MS WOODWARD: Mr Rowley's submissions as to the agreement between the GMC and the practitioner's representatives is correct in that we considered that the only evidence of relevance to the Panel's determination would be that that is contained in the previous Panel's determination and which centres essentially on the admission by the practitioner that she had committed the acts of misconduct in relation to the entries in her e-Portfolio.

[1/91/7] As to the role of the Panel today, evidently it is the case that you have a discretion as to whether to grant the application for restoration or not. Matters as to the practitioner's fitness to practise are relevant to that issue, although you are not here to determine that question as I understand it in the same way as you would if you were determining or as if this was a fitness to practise hearing. Evidence that is relevant to insight is evidently a matter that is firmly and squarely before this Panel but certainly the GMC does not seek to make any allegation as to the practitioner's probity in respect of her representations to the GMC at the time of her voluntary erasure that she did not intend at that particular point in time to continue or to return to the medical profession.

[1/92/1] I am not sure I can assist you further other than to explain that, as I hope I made clear at the time of my cross-examination, my questioning as to the matters of capability arose from the fact that the practitioner elected to introduce by way of evidence in chief an explanation for why it was that she had committed these acts of dishonesty. The question of whether or not she has sufficient insight into that I thought was called into question by the fact that she appeared to be blaming others, even at this stage, for her actions, but that was the sole purpose of me seeking to introduce any matter related to her capability and certainly it will not be submitted on behalf of the GMC that there are questions relating to her fitness to practise arising out of any investigation into her conduct, nor any issue relating to probity arising out of her application for voluntary erasure, although it is fair to say that it is clear from Rule 24 that you should inquire as to the circumstances in which the practitioner's name was erased in the Register but in the absence of an allegation that those lead to questions about her probity then my view is that that matter is closed.

77. The Chairman then gave his assessment. This, and the discussion of that assessment, are dealt with in Annex 1.
78. Following a request from Mr Somerville concerning how to assess the credibility of Dr Banerjee's evidence the legal assessor gave legal advice ("the legal advice on credibility") as follows:

[1/94/7] THE LEGAL ASSESSOR: You assess as such in that you have to make any decisions on fact, then you assess them in the usual way and using the civil standard of proof and I know the hearing is not finished, but as far as today's hearing is concerned, I can find, looking at the determination from before, it is quite clear what the Council's case is today and that is that they accept that the capability issues were dealt with and are dealt with in the determination and I can find that quite clearly and it says:

"In all the circumstances, the Panel is not satisfied that the concerns regarding your capability are serious enough so as to raise any issue about your fitness to practise."

[1/94/8] So that is, to an extent, a closed door so far as this Panel is concerned. I have not found anything quite so decisive on what they found about any issues over the voluntary erasure. It is right that you cannot hear today's hearing in a vacuum, you cannot ignore what has gone on before, otherwise you would not have the full picture, but I think it would be wrong to reopen matters that have been decided by the previous Panel. Your function today is essentially to look at what has happened and what has changed between an appearance in 2013 – and I am afraid I cannot remember the date – when she made her first application to see what she has done in the meantime to improve the position.

[1/95/1] Unless she has done something else, so far as what was before that Panel nothing has changed so far as those two determinations about her voluntary erasure and her fitness to practise, then she should not really be expected to have to answer questions or convince you again that she is fit to practise as far as capability is concerned, but obviously the dishonesty matter is still a live issues, and was the issue that was concerning the Panel and the reason they did not restore her on the last occasion. If there are matters that have come up in her evidence that give you cause for concern so far as probity is concerned or her credibility, then that is something you can put into the balance when determining her evidence, but I think there is a danger maybe of widening the ambit of today's hearing beyond what certainly the parties expected to cover today. That is understandable for a number of reasons and one is, as I say, you cannot look at the allegations without looking beyond them to see why the falsifications were made, without having examined the capability or the capability issues. It would not have made any sense to say three e-Portfolios references were falsified, you had to know what the history was. I think there is a danger that maybe we are going beyond the ambit of the GMC's case and, of course, it is their case not anybody else's, the objection to the application is for them not for anybody else.

79. Following that advice the Chairman asked if there were any further questions for Dr Banerjee. This led to 5 questions from Ms Staveley. Those questions, and Dr Banerjee's answers, are dealt with in Annex 1.
80. Mr Rowley then asked some further questions of Dr Banerjee. She confirmed that, as stated in the first refusal decision, she had changed her mind about not pursuing a career in medicine following a short period of reflection and discussion with family and friends.
81. This completed Dr Banerjee's evidence. Mr Rowley then made two submissions to the panel, both of them on the footing that he agreed with the legal assessor's advice. First, he submitted that a restoration hearing had an element of review: it was necessary to look back in order to understand the context. That element of review had, he said, perhaps given rise to

some of the difficulty that we have been trying to circumnavigate today.

82. Second, Mr Rowley referred to a series of documents which had been produced during the course of the panel's questioning of Dr Banerjee. Dr Banerjee had stated that they should be read in conjunction with other material seen by the first panel. Accordingly Mr Rowley invited the panel to attach a degree of caution to the documents which had been produced and not to see them in isolation.
83. The hearing was then adjourned to the following morning. On that morning Mr Rowley produced some additional documents for the panel. They included the case examiners' decision document referring Dr Banerjee's current application to the panel, which made it clear that the matters of probity and insight giving rise to the reference were those identified in the first refusal decision. Mr Rowley then closed Dr Banerjee's case.
84. Ms Woodward, in closing submissions for the GMC, submitted that Dr Banerjee had continued to show a lack of judgment or insight. The panel, she submitted, must not fail to meet their obligation to declare and uphold appropriate standards of conduct and behaviour required of registered practitioners. Accordingly she urged that the panel should only order restoration if satisfied that this would not undermine public confidence in the profession. In that regard, she reminded the panel of the GMC's Indicative Sanctions Guidance. Among other passages in that document she referred in particular to paragraph 111:

Dishonesty, especially where persistent and/or covered up, is likely to result in erasure.

85. In her closing submissions Ms Woodward expressly disclaimed any suggestion that Dr Banerjee, by making her application for voluntary erasure, had deliberately sought to circumvent the process that would otherwise have applied. With that exception, Ms Woodward's closing submissions made no reference to the voluntary erasure and change of mind topic.
86. Mr Rowley made submissions which covered in detail, among other things, the evidence concerning Dr Banerjee's experience at the Royal Berkshire Hospital by way of background to her dishonesty, and her experience of giving evidence to the first panel and at the second restoration hearing. Mr Rowley asserted that Dr Banerjee was right to feel extremely aggrieved that what had been said about her by individuals at the Royal Berkshire Hopital was untrue, unfair and false. He suggested that a member of the public would understand a decision by the panel to give Dr Banerjee a second chance.
87. In relation to voluntary erasure, Mr Rowley referred to the case examiners' decision document, stressing that it had led her to understand that the issues of probity for consideration at the second restoration hearing were those referred to by the case examiners in their decision. When she was asked about voluntary erasure, this had been:

distressing for her, because she went through all of those matters in some detail last year, but if that came out in her demeanour at all in the course of yesterday then she means absolutely no discourtesy by that at all, it is not a discourtesy to this panel, it is more just a reflection of reliving events of last year.

88. The panel then received advice from the legal assessor. That advice included the following:

… You have had evidence from Dr Banerjee, you have received documents and you have heard submissions from both parties, but the decision is a matter for your own judgment. In exercising your discretion you should have regard to the main objective of the GMC Register to protect, promote and maintain the health and safety of society; in other words, at the centre of your decision should be the protection of the public including patients and the wider public interest, that is the upholding and maintaining of proper standards of conduct and behaviour within the profession.

…

… The previous panel were exercised over the voluntary erasure and Dr Banerjee's intentions and that is a concern that has been shared by this panel. However, the previous panel heard evidence and concluded that there was insufficient evidence to suggest that the question raised sufficient evidence to show a lack of probity and so, again, although helpful to put matters in context, it is not something that needs to concern this panel.

…

You have heard evidence from Dr Banerjee and you should treat that in the usual way. It is a matter for you in your judgment whether you find her to be a credible witness. You have seen her and it is for you to judge her demeanour and so forth. Perhaps you should remember when considering her evidence, that she was asked a great deal of background regarding other issues which are not before you today and, of course, she answered those questions without the benefit of all the papers and you will be aware that giving evidence is a way of establishing the truth, not a memory test.

…

The decision whether to exercise your discretion today to restore Dr Banerjee is entirely a matter for your own independent judgment. You may ask yourselves the question: has the doctor demonstrated to you that if her name were to be restored to the Register there would be no concerns for patient safety and it would not undermine public confidence in the profession? Put simply, if the concerns of the previous Panel have been allayed you should accede to the application, if not, and the concerns remain and have not been addressed by the doctor to your satisfaction, then you should reject the application.

89. The hearing was then adjourned while the panel deliberated upon the application.

B5.9 The second refusal decision

90. The hearing resumed later that day. The chairman read out the determination of the panel. After recording the background, submissions, and legal advice, the Chairman turned to a section of the determination entitled, "Panel's decision" ("the decision section").
91. The decision section recorded what had been said in the first refusal decision about probity in relation to the e-portfolio falsifications. It then stated:

The panel has had regard to your expression of regret and apology made throughout your evidence. It has noted the previous panel's observations that you are 'genuinely contrite about your dishonesty'. However, the panel noted that in your evidence you often did not respond to questions directly. For example, the panel considered that you were evasive about how you had appeared to have decided to seek VE while almost simultaneously seeking registration and job opportunities in other jurisdictions.

92. The decision section then made observations about documents relating to the period since the first refusal decision. The remainder of the decision section was as follows:

In relation to the falsification of the three e-portfolio records, the Panel notes that you attempted to cover up your actions by telling colleagues that an email had been sent in error. You only admitted your dishonest behaviour after several meetings. This admission was on 15 February 2011 which was 20 days after the first incident [25 January 2011]. The implications of that are that this was a calculated dishonesty which you only admitted once you were aware there was to be an investigation.

The Panel considers that the nature of your original dishonesty, together with your attempt to conceal it, in itself was a very serious departure from the standards of behaviour expected of a doctor. That dishonesty was triggered because you perceived there to have been unjustified criticisms of your work which might have an adverse impact on your career. In your evidence you constantly made reference to the capability issues being fabricated by your colleagues and by colleagues who had conspired against you. The Panel found that this continued inability to recognise and respond to criticisms demonstrates a lack of insight and understanding of the serious nature of your behaviour. The Panel consequently considers that, met with similar criticisms, there is a risk of repetition.

In summary, the Panel has heard your expressions of regret at your dishonest falsification of documents, but has insufficient evidence to reassure it that you have fully appreciated the serious implications of your dishonest behaviour, which would, but for your VE, almost without doubt have resulted in a FTP Panel imposing a severe sanction. On this basis it has to conclude that it would not be safe or in the public interest for you to be deemed fit to practise. To restore you at this point would damage public confidence in the profession.

In all these circumstances, the Panel has determined not to grant your application for restoration to the medical register.

The Panel has noted that you have now made two unsuccessful applications for restoration. It notes the guidance on these matters which states that:

"If you make two unsuccessful applications, your right to make further applications may be suspended indefinitely by the FTP Panel that considers your application for restoration …"

The Panel now invites submissions from both counsel as to whether your right to reapply for restoration should be suspended indefinitely.

93. At this time the matter was adjourned for a short time. Ms Woodward stated that her instructions were that suspension of the right to reapply for restoration was a matter for the panel. The chairman informed Mr Rowley that the panel was not considering an indefinite order. Mr Rowley made submissions urging that Dr Banerjee be entitled to make an application for review in three months' time, thereby enabling a hearing to take place in six months' time. The panel deliberated upon the matter.
94. When the hearing resumed the chairman read out a determination which included the following:

The panel has determined that the appropriate time to elapse before you may be allowed to make a further application for restoration is 24 months from the date of this decision. It considers that this period is proportionate and sufficient to allow you to reflect further on your dishonest actions and to be able to demonstrate that you are fit to practise.

B6. The present proceedings

B6.1 The claim form and grant of permission

95. A claim form seeking permission to apply for judicial review of the second refusal decision was issued on 2 October 2014. It advanced five grounds. Grounds 1, 3 and 4 alleged that the claimant had been denied a fair hearing and that the nature, tone and content of the panel's questioning and the attitude openly displayed towards her were such that a reasonably informed observer could only have had a real apprehension of bias. By an order dated 11 December 2014 His Honour Judge Raynor QC granted permission to proceed on those grounds. Permission was refused on grounds 2 and 5, which complained that aspects of the panel's decision were irrational. The request for permission in that regard has not been renewed.

B6.2 Mr Rowley's witness statement

96. Mr Rowley's witness statement began with an account of his preparation for the hearing and his discussion with the GMC solicitor dealing with the matter. I have referred in section B4.2 above to what Mr Rowley said in this regard.
97. Mr Rowley's statement then dealt with a number of other matters. I shall refer to three of them. They comprise Mr Rowley's comments on his examination in chief of Dr Banerjee, his comments on Ms Woodward's cross-examination of Dr Banerjee, and his comment on the questions which panel members asked of Dr Banerjee.
98. As to examination in chief, in paragraph 12 of his statement Mr Rowley explained what he had said in his introductory remarks to the panel (see section B5.5 above) before calling Dr Banerjee:

12. … I considered that it would be necessary to ask Dr Banerjee about matters chronologically, going back to early history. It would also be necessary in the course of examination to ask Dr Banerjee about matters concerning capability and the voluntary erasure application forms issued, both in order to present Dr Banerjee to the panel but primarily to contextualise the central misconduct issue concerning the e-portfolio forms completed on 25 and 27 January 2011. It was this central issue of the e-portfolio … forms that I anticipated would form the focus of both the GMC's case, … and also the focus of [the panel]. …

99. As to cross-examination (see section B5.7 above), Mr Rowley noted in paragraphs 15 and 16 that reference was being made to documents in the additional bundles which the panel had not seen, and that the chairman twice remarked on the difficulty of proceeding when reference was being made to documents which were not available to the panel. Mr Rowley continued in paragraphs 17 and 18:

17. … Dr Banerjee represented herself before the Fitness to Practise Panel over a number of days during February 2013. This had included facing cross-examination, but also having to seek to cross-examine witnesses called by the GMC, including consultants from her former employers, Royal Berkshire, which must undoubtedly have been a traumatic experience for her.

18. It was clear to me from my direct observations of Dr Banerjee, in the course of cross-examination in 2014, that she became increasingly unsettled, as matters ventilated in the course of the 2013 proceedings were re-explored in the context of capability and misconduct, albeit with a view to challenging Dr Banerjee's level of insight (and contrary to what she would have anticipated because of my report to her of the GMC's pre-hearing position). Because she was in the middle of cross-examination I was, of course, unable to communicate directly with her one to one to explain why some of these issues were being raised and the limited purpose behind them – as I then saw it.

100. Mr Rowley's statement then turned to questions by the panel. His first observation when describing those questions was set out in paragraph 20:

20. Questions from the panel began with … Mrs Staveley, who is legally qualified (a solicitor). Mrs Staveley's questions … focused immediately on the issue of the voluntary erasure applications.

101. Paragraphs 21 to 26 of Mr Rowley's statement commented on Mr Somerville's questions and Mr Rowley's reaction to them:

21. From the outset, Mr Somerville's questions to Dr Banerjee took the form of cross-examination, which was robust in tone, delivery and content, the like of which I have not previously encountered from a Panel member in proceedings before the Fitness to Practise Panel.

22. Mr Somerville's questioning was also extensive and runs over 17 pages, ... By comparison, GMC Counsel, Ms Woodward's cross examination on every issue takes up 14 pages.

23. The focus of Mr Somerville's questions, … was on the issue of voluntary erasure applications and whether the application was dishonest at the time of making in July 2011.

24. Dr Banerjee's demeanour before the panel rapidly deteriorated during the course of Mr Somerville's questions, increasingly so it appeared to me, as the line of questioning continued in relation to matters surrounding the voluntary erasure applications, which I knew Dr Banerjee had understood to have been closed during the 2013 hearing, and as I had also understood them to be. It is fair to say she fell apart somewhat and became defensive and troubled and I could see how that might be perceived as "evasive".

25. I note from the transcript that on at least one occasion Dr Banerjee raised directly her concern and with some distress as to why the voluntary erasure issue was being raised in this hearing … [the statement then set out Dr Banerjee's answer at [1/83/15], quoted in Annex 1 to this judgment]

26. This was a somewhat difficult position in which I found myself as Dr Banerjee's representative, as I watched Mr Somerville's prolonged questioning. On the one hand, I was concerned about the content and tone of the questioning and the extent to which matters previously ventilated and determined upon in the course of the 2013 proceedings were being revisited and, on the other, I was concerned not to alienate the Panel, which was about to sit to make a determination on whether or not Dr Banerjee should be restored to the register. I was for obvious reasons unable to take instructions and had to make a judgement call without reference to my client as the position we had reached was wholly un-anticipated.

102. Mr Rowley's statement at paragraphs 27 and 28 recorded his intervention, and the advice of the legal assessor, as noted in section B5.8 above. In paragraph 29 he said this:

29. Despite my intervention and also the Legal Assessor's advice, which was supportive, I noted that questioning from the other lay, but legally qualified, panellist, Mrs Staveley, continued nevertheless along the same issue of voluntary erasure applications [a page reference was then given corresponding to [1/95/3] onwards, as set out in Annex 1 to this judgment].

103. At paragraphs 32 and 33 Mr Rowley stated:

32. Dr Banerjee was clearly much troubled and distressed by the course of proceedings during the afternoon of 2 July 2014, in particular, arising out of the tone and style of questioning of the first of the two legally qualified panellists, Mr Somerville.

33. I also was troubled by the tone and style of Mr Somerville's examination, the like of which I had not encountered previously in the course of over 10 years of work in this field, on both GMC and defence sides (prior to my current position I worked in house as a solicitor for the GMC prosecuting in FTP cases), sufficiently so that I was prompted to do a search on my mobile phone to see if I could reveal more about Mr Somerville's profile. The search revealed, from my recollection, Mr Somerville's qualification as a Barrister and that his practice appeared to have special interests in the areas of alternative dispute resolution, employment and regulatory proceedings.

B6.3 Dr Banerjee's witness statement

104. In her witness statement Dr Banerjee said that she had been surprised by the questions in cross-examination. She perceived them as re-introducing issues of capability that had been resolved in her favour in the first refusal decision. The witness statement commented that what the GMC said about capability assessments was based on hearsay, and that this had been accepted by the first panel. It said that Dr Banerjee had been very puzzled when it was raised again. In that regard it added that, in the absence of legal training, she had got confused by the difference between lack of evidence and fabrication.
105. Turning to the second panel's questioning on the voluntary erasure and change of mind topic, the witness statement said that she became very agitated by this line of questioning. The second panel seemed to have paid no attention to, or decided to disregard, what had been said in the first refusal decision. According to the witness statement, it seemed to Dr Banerjee that the second panel focussed, to the exclusion of the real issue, on the voluntary erasure and change of mind topic. It said that by the end of the first day Dr Banerjee was very distressed, and knew that she was not going to be restored.
106. The witness statement made numerous criticisms of the second panel and of Mr Somerville in particular. Ms O'Rourke has pursued only some of these criticisms. I deal in Annex 1 to this judgment, and in section E below, with those that were pursued. As to those that were not pursued, I simply note three things. First, Ms O'Rourke was right not to pursue them: they reflect deeply subjective perceptions by Dr Banerjee going beyond what could legitimately be asserted by way of complaint. Second, those perceptions must have contributed significantly to Dr Banerjee's distress at the end of the first day of the hearing. Third, those perceptions are not matters which I hold against Dr Banerjee in any way.

B6.4 The oral and written submissions

107. Oral submissions on the application for judicial review were heard initially in Manchester on 31 March 2015. In the course of submissions I invited counsel to consider whether Dr Banerjee might be entitled to relief on the ground of procedural mishap. It was not in any event possible to complete oral submissions that day. Each side thereafter lodged written submissions on procedural mishap which concluded that Dr Banerjee would not be entitled to relief on that ground. Oral submissions resumed in London on 10 June 2015. I address relevant submissions in section E below.
108. Both in March and in June Ms Mary O'Rourke QC appeared for the claimant and Ms Catherine Callaghan appeared for the GMC. Neither of them had appeared before the first or second panel. I am grateful to them both for the assistance that they provided orally and in writing.

C. Regulatory Framework

109. The regulatory framework is not in dispute. I set out a brief account based on the written and oral submissions of Ms Callaghan.
110. Under section 1(1A) of the Medical Act 1983 as amended ("the Act"), the GMC's main objective is to protect, promote and maintain the health and safety of the public. It is not disputed in this regard that:

(1) the GMC is obliged to act in the public interest;

(2) acting in the public interest includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour; and

(3) acting in the public interest requires the GMC to protect the public from doctors who are unfit to practise, and not to permit such doctors either:

(a) onto the medical register; or

(b) if they have come off the medical register, to be restored onto it.

111. Section 1(3) of the Act states that the GMC is to have committees comprising, among others, one or more Interim Orders Panels under s 1(3)(b) and one or more Fitness to Practise Panels under s 1(3)(f).
112. Under section 2 the GMC is to keep the register of medical practitioners. Section 31A permits the GMC to make regulations:

(1) under s 31A(1)(a), for erasure from the register of the name of a person who applies for that purpose;

(2) under s 31A(1)(b), for refusal of such applications, and

(3) under s 31A(1)(c), for restoration to the register of the name of a person whose name has been removed from the register under regulations made for the purpose of paragraph (a).

113. Part V of the Act is concerned with fitness to practise and medical ethics. Section 35C(2) states that a person's fitness to practise is to be regarded as "impaired" for the purposes of the Act only by reason of matters set out in six paragraphs. Of these, paragraph (a) is misconduct, and paragraph (b) is deficient professional performance.
114. In cases where a Fitness to Practise Panel finds impairment by reason of misconduct or deficient professional performance, by section 35D they may:

(1) under s 35D(1)(a), direct that the person's name shall be erased from the register;

(2) under s 35D(1)(b), direct that the person's registration be suspended for a period not exceeding 12 months;

(3) under s 35D(1)(c), direct that the person's registration shall be conditional upon compliance, for a specified period not exceeding three years, with requirements specified for certain purposes.

115. Following erasure under s 35D, a person whose name has been erased may apply to a Fitness to Practise Panel for a direction restoring that person's name to the register. However by s 35D(2)(a) no such application shall be made before the expiration of five years from the date of erasure.
116. The General Medical Council (Voluntary Erasure and Restoration following Voluntary Erasure) Regulations 2014 ("the VE Regulations") have been made by the GMC under s 31A. They consolidate earlier regulations and have effect from 1 November 2004. Under regulation 3(4) a voluntary erasure application, if an allegation against the practitioner is being investigated in order to decide whether it should be referred to a FTP Panel, must be referred to a medical and a lay Case Examiner. If the Case Examiners grant the application then the practitioner's name must be erased from the register accordingly.
117. Under regulation 4 an application to be restored following voluntary erasure in circumstances such as the present may be referred for consideration by a medical and a lay Case Examiner in accordance with regulation 5. Regulation 5(3) empowers Case Examiners, among other things, to refer the matter for consideration by a FTP Panel. Where, as in the present case, there is such a referral, then:

(1) under regulation 5(8) a FTP Panel shall consider the application in accordance with rule 24 of Part 6 of the Fitness to Practise Rules; and

(2) under regulation 5(9), if a FTP Panel decides to reject a restoration application, then the applicant may not make a further restoration application until the expiry of—

(a) a period of 12months from the date of the FTP Panel's decision; or

(b) such other period as the FTP Panel may specify.

118. It may be noted that the VE Regulations confer no power to grant a restoration application subject to compliance with conditions.
119. Where a FTP Panel is considering an allegation of impairment by reason of misconduct or deficient professional performance, then the General Medical Council (Fitness to Practise) Rules 2004 as amended ("the FTP Rules") provide:

(1) under rule 15, for a notice of hearing which must particularise the allegation against the practitioner and the facts upon which it is based;

(2) under rule 17, for a staged procedure under which after hearing evidence the FTP Panel is to consider and announce its findings of fact, and only thereafter is the FTP Panel to receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired.

120. By contrast, where a FTP Panel is considering a restoration application under s 31A, the FTP Rules provide:

(1) under rule 24(2)(c), that the GMC Presenting Officer shall address the FTP Panel as to the background to the case and the circumstances in which the applicant's name was erased from the register; and

(2) under rule 24(2)(f), that after hearing evidence and submissions the FTP Panel shall then consider and announce whether to grant or refuse the application, and shall give its reasons for that decision.

121. Thus a restoration application does not involve a staged procedure of the kind which occurs at an impairment hearing. It does, however, involve one feature not present at an impairment hearing, namely the duty on the GMC Presenting Officer to address the FTP Panel as to the background to the case and the circumstances in which the applicant's name was erased from the register.
122. The GMC has issued Guidance on making decisions on voluntary erasure applications ("the VE Guidance"). The VE Guidance states, among other things:

9 … decision makers need to bear in mind that voluntary erasure is not necessarily permanent. The (potential) threat posed by a doctor might be revived by a future application for restoration to the register. Of course, the Voluntary Erasure Regulations provide a safeguard in that such applications for restoration would not be granted automatically. Such an application would be referred once again for the case examiners to consider where any unresolved complaints would be taken into consideration.

10 Nevertheless, the revival of an unresolved complaint may be easier said than done. During the interval, between the granting of voluntary erasure and the application for restoration, evidence of any alleged misconduct might have disappeared or deteriorated, for example, because a witness's memory has faded or he or she has become uncontactable or even died. This raises the prospect of a doctor's name being restored to the register following voluntary erasure where he or she may not have retained unrestricted registration if the original complaint had been allowed to run its course.

11 It is likely, therefore, to be safer to agree to voluntary erasure in cases in which the doctor is willing to formally admit to the allegations against him or her. (In these circumstances, in the event of voluntary erasure being granted, details of the allegations admitted should be made available to relevant enquirers (including potential employers and overseas medical authorities). The allegations admitted would also be considered if the doctor subsequently applies for restoration to the register.

…

16 If the allegations are primarily about misconduct, a conviction or a determination concerning the doctor's conduct, there are more likely to be arguments in favour of refusing the application for voluntary erasure. This is particularly likely to be the case if the allegations fall within the categories for which there is a presumption of impaired fitness to practise. In these particular circumstances, voluntary erasure is only likely to be appropriate in exceptional circumstances. These might include situations in which medical evidence from an independent source gives a clear indication that the doctor is seriously ill and would be unfit to participate in our fitness to practise procedures.

17 If the allegations are multifactorial, the case examiners will need to look at all the allegations and consider whether, in all the circumstances, voluntary erasure may be appropriate. Again, if the allegations include some for which there is a presumption of impaired fitness to practise, voluntary erasure is unlikely to be appropriate, unless there are exceptional circumstances.

…

The likelihood of the doctor seeking restoration to the register

24 In general, except where the allegations and concerns relate solely to a doctor's health, if decision makers consider that a doctor is likely to seek restoration to the register it will not be appropriate to grant voluntary erasure. This is because where there are outstanding fitness to practise concerns, voluntary erasure is granted on the basis that removal of the doctor's name from the register will ensure that patients are protected in the future.

Career stage

25 One of the most significant factors in considering the likelihood of a doctor seeking restoration to the register is whether the doctor is at an early or later stage of their career.

26 Where a doctor applies for voluntary erasure during the later stages of their career and can provide evidence to support their intention to permanently retire from the profession this is generally a strong indicator that they are unlikely to seek restoration in the future. However, caution should be applied where the doctor is at an early or mid-career point, where the prospect of return to work is significantly higher.

27 In exceptional cases, doctors at a very early stage in their working life may demonstrate genuine insight and express their intention to pursue an alternative career path and may be able to provide robust evidence of that intention. Decision makers should consider carefully the availability of any supporting evidence, for example steps taken to retrain in another profession, in exercising their discretion.

…

The genuineness of a doctor's desire to cease to be registered

31 The genuineness or sincerity of a doctor's desire to cease to be registered is a significant factor for consideration in deciding whether or not it may be appropriate to grant voluntary erasure.

32 Where there is evidence to support the fact a doctor had already instigated steps to retire from medical practice, or reduce the scope of their medical practice before any concerns were raised, this may be a strong indicator that the doctor's desire to cease to be registered is sincere. Caution should be applied where an application for voluntary erasure appears to be triggered by fitness to practise proceedings.

33 In assessing the genuineness of a doctor's desire to cease to be registered, decision makers should consider any insight the doctor has shown in relation to any concerns raised about their fitness to practise. Decision makers may also wish to consider whether the doctor has previously been truthful in any communication with the GMC and other reputable bodies, in assessing the doctor's credibility and sincerity.

Any evidence that the doctor has no intention to practise in the UK or elsewhere in the future

34 In general, except where the allegations and concerns relate solely to a doctor's health, if decision makers believe that a doctor intends to practise in the UK or elsewhere in the future it will not be appropriate to grant voluntary erasure. …

35 Where a doctor expresses an intention to practise medicine either overseas, on a part-time basis, or in private practice in the future this is as equally relevant as where the doctor expresses an intention to practise medicine on a full-time basis in the UK. Whilst the remit of the GMC is confined to regulating doctors in the UK we have a wider public interest in ensuring the protection of patients everywhere.

…

Dealing with applications for restoration following voluntary erasure

38 Doctors can apply for restoration following voluntary erasure at any time. When applying for restoration the burden lies with the doctor to demonstrate that they are fit to practise. If any fitness to practise concerns have arisen since the doctor was removed from the register or if there are any outstanding issues, the registrar would refer the matter to the case examiner for consideration.

123. The GMC has issued Indicative Sanctions Guidance for the Fitness to Practise Panel ("the Sanctions Guidance"). The Sanctions Guidance states, among other things:

105 The GMC's guidance, Good medical practice, states that registered doctors must be honest and trustworthy, and must never abuse their patients' trust in them or the public's trust in the profession …

108 Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor's clinical responsibility, e.g. providing false statements or fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession. The Privy Council has emphasised that:

"… Health Authorities must be able to place complete reliance on the integrity of practitioners; and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole."

111 Dishonesty, especially where persistent and/or covered up, is likely to result in erasure.

124. The General Medical Council (Constitution Of Panels And Investigation Committee) Rules 2004 ("the Constitution Rules") provide:

(1) by rule 3, that the GMC shall appoint and maintain a list of medical and lay appropriate persons eligible to act as panellists ("the list of eligible panellists");

(2) by rule 2, that:

(a) "medical" in relation to any person means a registered medical practitioner;

(b) "lay" in relation to any person means a person who is not and never has been provisionally or fully registered, was at no time registered with limited registration and does not hold qualifications which would entitle them to apply for provisional or full registration under the Act; and

(c) "appropriate person" means a person of good character who is fit to sit as a panellist.

(3) by rule 5, that the GMC shall appoint and maintain, from the list of eligible panellists, a list of panellists eligible to act as Chair of a panel ("the list of eligible Chairs");

(4) by rule 4, that subject (among other things) to rule 6, membership of a panel shall comprise medical and lay panellists whose names are on the list of eligible panellists, and shall include at least one person whose name is on the list of eligible Chairs; and

(5) by rule 6, that the quorum of a panel is to be three panellists, including the Chair, of whom:

(a) at least one must be a medical panellist; and

(b) at least one must be a lay panellist.

D. Relevant legal principles

D1. The powers of the panel

125. Important aspects of the powers of the panel were not in dispute. I take them in turn.
126. First, the panel has an inquisitorial function. It does not merely hold the ring; panel members can ask questions in an inquisitorial way.
127. Second, despite what was said by both parties and the legal assessor during the "closed matters" discussion, the second panel was not bound by findings of first panel.
128. Third, in reaching its decision on the second restoration application the panel had a very broad discretion.
129. Fourth, the procedure on a restoration application differs from a misconduct hearing. It does not involve a separate fact-finding stage, and it does not entitle an applicant to an opening submission. There is no complaint about this.
130. Fifth, while the panel's discretion is a broad one, it has only two options as to its decision: it either allows the application or it refuses it. There is no half way house – it cannot allow the application subject to conditions.

D2. The duties of the panel

131. It is common ground that restoration applications engage article 6 of the European Convention on Human Rights. It is also common ground that the requirements of article 6, so far as the present case is concerned, add nothing to those imposed by the common law. I therefore say no more about them.
132. It is also common ground that, in relation to courts of law and judges who preside in them, the governing principles at common law are those described by the Privy Council in Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44, an appeal from the Court of Appeal of the Cayman Islands. The judgment of the Privy Council was delivered by Lord Walker of Gestingthorpe. At paragraph 91 of the judgment he noted three grounds on which an appellate court may conclude that a new trial must be ordered:

(1) the first ground identified was where the court below had decided the case without sufficient regard being paid to the building blocks of the reasoned judicial process; Lord Walker added that in the absence of unfairness an appellate court will always be most reluctant to order a new trial on this ground;

(2) second, a new trial may have to be ordered, and will in the absence of waiver be ordered as a matter of course, on the ground that the judge was disqualified by actual or apparent bias;

(3) third, a new trial may have to be ordered because the judge was guilty of misconduct at trial by over-frequent interventions and usurpation of the role of counsel.

133. Both the second and third of these categories were invoked in Demarco Almeida, and both are invoked by Dr Banerjee in the present case. However in Demarco Almeida the Privy Council concluded that an analysis by reference to apparent bias would, in the context of that case, not be called for where common law principles concerning judicial intervention were invoked. The parties agree that this is equally true in the present case.
134. It is important to note that common law principles concerned with the role of judges may not apply without qualification to tribunals. In the present case, however, I have not found it necessary to explore the degree to which this may be so.
135. Ms O'Rourke selected six features which, she submitted, emerged from Demarco Almeida and other cases. It is plain from Demarco Almeida that mere presence of one or more of these features will not necessarily result in such unfairness as to call for a new trial. Ms O'Rourke accepted that the test is one of overall fairness when looked at as a whole. It involves assessing the nature and circumstances of the judicial interjections, and whether what happened would affect confidence in impartiality and independence. In my view, whether there has been overall unfairness will often by highly fact-sensitive. With that caveat, I set out Ms O'Rourke's formulation of her six features:

(1) the Judge should refrain from usurping the role of counsel;

(2) whilst the Judge can and must ask questions these should primarily be for the purpose of clearing up ambiguities or issues left uncertain after questioning by counsel;

(3) the questions should not be in the type/ style of cross-examination but should be framed in a neutral or inquisitorial way;

(4) the questions should not inhibit the witness/ party giving evidence they want to give;

(5) in asking questions the judge must remain neutral;

(6) the questioning must not be for the purpose of making a case for one party or to introduce issues which the opposing party has not sought to raise or develop.

E. Analysis of the complaints

E1 Overview of the complaints

136. In Annex 1 to this judgment I have set out relevant extracts from the transcript of questions by the panel and answers given by Dr Banerjee to those questions. In the remainder of this section I will refer to those extracts as the need arises.
137. The essential submissions of Ms O'Rourke on behalf of Dr Banerjee were that overall unfairness could be discerned from a combination of six factors: (1) the number of questions asked (by Mr Somerville in particular), (2) the apparent closed mind(s) (by reason of the manner and wording of questions), (3) the style of questioning (language of a 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.
138. I deal with these factors in section E3 below. Before doing so, I deal with some preliminary matters in section E2 below.

E2 Preliminary matters

E2.1 What would have happened at a misconduct hearing

139. In her submissions Ms Callaghan canvassed what the position would have been if there had been no voluntary erasure. It is not disputed that in that event the GMC investigation into Dr Banerjee's dishonesty would have resulted in a misconduct hearing. On her own admission Dr Banerjee had been guilty of dishonesty. Plainly she would have been found guilty of misconduct.
140. Ms Callaghan submitted that this is likely to have resulted in (or almost certainly would have resulted in) erasure of Dr Banerjee's name from the register. However I do not consider that I can reach such a conclusion. I advised both sides that in my view I could say no more than that erasure would have been a real possibility. This does not mean that I have formed a view, on the balance of probabilities, that erasure would have resulted. It simply means that it might have resulted.

E2.2 Mr Rowley's impression of questioning by the panel

141. Ms O'Rourke relied on Mr Rowley's account in his witness statement of the impression that the questioning by the panel made upon him. I accept that he is a solicitor with experience in this field as a GMC lawyer and as a lawyer acting on behalf of doctors.
142. I do not consider, however, that I can place substantial weight on this aspect of what Mr Rowley says in his statement. The reason is that in my view that statement gives a highly subjective account in this respect. In particular:

(1) in her examination in chief Dr Banerjee had said that the applications to apply overseas arose from what was said by the MPS concerning consideration of voluntary erasure, namely when considering this she should "keep other options open" ([1/33/14]), that "obviously there was no intention on my part to ever avoid any fitness to practise hearing or anything like that … it was just a genuine attempt to try and keep options open, knowing that the regulators communicate with each other and then the matters would be conveyed" ([1/34/2]). There was no recognition in Mr Rowley's statement of the alarm that this would inevitably cause.

(2) When describing Ms Staveley's initial questions, Mr Rowley's perception of them as described in paragraph 20 of his statement was inaccurate (see section of A1A of Annex 1).

(3) There was no recognition that Dr Banerjee's answer to Mrs Staveley's second question was clearly evasive (see section of A1A of Annex 1).

(4) Nor was there a recognition that other answers were evasive.

(5) Mr Rowley plainly viewed Mrs Staveley's final questions as running counter to the legal assessor's advice. This simply ignored Mrs Staveley's explanation that the sole purpose of her additional questions was to get the chronology right (see section A1M of Annex 1).

E3. The six factors relied on by Dr Banerjee

E3.1 The number of questions

143. I do not accept that any adverse inference can be drawn from the number of questions. Indeed the Privy Council in Demarco Almeida observes at paragraph 99 of the judgment that whether a judge's interventions are proper or improper cannot be decided by a simple process of counting questions. In the present case, as seen in Annex 1, the questions resulted in large part from a lack of documentation. It is hardly surprising that when documents were provided they resulted in additional questions.

E3.2 Alleged apparent closed minds

144. This feature is said to be demonstrated by the manner and wording of questions. As appears from Annex 1 however, on analysis the wording of the questions has often been misunderstood by Dr Banerjee and her legal team. For reasons given in section E2.2 above I cannot accept Mr Rowley's observations about manner of questioning.

E3.3 Style of questioning

145. Ms O'Rourke contended that Mr Somerville used the language of a lawyer and was in essence a prosecutor. For the reasons given in Annex 1 neither contention has merit.

E3.4 Alleged cross examination by panel members

146. Numerous questions were said to have been formulated by way of cross-examination. Some were said to have been designed to obtain a concession against interest from Dr Banerjee. For the reasons given in Annex 1 these suggestions are misconceived.

E3.5 Overall combination

147. Ms O'Rourke submitted that, from all panel members over the whole "trial", there was an appearance of unfairness and a real danger that the hearing was unfair. My detailed examination in Annex 1 however, shows that there is no basis for this assertion.

E3.6 Stepping into counsel's shoes

148. Ms O'Rourke submitted that, when judged against the questioning by Ms Woodward, there had been on the part of the panel a movement into counsel's shoes. I do not accept this. It is plain enough that the panel was troubled by matters which Ms Woodward had not raised. However in the light of Dr Banerjee's examination in chief they were fully entitled to be troubled. For the reasons given in Annex 1 they did not overstep the mark when raising their concerns with Dr Banerjee.

F. Conclusion

149. For the reasons given above this application for judicial review must be dismissed.

		Neutral Citation Number: [2015] EWHC 9999 (Admin)
		Case No: C0/4607/2014

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT


		Royal Courts of Justice Rolls Building Fetter Lane London EC4A 1NL
		30/07/2015

B e f o r e :

MR JUSTICE WALKER
____________________

Between:


	The Queen on the application of Nandini Banerjee	Claimant
	- and -
	General Medical Council	Defendant

____________________

Ms Mary O'Rourke QC (instructed by Ryans LLP) for the Claimant
Ms Catherine Callaghan (instructed by GMC Legal) for the Defendant
Hearing dates: 31 March (Manchester) and 10 June (London) 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Approved Judgment: Annex 1
Paul Walker, 30 July 2015.

Mr Justice Walker:

Table of Contents

Annex 1:	A1.1
The panel's questions to Dr Banerjee and her answers	A1.1
A1A: Mrs Staveley: the initial state of mind exchange	A1.1
A1B. Questioning by Mr Somerville	A1.5
A1C: The chairman's questions	A1.29
A1D: The panel disadvantage exchange	A1.33
A1E: Further questions from the chairman	A1.34
A1F: Production of C2 and C3, and D2, D3 and D4	A1.36
A1G: Mr Somerville's further questions	A1.41
A1H: Mr Rowley's reference, and Mr Somerville's follow-up	A1.48
A1J: Exchanges between Mr Rowley and the chairman	A1.56
A1K: The "closed matters" discussion	A1.60
A1L: The chairman's assessment, and the ensuing discussion	A1.61
A1M: Legal advice on credibility & Mrs Staveley's final questions	A1.63

Annex 1:

The panel's questions to Dr Banerjee and her answers

A1A: Mrs Staveley: the initial state of mind exchange

1. A1.1 Once Mr Rowley had said that he did not wish to re-examine the chairman invited questions from Mrs Staveley. Mrs Staveley had only two questions. Both concerned a particular aspect of Dr Banerjee's state of mind at the time when she was indicating to the GMC that she no longer wanted to practise medicine. I shall refer to these questions, and Dr Banerjee's answers, as "the initial state of mind exchange". It was as follows:

[1/60/10] MRS STAVELEY: Doctor, good afternoon. Doctor I would just like to explore with you the matters that you made reference to this morning when you told us of your state of mind and the stress that you were under. I wonder if you could explain to me – and I obviously fully appreciate the concerns and distress that you have concerning your father's health and the fact that you had been told to expect the worst given the condition – what I do not understand is why, therefore, at that particular period of time, when you were indicating on one hand to the GMC that you no longer wanted to practise medicine, you were making applications for jobs elsewhere on the other side of the world. I do not seem to be able to collate that.

[1/61/1] A Well, I mean, because I had discussed the matters with MPS and they said that I should still explore options. One option is working overseas and obviously, as I said before, even if a doctor does choose to work overseas I firstly have always made full disclosure of all GMC matters and, secondly, I am conscious of the fact that I discussed the matter with the GMC and asked them whether they would be agreeable to sending a Certificate of Good Standing which would detail any issues which were outstanding in this country. So it was just a simple desire to keep options open, knowing that the other regulators would be fully aware of all the matters here, not to avoid anything.

[1/61/2] Q No, doctor that was not the question I asked you. I asked you how it was that you were making applications to the other side of the world when you told us that you were under so much pressure and stress because of the concerns relating to your father's health? That is what I could not understand.

[1/61/3] A It is because I discussed matters with MPS and they said I should still keep all options open even if I was thinking of leaving medicine, I should still effectively keep one foot in the door.

2. A1.2 In oral submissions Ms O'Rourke suggested that the second question by Mrs Staveley was a "reprimand". Apart from that, Ms O'Rourke did not criticise these questions by Mrs Staveley. In his witness statement, however, Mr Rowley said at paragraph 20 that "Mrs Staveley's questions focussed immediately on the issue of the voluntary erasure applications": see section B6.2 of the main judgment. This misunderstood Mrs Staveley's questions. Her first question mentioned the period of time when Dr Banerjee was indicating to the GMC that she no longer wanted to practise medicine. As Mrs Staveley pointed out in her second question, however, her focus was not on voluntary erasure. It concerned something different which she could not understand: namely, in the light of the concerns and distress that Dr Banerjee had concerning her father's health, and the fact that she had been told to expect the worst given his condition, why would Dr Banerjee be making applications for jobs elsewhere on the other side of the world?
3. A1.3 It is plain that Dr Banerjee misunderstood the true focus of the first question. But there can have been no doubt, once Mrs Staveley asked her second question, what it was that was puzzling Mrs Staveley. Rather than answer Mrs Staveley's second question, however, Dr Banerjee answered a different one. Mrs Staveley's second question was clear and simple. It was not concerned with voluntary erasure. There was no ambiguity as to what it was about. In these circumstances it is fair to say that, at the outset of her answers to the panel questions, Dr Banerjee was evasive.
4. A1.4 The focus of Mrs Staveley's questions was entirely fair. It is perplexing that someone who had been told that their father was about to die should be thinking about moving within a short space of time to the other side of the world. Neither Mrs Staveley nor other panel members followed this up: they simply did not take this aspect any further. It remains one of a number of puzzles about Dr Banerjee's evidence. I add that for the reasons set out above Ms O'Rourke was wrong to characterise Mrs Staveley's second question as a "reprimand".

A1B. Questioning by Mr Somerville

5. A1.5 The chairman then invited Mr Somerville to ask questions. While Ms O'Rourke has not criticised Mrs Staveley's initial questions, she has criticised Mr Somerville's initial questions, which she submits contain examples of things which were inappropriate. I shall refer to the passage containing Mr Somerville's initial questions as "example 1":

[1/61/6] MR SOMERVILLE: Thank you. If I could just take that a bit further. What was the actual undertaking, what representations were you making to the GMC at the time that you made your application for voluntary erasure?

[1/61/7] A Well, the letter was written by MPS's solicitor, but he effectively made a full disclosure about these fitness to practise issues, at the same time giving issues of my personal circumstances. So I think he covered both branches of those.

[1/61/8] Q Okay, let me be clearer then. Did you state to the GMC that you no longer wished to practise medicine?

[1/61/9] A Yes, at the time I did, yes.

[1/61/10] Q And am I right in thinking that that was in June 2011?

[1/61/11] A Yes, the application was made then, yes.

[1/61/12] Q Did that undertaking or representation, was that qualified by saying that you did not wish to practise medicine in the UK or was it an open assertion?

[1/61/13] A I think it was an open assertion.

[1/61/14] Q So if it was an open assertion that you were no longer interested in pursuing a career in medicine, would you say that that was a false statement given that you had previously made applications to work elsewhere in the world?

6. A1.6 Ms O'Rourke criticised Mr Somerville in this passage for use of legal language and for accusing Dr Banerjee of lying.
7. A1.7 My assessment is that there is no merit in these criticisms. Dr Banerjee was describing a formal process involving an application for erasure from the register. She is an educated and intelligent woman, who not only has tertiary qualifications but also has begun postgraduate study. There was nothing wrong with using the words "undertaking", "representation" and "assertion" in this context. As to the question whether Dr Banerjee was lying, Mr Somerville's initial questioning arose from Dr Banerjee's answer to Mrs Staveley's second question. As Mr Somerville said, what he wanted to do was "just take that a bit further".
8. A1.8 This is hardly surprising. Dr Banerjee's second answer at [1/61/3], like her first answer, and what she had said during the course of her examination in chief, suggested that at the time she was applying for voluntary erasure, she was in fact intending to practise medicine abroad. Moreover, Dr Banerjee gave the impression that she thought she was justified in looking for work overseas at the same time as applying for voluntary erasure because the MPS had advised her to do so. It is clear from Mr Somerville's question at [1/61/8] that he knew that an application for voluntary erasure involved stating to the GMC that the applicant no longer wished to practise medicine. What Dr Banerjee had said must have set alarm bells ringing. To my mind it is to Mr Somerville's credit that he did not beat about the bush. He was concerned that Dr Banerjee's own account of events seemed to involve a false statement to the GMC that she did not wish to practise medicine either in the UK or elsewhere.
9. A1.9 At an early stage in her submissions Ms O'Rourke appeared to suggest that Mr Somerville, as a barrister, must have known that this matter was not raised by Ms Woodward in cross examination because there had been an agreement not to do so. Later, however, Ms O'Rourke said that this and other similar criticisms of Mr Somerville were not intended to be assertions about Mr Somerville's actual state of mind, but instead were concerned with what a reasonable observer might believe to be the case. Moreover, Ms O'Rourke accepted in her oral submissions that the voluntary erasure and change of mind topic was not "off limits". Eventually, as I understood it, she conceded that prior to the "closed matters" discussion there was no basis for suggesting that any member of the panel could be expected to have realised that there had been an agreement on this matter between the two sides.
10. A1.10 Dr Banerjee's answer to the last question in example 1 resulted in a further exchange which included matters that Ms O'Rourke criticises. I shall refer to that answer, along with the three next questions and answers, as example 2:

[1/62/1] A Well not really in the sense that obviously in making an application overseas it is not a hidden matter, it is something discussed with the GMC, the GMC is fully aware of it. So they knew that I was applying for voluntary erasure but they had already known that I had asked for them to send a Certificate of Good Standing and disclose all the matters.

[1/62/2] Q But my question was, you told the GMC that you did not wish to pursue a career in medicine. Am I correct in that? That is what you stated to the GMC?

[1/62/3] A In June of 2011. My request for a Certificate of Good Standing was in, I think, February. So it was some months before my application. It was not exactly in the same period of time. I asked for a Certificate of Good Standing to be sent to another country in February, and I applied for voluntary erasure in June. So they did not happen at the same period of time.

[1/62/4] Q No, quite. The undertaking that you gave to the GMC in June was that you had no desire to continue practising medicine. But that was not the truth, was it?

[1/62/5] A Well, it was in June, because I had expressed a wish to continue -- well, I expressed an interest to keep options open in February, which is some months before June, so it was honest and correct at the time.

[1/62/6] Q I am struggling how it can be honest and correct in June to say, "I do not wish to pursue a career in medicine" when that was not your intention at all.

[1/62/7] A It was my intention in June. I expressed an interest for a Certificate of Good Standing to be sent in February. Some months later I have submitted an application for voluntary erasure.

11. A1.11 Ms O'Rourke criticised Mr Somerville in this passage for the same reasons as in relation to example 1: use of legal language, and an accusation of lying. She added that Mr Somerville's questions would lead an observer to think that he was a prosecutor.
12. A1.12 As to use of legal language, Mr Somerville again uses the word "undertaking". For the reasons given in relation to example 1, the criticism in this regard is nonsense. As to accusing Dr Banerjee of lying, Ms Callaghan rightly pointed out that the exchange needs to be read in the light of what Dr Banerjee said at [1/61/1] and [1/62/3]. Without the benefit of documents, a listener could easily gain the impression that Dr Banerjee in June was expecting the GMC to have in mind the fact that she had asked for a certificate of good standing to be sent to another country in February. Mr Somerville was right to probe the point, and to make clear that on his understanding Dr Banerjee would not have been telling the truth to the GMC. Her immediate answer began to provide an explanation in the final words "so it was honest and correct at the time". Mr Somerville said, to all appearances perfectly frankly, that he was "struggling how it can be honest and correct in June…". This produced a clearer account from Dr Banerjee. The position now described by Dr Banerjee was not, as Mr Somerville had thought, that Dr Banerjee retained an intention to work abroad when she applied for voluntary erasure, and expected the GMC to be aware of this because of the request for a certificate of good standing. What now became clear was that she was explaining that whereas she had asked for a certificate of good standing to be sent in February, it was her intention not to pursue a career in medicine at all when she applied for voluntary erasure in June. I do not accept that Mr Somerville's questions were those of a prosecutor: taken as a whole, in example 2, he was seeking clarification: "I am struggling how it can be honest…".
13. A1.13 Further questions and answers led to what I shall call "example 3":

[1/65/5] Q Okay. I think you have said that you have acted as a doctor on four occasions since. Is that right?

[1/65/6] A That is right, yes.

[1/65/7] Q Am I right in thinking that that only totals four months in total. Is that right?

[1/65/8] A I do not know if it is precisely four months, I think it may be something more than that. No, I think it is something more than that, because I worked for two months in December, so it is more than that because I worked for two months in December, I worked for one month before that, then I worked for around two months in 2011 and then again this reference on page 47, so it is more than that.

[1/65/9] Q Turning to the ethics courses. Can I just understand why the courses, the modules which are at pages 14, 15 and 16, can I understand why they were all dated the same date? Were they sequential, you took one module and then --

[1/65/10] A Yes, you have to do one and then you have to go on to the other having completed one.

[1/65/11] Q So why are they all the same date?

[1/65/12] A Well, because that is when, if you complete them in sequence, then you are issued the certificate on the day that you complete them.

[1/65/13] Q All of them? i.e. you do not get any certificates until right to the end and then you get the certificates for all of them?

[1/65/14] A Yes.

[1/66/1] Q They are only into research ethics and so on. Is that right?

[1/66/2] A Yes, there is a very clear certificate which, I do not know, Mr Rowley, the Norwegian Medical Association's Fundamentals of Medical Ethics, which is again in the previous hearing and the Panel does refer to the fact that I have completed an ethics course on the fundamentals of medical ethics for the last hearing. Again I have to draw attention to that certificate, it is in the previous bundle.

14. A1.14 Ms O'Rourke criticised Mr Somerville in this passage for cross examining and point scoring. She singled out Mr Somerville's response at [1/65/13] to the answer given by Dr Banerjee at [1/65/12]: what, she asked rhetorically, was wrong with the answer at [1/65/12]?
15. A1.15 My assessment is that this criticism is misconceived. What Dr Banerjee had said at [1/65/12] was that "if you complete them in sequence, then you are issued the certificate on the day you complete them." Taken literally, her answer would not explain why they are all the same date: the logic of her answer would suggest that the certificates were issued sequentially, as each module was completed. What Mr Somerville was doing at [1/65/13] was seeking clarification: what Dr Banerjee meant was that the certificates were issued on the day that all the modules had been completed.
16. A1.16 Further questions and answers led to what I shall call "example 4":

[1/66/5] MR SOMERVILLE: Page 17, thank you. No, it is not 17, let me see if I can find it. Page 25 is similar, it gets my same point across actually, on page 25.

[1/66/6] A This is not the right one. Again there is a particular course called Fundamentals of Medical Ethics and the previous Panel have referenced that.

[1/66/7] Q My question, and I think I do understand your answer, page 25 if we could just turn to it. I understand that these are the ones that you have just made reference to and these ones, they are all about ethics, I understand that. But when we look on page 25, the nature of the content of the module, it does not really relate to honesty or probity, it is more about the ethics of consent and insurance reports and whistle blowing. I was just wondering how you felt that the collection of ethics study that you have done demonstrates probity?

[1/66/8] A Well firstly, I would have to still refer to that Norwegian one and ask please that you do see that one because that is specifically for medical doctors, so the Norwegian Medical Association certificate which the previous Panel have seen and they have also made reference to in their conclusions, that is specifically for doctors. In relation to this, obviously medicolegal aspects entirely is depending on probity because you have to be honest, it does go into probity. Also in terms of certification of death, there is honesty in relation to the certification process that you go through. So I do not agree with you, firstly in terms of consent that is all about probity in terms of explaining the full repercussions to a patient of any procedure, what could happen and certainly in relation to medicolegal report writing, there is absolutely integrity in those as well. So in fact all of them do cover, maybe they are not directly called probity, but they all do cover probity.

[1/66/9] Q This particular certificate at page 25, or the certificate is the page before it, it is just one or two hours. Is that right?

[1/66/10] A Yes, that is the length of the course, yes. …

17. A1.17 Ms O'Rourke criticised Mr Somerville in this passage for using the words "my point", which suggested he had become an advocate. I simply do not understand this criticism. Mr Somerville had raised a point at [1/66/1] (see example 3) that the courses for which Dr Banerjee had produced certificates were on the ethics of research and the like. It was perfectly natural, when commenting on further certificates which he is shown, for Mr Somerville to say how they fitted in with the point that he had raised.
18. A1.18 Ms Callaghan commented that this passage, about the nature of the courses on ethics, could be characterised as involving at [1/66/7] "a tough question, but a fair one". Ms O'Rourke in reply said that this passage justified Mr Rowley's description of "cross examination the like of which I never previously encountered". I do not agree. An important question for the panel was whether the type of course which Dr Banerjee had undertaken in relation to ethics was one which would assist her in coping with the type of ethical problem which had arisen in the course of her professional working relationships with others at the Royal Berkshire Hospital. Mr Somerville's concern was that the courses in question did not address this, and it was entirely fair of him to give Dr Banerjee the opportunity to explain ways in which they did.
19. A1.19 Ms O'Rourke complained about a subsequent question concerning how long a particular course had lasted. What happened was that Mr Somerville noted that the certificate was for a course lasting just one or two hours. He asked Dr Banerjee whether that was right, and she confirmed that it was. This was said by Ms O'Rourke to be cross examination which was trying to undermine Dr Banerjee. This is unwarranted. It was a question asking about the length of a particular course.
20. A1.20 Further questions and answers led to what I shall call "example 5":

[1/67/3] Q Can you tell me why you left the Citizens Advice Bureau?

[1/67/4] A Well, I think looking at the dates, shortly after that I went to work for the Leprosy Mission. That is a volunteer's position as a receptionist, it depends on how long they need you for. They have a constant stream of volunteers, so that is more up to them than it is up to me.

21. A1.21 Ms O'Rourke criticised Mr Somerville in this passage for lacking relevance and amounting to "digging". It seems to me that this criticism ignores the context: it was, as Dr Banerjee pointed out, after leaving the Citizens Advice Bureau that Dr Banerjee resumed the practise of medicine. In that context, it was perfectly reasonable to ask her to explain more about why she had left the Citizens Advice Bureau.
22. A1.22 Further questions and answers led to what I shall call "example 6":

[1/67/9] Q Okay. I think I have nearly finished. Can we go back to the decision you made about voluntary erasure?

[1/67/10] A Yes.

[1/67/11] Q Am I right in thinking that the issues with Dr Pritchard -- do you remember exactly when you started with Dr Pritchard again, could you just help me with the date?

[1/67/12] A Well, I started in August in that hospital, so it is a four-monthly rotation, so it would have been December/January time.

[1/67/13] Q Of '11?

[1/67/14] A 2011/12.

[1/67/15] Q So you started with her in either December or January and then I think you said, were you only actually working with her for about two weeks. Is that right?

[1/67/16] A No, no, the induction period was for about two weeks, so the beginning of that job and I only did half.

[1/68/1] Q So there was one week. So you worked with her one actual week. And how long were you then working with her when she was making the 360 degree feedback that you felt was unfair to you?

[1/68/2] A Well, I started the job with her, I only did one week of induction, I was on leave for the next week as I went on a course. And my understanding was, and I do not have it in front of me, but possibly the week after that she did her 360 degree form. So I was working with her for no more than about a week or so because that is her own personal 360, that is not part of the curriculum.

[1/68/3] Q So you effectively only gave it a couple of weeks, on your case, of a bad working environment with her, before you felt the need to think about voluntary erasure. Is that right? You based your decision to ask for voluntary erasure on about a two-week episode with her. Is that right?

[1/68/4] MR ROWLEY: I think there might be a misunderstanding.

[1/68/5] MR SOMERVILLE: Okay, please help, please help.

[1/68/6] MR ROWLEY: I think the chronology, I think the evidence has been, and it is reflected in the examination, it was 23 May 2011 when Dr Banerjee was dismissed from the Royal Berkshire Hospital and it was at that point she has been saying that she turned to voluntary erasure and then also at the time of the Interim Orders Panel on 11 June two thousand and --

[1/68/7] MR SOMERVILLE: But the events that caused you to feel like that were only about a two-week duration. Is that right or have I misunderstood it?

[1/68/8] A I said I was under personal pressure, obviously my personal circumstances in relation to my father were happening in that period of time and it was more than two weeks and in relation to Dr Pritchard it is as a result of what happened in the surgical posting with the absence of the locum for five weeks that led to the problems with her in her post.

[1/68/9] Q You have told us how hard you fought to become a doctor, the time that you spent, six years doing jobs to try and save up. I am just trying to reconcile why you would give all of that up over effectively two weeks of problems with Dr Pritchard and I am also struggling to understand the link between your father being poorly and why you would want to give up being a doctor.

[1/68/10] A Well, I do not think the period of two weeks, it started in August of the following year when two weeks into the job I was put into the position of arranging locum cover for five weeks. So, the tensions may have sort of erupted in January of the following year, but they had been going on for the previous six months. Obviously I had never had to ask for a change of supervisor before, so I do not think the tensions just began in January, I think they began some months before then with Mr Farouk.

[1/69/1] Q But why leave being a doctor? Why not go and quit where you are, take some time, go to a different hospital, go and do something else? Why quit as a doctor? Why ask the GMC to erase you?

[1/69/2] A As I said before, I do not think that what I did at the time was -- it was by no means any attempt to be dishonest and I think that is exactly what the previous Panel have –

[1/69/3] Q So what was the motivation then?

23. A1.23 Ms O'Rourke criticised Mr Somerville in this passage for cross examining, trying to minimise Dr Banerjee's evidence and trying to undermine her. By way of example, Ms O'Rourke drew attention to Dr Banerjee's answer at [1/69/2], saying that Mr Somerville had cut her off at [1/69/3]. Ms O'Rourke described this as involving the tactics of a cross examiner. I disagree. Mr Somerville was concerned about yet another puzzling feature of the history of events described by Dr Banerjee, or at least what Mr Somerville perceived to be a puzzling feature: that as he understood it the period that she had spent in a bad working environment with Dr Pritchard involved about two weeks. Dr Banerjee's answer at [1/69/2] was missing the point. On the face of the transcript it appears perfectly sensible for Mr Somerville to step in and bring Dr Banerjee back to deal with his question, rather than allow her to evade it.
24. A1.24 Dr Banerjee's answer led to what I shall call "example 7":

[1/69/5] Q Well today, afresh before us, because we have not heard what was said before the other Panel, but today you said to us that you had no intention to avoid the investigation --

[1/69/6] A That is right.

[1/69/7] Q -- and I am just trying to assess the credibility of the assertion that you have made before us.

25. A1.25 Ms O'Rourke criticised Mr Somerville in this passage for "clear cross-examination and putting a case". I do not accept this criticism. For the reasons given in section E of the main judgment, 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 was entirely fair of Mr Somerville to do this.
26. A1.26 Further questions and answers led to what I shall call "example 8"

[1/70/3] Q I think I have just got one more question. When you came to the GMC for your last application, today you have described the fact that you were under huge financial pressure at the time. Is that right?

[1/70/4] A Yes.

[1/70/5] Q Then I think you did some work after that hearing at the CAB. Is that right?

[1/70/6] A Yes.

[1/70/7] Q Can I just understand how you have funded your Master's?

[1/70/8] A I paid for the fees when I was earning money, the registration period is for five years. I paid for it in 2009 and, therefore, the fees were paid upfront for five years.

[1/70/9] Q Sorry, so you paid the fees for the MSc in 2009?

[1/70/10] A In 2009 to 2010 academic year and you have a registration period for initially five years which you can then extend if you have not completed it all.

[1/70/11] Q Can you help me with when you did the studying for your MSc? Did you do any studying prior to 2013?

[1/70/12] A Well, obviously the academic year starts in 2012, so that whole year I was studying and I have been this year when completing the exams. So the registration period will probably run out next year or I can extend it if I wish to.

[1/70/13] Q So you paid in full in 2009 and then did nothing until 2012. Is that right?

[1/70/14] A Well, obviously at the time (2009/2010) I was working and my primary intention was to complete my MRCP because that is what you need to do for core training, so my plan was to finish that first and then to complete the MSc after that, and that is why I went to the PasTest in the neonatal period. But obviously if you are off the register you cannot sit for MRCP exams. So my initial plan, I could not effect it. So then I moved to the MSc because I was not able to do the MRCP when I wanted.

27. A1.27 Ms O'Rourke criticised Mr Somerville in this passage for asking about funding, which was irrelevant, and clearly attempting to undermine Dr Banerjee. He was, she submitted, apparently seeing if he could find something adverse to her. I disagree, Dr Banerjee had described being under huge financial pressure at the time. It was entirely fair to ask her for details in relation to that financial pressure.
28. A1.28 Mr Somerville then asked three questions concerning the MRCP. Dr Banerjee explained that as she was not on the register she had diverted her focus to her studies for an MSc. Mr Somerville asked whether she had to pay any new funds for her MSc, and Dr Banerjee replied that she had already paid the fees upfront. At this point Mr Somerville finished his questioning.

A1C: The chairman's questions

29. A1.29 The chairman asked Dr Banerjee whether she was happy to have some further questions, because he had some further questions for her. She replied that she was. The chairman's initial questions were about the MSc. He then asked her when she had registered with the Maldives Medical Council. Dr Banerjee replied that she thought it had been around September 2011. She confirmed that this was after the GMC had agreed to her voluntary erasure from the register. There was then a lengthy passage which I shall call "example 9":

[1/72/10] Q Now, what do you understand by the term voluntary erasure?

[1/72/11] A Well, when you apply to have your name taken off the Register subject to the approval of the regulator.

[1/72/12] Q Right, and had you read the GMC document "Guidance on making decisions on voluntary erasure"?

[1/72/13] A Yes, I have sir, yes.

[1/72/14] Q Because in this document it says:

"… if decision makers believe that a doctor intends to practice in the UK or elsewhere in the future it will not be appropriate to grant [voluntary erasure]."

[1/72/15] A Well, sir, I think it is going back to my initial point and the accusation that I somehow made an attempt to subvert anything. This is really completely and utterly incorrect, because you cannot subvert the process in the first place because the regulators all communicate with each other, and when I decided to take voluntary erasure some months before that – not at the same time, it was months before that – I did discuss with the GMC whether I could apply to a different regulator which was up to the GMC to decide whether they gave the Certificate of Good Standing or not.

[1/72/16] Q Did you notify or update the Maldives Medical Council about your status with the GMC?

[1/72/17] A Of course, sir, the application forms that I submitted for registration in the previous bundle of documents and I sent a copy of the registration certificate with the GMC, I declared my full history, registration and everything with the GMC.

[1/73/1] Q So Maldives Council knew that you were not on the GMC Register?

[1/73/2] A Yes sir, yes.

[1/73/3] Q But they nonetheless registered you?

[1/73/4] A Yes, sir, because the GMC has reciprocal agreements only with a small number of regulatory bodies around the world. I did not know that, I thought that they all had reciprocal agreements with each other, but not all of the regulatory bodies take notice of each other's decisions.

[1/73/5] Q So when did you discover that?

[1/73/6] A Only after applying. I assumed that they would already know the matters because the GMC does send, every month, a decision circular to every regulator by e-mail concerning doctors who in that month have been suspended, erased, et cetera, so that information is already sent to regulatory bodies. They send an e-mail to, I think, 300 regulators informing them of their decision. In my case I have never tried to subvert a process, I have always declared my history very openly with all regulators, and I did not wait to be prompted and I have done that anyway. On top of that, even if a doctor were not to do that, there are two ways that the information will be sent to other regulators anyway, so this whole idea that someone can go abroad and escape here is absolute nonsense, you cannot do that even if you want to do it.

[1/73/7] Q But in terms of what these guidelines say, is that not what has happened here? There is a regulatory body here, you say you declared to this regulatory body, you do not wish to continue to practise medicine?

[1/73/8] A Yes.

[1/73/9] Q You then apply somewhere else to go and practise medicine?

[1/73/10] A Yes, but that was some months afterwards, that was not at the same period time.

[1/73/11] Q But it is the same period of time, because you are still voluntary erased, it was within the period of your voluntary erasure with the GMC.

[1/73/12] A Sir, I applied for registration in September, and I got voluntary erasure in May to June, so it is not in the same period of time, it is three months later.

[1/73/13] Q Yes, voluntary erasure did not stop in September, as far as I am aware. When you were applying for the Maldives Medical Council, you were voluntary erased from the GMC Register and you still are today?

[1/73/14] A Yes.

[1/73/15] Q So it is still within the period of voluntary erasure.

[1/73/16] A Yes, but then that depends on whether somebody applies for restoration or not, does it not?

[1/73/17] Q So you think that applying for restoration exempts you from the voluntary erasure?

[1/74/1] A I think, sir, that we are all -- you know, I was not under a normal circumstance in my life, there were various additional pressures that I was under and I have explained those already and I have also stated that in terms of my applications or interest to apply overseas that was fully disclosed and discussed with the GMC. They knew that when they granted my application for voluntary erasure, that I had requested a Certificate of Good Standing to go to Australia. They could have said at that point --

[1/74/2] Q I understand that you submitted a Certificate of Good Standing to Australia, as I understand it you have never pursued the Australia bit further, or you may have but I have not been given further information. What I do understand is that you have accepted voluntary erasure and that is your status today.

[1/74/3] A Yes.

[1/74/4] Q You are not registered as a medical practitioner in the UK. Is that the situation?

[1/74/5] A That is right sir, yes.

[1/74/6] Q That is the situation, right. And as part of that you are aware that the document says:

"… if the decision makers believe that a doctor intends to practise in the UK or elsewhere in the future it will not be appropriate to grant [voluntary erasure]."

Therefore when the decision was made to accept your application for voluntary erasure, that decision was made on the understanding that you were not intending to practise elsewhere. That is what the GMC decided.

[1/74/7] A The GMC took their decision in light of the fact that they had already issued a certificate to a foreign regulator in February so they knew of an intention already to practise overseas.

[1/74/8] Q But they presumably thought that the decision for voluntary erasure superseded the letter from February because it came afterwards?

[1/74/9] A Well, sir, I leave that up to their judgment. As I said at the beginning, looking at the guidelines, it said that it was only granted very exceptionally, so I did not even think I was going to be granted voluntary erasure because I knew I had this outstanding fitness to practise issue. My confidence that the voluntary erasure was going to be granted at all was not high at all. I fully expected that I would be rejected and I would have to go to the fitness to practise anyway. Sir, I had no confidence at all, and nor could I have possibly have known the outcome of my application for voluntary erasure.

[1/74/10] Q You got notified of voluntary erasure in June.

[1/74/11] A Yes, sir, yes.

[1/75/1] Q So by September you were voluntary erased?

[1/75/2] A Yes sir, yes.

[1/75/3] Q So you were voluntary erased which means that the GMC understood the section I have just read out to you, as far as the GMC was concerned you had no intention to practise in the UK or elsewhere. From June to September the GMC was under the impression that you had no intention to practise.

[1/75/4] A Yes, sir, yes.

[1/75/5] Q Correct. In September you then applied to the Maldives Medical Council?

[1/75/6] A Yes, sir, yes.

[1/75/7] Q Okay. Does that contradict what you have told the GMC in June?

[1/75/8] A I think it is a change of mind, sir, but it is not driven by any dishonest interest, it is a change of mind which has been honestly declared to the regulators in every country.

[1/75/9] Q Was it declared to the GMC that you were applying to the Maldives Medical Council.

[1/75/10] A Well my understanding was that they had already sent a Certificate of Good Standing or a disclosure notification in any case, sir.

[1/75/11] Q To the Maldives Medical Council?

[1/75/12] A Well, the disclosure notification goes to every regulatory body, sir.

[1/75/13] Q The Certificate of Good Standing, had this been sent to the Maldives Medical Council?

[1/75/14] A I had not --

[1/75/15] Q You told us it had been sent to the Australian one.

[1/75/16] A Yes, sir.

[1/75/17] Q Had it been sent to the Maldives one?

[1/75/18] A I personally did not request one, sir, but I --

[1/75/19] Q So you did not request?

[1/75/20] A I did not, sir, but someone else may have requested it, I do not know, the employer can request it.

[1/75/21] Q So you did not disclose to the Maldives Medical Council that you were in a status of voluntary erasure?

[1/75/22] A Sir, I did. As I said, I applied for registration and I filled in the forms of that regulator when I applied for registration. Obviously I have to detail my registration history in other countries, which is exactly what I did. So they knew that I was not registered in the UK, I even sent my certificate of registration which had expired. They knew my registration history, sir, there was no attempt to hide any of that.

30. A1.30 Ms O'Rourke criticised the chairman in this passage for asking about voluntary erasure when that was not an issue in the case, going over ground that had already been covered, and going beyond seeking mere clarification. She submitted that the question at [1/72/10] was setting up Dr Banerjee for cross examination, in which he would put his thesis. The question at [1/73/7] was said to involve putting a case, advancing it "in authoritative tones to someone who is wondering why this is being asked". It was said that he ignored Dr Banerjee's evidence about a change of mind.
31. A1.31 These criticisms, in my view, pay no regard to the context. A change of mind so soon after the acceptance of the application for voluntary erasure is a surprising feature. The chairman asked questions about it. When he did so, Dr Banerjee's answer at [1/74/1] was bound to cause concern. She had returned to what had appeared to be being said earlier, that at the time of accepting her voluntary erasure application the GMC should have appreciated from her earlier request for a certificate of good standing that she intended to work in Australia. In these circumstances the chairman cannot be criticised for wanting to know more about the voluntary erasure application and the change of mind.
32. A1.32 The chairman then asked questions concerning supervision and appraisal when Dr Banerjee was working abroad. She referred to there being relevant documents in this regard.

A1D: The panel disadvantage exchange

33. A1.33 Dr Banerjee's reference to there being relevant documents led to an intervention by Mr Rowley. I shall refer to the exchange which then occurred as "the panel disadvantage exchange":

[1/76/9] MR ROWLEY: Sir, I wonder if, at this juncture, it might just be of benefit that exhibit D2 from the Panel hearing last year, a short document and I am sure it will not take me very long --

[1/76/10] THE CHAIR: Well thank you very much, yes. We are going to get some of the documents.

[1/76/11] MR ROWLEY: Exhibit D2.

[1/76/12] MS WOODWARD: Would you like, sir, for me to hand it up now?

[1/77/1] MR ROWLEY: It would help the questions.

[1/77/2] THE CHAIR: Well, I mean it is a bit ridiculous now actually because we are coming to the end of questions. To my mind it is a bit ridiculous at this point to be handing out a document. The witness has said that she wants certain documents to be disclosed, fine, we will leave it at that, but I do feel it is a bit ridiculous that we have spent nearly three hours discussing documents which the Panel have not seen and is therefore at a disadvantage and may be asking questions that are irrelevant. Anyway, we are where we are.

A1E: Further questions from the chairman

34. A1.34 The remainder of the chairman's questions were the subject of criticism by Ms O'Rourke. I shall refer to his questions and Dr Banerjee's answers as "example 10":

[1/77/2] My other question actually relates back to the beginning of your period of time. You said you had spent two years at Oxford.

[1/77/3] A Yes.

[1/77/4] Q The normal length of the pre-clinical course in Oxford is a little longer than that, is it not?

[1/77/5] A I did not complete that final year, sir, because I had financial -- I completed the pre-clinical, the BM part of the course, and then I did not continue.

[1/77/6] Q So you only did two years?

[1/77/7] A Well, I did the pre-clinical studies, the BM, what is called the Bachelor of Medicine.

[1/77/8] Q If you were to apply to the medical school in the UK following those two years, which medical school, what kind of application would one make after doing two years of the course at Oxford?

[1/77/9] A Well, I mean obviously it depends if someone has completed all of the exams and passed all of the exams well, then I think -- sir, your question?

[1/77/10] Q Where you would go if you had completed two years at Oxford? Where would you go to medical school in the UK?

[1/77/11] A I think well firstly you continue and finish off the three years and then after that apply to, I think, various places people go to. I am not sure where people -- I think some people stay, some people go to other regional medical schools.

[1/77/12] Q Because, as I understand it, you have only done four and a half years medical education?

[1/77/13] A Sir, I have completed --

[1/77/14] Q Undergraduate education.

[1/77/15] A I have completed five years, I think that is quite clear. I completed two years at Oxford, I then completed three years of clinical studies.

[1/77/16] Q Because what you told us was you had two years in Malaysia.

[1/77/17] A No sir. Sir, I spent two and a half years in Malaysia and six months in India.

[1/78/1] Q During the course of that period of time, was there any education at all about ethics or about things like Good Medical Practice?

[1/78/2] A In Malaysia, sir?

[1/78/3] Q In Malaysia?

[1/78/4] A Yes of course, yes.

[1/78/5] Q So you were familiar with GMC guidelines as part of your undergraduate education?

[1/78/6] A GMC guidelines? No sir, because obviously they would not be considering an overseas regulator's documents.

[1/78/7] Q So are there equivalent documents in Malaysia or India?

[1/78/8] A Sir, I do not specifically recall that we had lectures on ethics as such. I do not think so, sir, no. I think it is just incorporated as a general stance that should be adopted by all doctors but there was no specific training in courses and things like that.

[1/78/9] Q Maybe you can help me, what about language skills?

[1/78/10] A I had to do the IELTS when I came back.

[1/78/11] Q Yes, but what about language skills during your training?

[1/78/12] A Oh sir, the --

[1/78/13] Q What language was the education conducted in?

[1/78/14] A It is done entirely in English and if there was any patient who could not speak English then there were translators there.

[1/78/15] Q Right, fine. And then one other question: you have commented or did comment extensively on Dr Pritchard, or the neonatal unit and Dr Pritchard specifically. Were there any other doctors, consultants, colleagues on the neonatal unit with whom you had close contact?

[1/78/16] A Mostly her, because I was under her, so her registrars and SHOs, et cetera. Mostly because she was my supervisor, sir. There are various team that work but obviously I did weekends with other consultants sometimes, once I recall. But she was my main point of contact.

[1/78/17] Q So she was on 24-hour service?

[1/78/18] A No, sir. She was my primary supervisor but if I was on call or something else like that then it would be under whichever consultant was on that particular day. But obviously I did not necessarily see that consultant because they were not necessarily there, their registrar might be there.

[1/78/19] Q Again, in the previous bundle, was there any documentation from any of those colleagues at all about your work?

[1/79/1] A There was a reference by a different consultant, a Dr de Halpert, and he expresses the fact that I did all the skills and I was a safe doctor and so he personally had no problem with any of the aspects of safety regarding patients, a different consultant, when I worked a long weekend with him.

35. A1.35 Ms O'Rourke criticised the chairman in this passage for asking questions with no apparent significance to current impairment or to past dishonesty over the e-portfolio. I disagree. The first part of this passage concerned Dr Banerjee's studies prior to starting the Foundation Programme, and in particular Dr Banerjee's education on ethics. The second concerned the support available to Dr Banerjee at the Royal Berkshire Hospital. Both these topics had the potential to assist the panel to understand how it was that Dr Banerjee came to her decision to falsify the e-portfolio records.

A1F: Production of C2 and C3, and D2, D3 and D4

36. A1.36 The chairman then asked whether any members of the panel had any further questions. This led to an exchange which I shall refer to as "example 11":

[1/79/3] MR SOMERVILLE: The only thing I would ask is to request a copy of the representations that were made by Dr Banerjee to the GMC at the time of the application for voluntary erasure. I presume it is in that big bundle.

[1/79/4] MS WOODWARD: Sir, in fact, I was going to ask the Panel to consider that documentation because I am concerned that Dr Banerjee may have misled – and I am not suggesting it was deliberate or not, that is a matter for the Panel – the Panel, in terms of the GMC's understanding at the time that the application for voluntary erasure was granted. But I have located two e-mails, one to Dr Banerjee specifically --

37. A1.37 Ms O'Rourke criticised Mr Somerville in this passage for wanting to see the representations made by Dr Banerjee at the time of the voluntary erasure application. The criticism was that he wanted to see her representations, not just the application, because he was seeking to undermine Dr Banerjee. This is an astonishing criticism. The return by Dr Banerjee at [1/74/1] to what she had appeared to be saying earlier inevitably revived concerns that Dr Banerjee at the very least had no insight into the possibility that she may have been misleading the GMC. Seeing the representations could be expected to enable the panel to know whether they needed to be worried on this score or not. Moreover, as can be seen from [1/79/4], by this time Ms Woodward had concluded that the panel needed to see the documentation.
38. A1.38 At this point there were exchanges which I shall call "example 12":

[1/79/5] THE CHAIR: Again, please can we see the document and have the document available to us?

[1/79/6] MS WOODWARD: Of course, sir, the reason I describe them was for two reasons: one, because I need to apply to introduce these documents, so I thought an explanation as to what they were would be useful. But also because I would not want it to be suggested that I have been selective, so if I identify them and, perhaps, sir, the best way around --

[1/79/7] THE CHAIR: The best way forward, I would suggest, is that we are about to have an adjournment and during this adjournment I would like you and Mr Rowley to get together and work out which documents you feel between the two of you that we actually need. In which case, we cannot release Dr Banerjee because there may be questions arising from some of the documents we see. So I am sorry, you are going to have to remain under oath for another half an hour or so.

[1/79/8] THE WITNESS: All right, sir, because there are things I need to discuss with Mr Rowley.

39. A1.39 As I understood it Ms O'Rourke criticised the chairman in this regard in the same way as she criticised Mr Somerville. I reject the criticism for the reasons given in relation to example 11.
40. A1.40 There was then a short adjournment. When the hearing resumed additional documents were produced. Among them were two clips of material which included copies of emails sent by Dr Banerjee. These two clips were marked "C2" and "C3". Other documents were produced by Mr Rowley. They were marked "D2", "D3" and "D4".

A1G: Mr Somerville's further questions

41. A1.41 Further questions and answers led to what I shall call "example 13":

[1/82/8] MR SOMERVILLE: Dr Banerjee, I have read C2 and I was just wondering if we could revisit the question which I asked earlier now with this precise clarification in front of us. Do you have a copy of that? C2, in the top it is:

"N Banerjee sent from my iPhone on 8 June 2011."

[1/82/9] A Yes.

[1/82/10] Q So halfway down the page there is an e-mail from you, I believe, to Rachel Morris.

[1/82/11] A Yes.

[1/82/12] Q The second sentence says:

"I expect to be living in a different country and pursuing an alternative profession."

Then over the page another e-mail from yourself, about two or three weeks prior, saying you have taken a decision not to pursue a career in medicine and if we now turn to C3, which is the one with the big cross through the middle, over the page on 182:

"I confirm I will not be pursuing medicine as a career."

A couple of sentences on:

"I have stated I would be pursuing business with a relative."

I would just like to repeat my question from earlier and be clear in my mind, why you say that they are true and honest statements when you were already considering applying to be registered and to practise medicine elsewhere?

[1/83/1] A Well, firstly, I have already declared in the e-mail which is 182 in big letters at the bottom about my overseas experience, so I have declared that fully anyway.

[1/83/2] Q Sorry, can you just point to me. On page 182?

[1/83/3] A Yes, it says about the Certificate of Good Standing, so I really do not see how I have not declared that and I have also said it is no longer valid because they only last for three months. I do not see how it is not an honest and --

[1/83/4] Q Okay, let me clarify the question then. On 14 July 2011, were you considering practising medicine elsewhere?

[1/83/5] A No, I was not, no.

[1/83/6] Q Okay, bear with me for a moment. So when do you say you applied to the role in New Zealand?

[1/83/7] A I did not apply to a role, I have already said --

[1/83/8] Q Sorry, to apply to the register or to apply for --

[1/83/9] A To the exams. I cannot precisely remember, because I know the exam does not lead to registration, the exam just leads to you passing the exam, you have to apply for registration after that, so I cannot remember but it was in the beginning of that year. But that is not the same as registration and there is a distinct difference.

[1/83/10] Q If I could just ask for a clear answer to my question: when did you apply to study the exam in New Zealand?

[1/83/11] A I cannot precisely remember the month. It was I think the first half of the year, but it was in that section of time.

[1/83/12] Q You see, we have got in May and June and July you are stating that you do not want to pursue medicine. Are there any documents in the big bundle or elsewhere that can assist us with the New Zealand question? Does anybody know?

[1/83/13] A I mean there is an e-mail with MPS where they have said just to keep options open, but I do not think that specifically alludes to New Zealand.

[1/83/14] Q Do you remember when the MPS e-mail is?

[1/83/15] A I cannot quite remember. To be perfectly honest I am having some difficulty in understanding this whole sort of questioning because this was considered by the previous Panel --

[1/83/16] Q Let me clarify why I am asking the question then. We have to decide today the credibility of the evidence that you have given us.

[1/83/17] A Yes.

[1/84/1] Q And you make a number of assertions today about your regrets and about what has happened and why it happened and the Panel will need to assess the credibility of those assertions that you make. Therefore we need to be clear about the evidence that you give today. So you have given evidence today that you had no intention to avoid the fitness to practise investigation. You say that the reason that you applied for VE was an emotional decision and you were not thinking straight and so on. So for us, today, we have to decide how credible you are as a witness. So it is very relevant that we find out and we try and cross-reference your assertion with evidence that either supports or contradicts those assertions that you make today. So that is the relevance. So perhaps you may not see the relevance, but I think unless the Legal Assessor or anybody else would like to say that my questions are inappropriate – in which case I will be quite happy to stop asking them – I think they are relevant and I would be grateful if you could answer my questions.

[1/84/2] A Well, can I just, before I answer, I am perfectly happy to answer your questions, and I can understand why you are asking them. Whatever you are asking me now, and this is what I expressed to the Legal Assessor, it does say very clearly in the previous judgment:

"Whilst the Panel has noted the sequence of events --

42. A1.42 Ms O'Rourke criticised Mr Somerville in this passage for being an inquisitor putting his case, for trying to trap Dr Banerjee into saying that she intended to apply to qualify in New Zealand when telling the GMC that she did not intend to practice, for not letting Dr Banerjee finish or explain, and for talking like a layer when referring to "credibility" and "assertions".
43. A1.43 As to Mr Somerville being an inquisitor putting a case, it seems to me that he was perfectly frank about what was troubling him. Moreover he said he would stop if anyone would like to say his questions were inappropriate. This is hardly the language of an inquisitor. Again Dr Banerjee's response to questions was evasive. An observer might well wonder why, when asked about the date of her application to do what was needed to qualify in New Zealand, her immediate response was to draw a distinction between passing the necessary exams and formal registration. Apart from accepting a point made by Dr Banerjee at [1/83/8], the only occasion in example 13 on which Mr Somerville cut off Dr Banerjee was to give her, at [1/83/16] an immediate explanation in answer to her expressed "difficulty in understanding this whole sort of questioning …" (see [1/84/15]). Complaints about use of the words "assertion" and "credibility" have no merit for reasons given earlier.
44. A1.44 Mr Somerville then asked a question which I shall call "example 14":

[1/84/3] MR SOMERVILLE: Q Dr Banerjee, I have asked a clear question. I am not asking about what you think about the previous Panel's decision, I have explained to you why I am asking these questions, I have given all parties in the room an opportunity for me to stop asking if they think it is inappropriate. So please could you just answer my question?

45. A1.45 Ms O'Rourke criticised Mr Somerville in this question for a tone and choice of words which, she submitted, was almost bullying. I do not agree. Far from bullying, he repeated what he had said earlier about willingness to stop asking if his questions were thought inappropriate.
46. A1.46 I shall call Dr Banerjee's answer, and Mr Somerville's next question, "example 15":

[1/84/4] A Sir, I think I have tried to explain that it was a very difficult time for me in a number of ways, personally --

[1/84/5] Q Please could you answer my question about when you had correspondence about New Zealand, when you had correspondence with the MPS, when you had correspondence with Australia and when you had correspondence with the Maldives?

[1/84/6] A Well, the correspondence --

[1/84/7] MR ROWLEY: Just in fairness to Dr Banerjee, it is very stressful giving evidence, as you know, before a Panel, but that is four questions and I wonder if we could just break them down and take them one at a time.

[1/84/8] MR SOMERVILLE: Fine, well I was to begin with only asking one.

[1/84/9] MR ROWLEY: I do understand.

47. A1.47 Ms O'Rourke criticised Mr Somerville in this passage for interrupting Dr Banerjee. The interruption, she submitted, appeared to be the tactic of someone trying to make a case of dishonesty in relation to the voluntary erasure application. In my view the interruption was understandable: Dr Banerjee appeared to be yet again trying to deflect the question rather than to answer it. Moreover, Mr Rowley was there to invite the panel, if he thought it right, to let Dr Banerjee continue with what she had been saying. I can readily sympathise with Mr Rowley when he says how difficult it can be to know when to intervene. However Mr Somerville had already made it clear that he was happy to accept interventions on the appropriateness or otherwise of his questions. Indeed on this occasion Mr Rowley did intervene – adopting the practical approach of suggesting that Mr Somerville break down his questions. In these circumstances Mr Somerville was entitled to think that there was no objection either to his interruption or to his line of questioning. I do not consider that he appears to be making a case: he appears to be trying to understand what happened.

A1H: Mr Rowley's reference, and Mr Somerville's follow-up

48. A1.48 Further questions and answers concerning the dates of correspondence led Mr Rowley to refer the panel to a passage in the first refusal decision. What he said, and the next question by Mr Somerville, are in a passage which I shall call "example 16":

[1/85/3] MR ROWLEY: Sir, I believe it is in the Panel's determination which is in the GMC's bundle of documents which might provide some assistance. Page 8 of the determination on page 23 of the bundle, it says in the third paragraph:

"However, the Panel has noted that, from April 2011 and alongside your application for VE, you were also considering seeking employment overseas as a doctor in New Zealand and Australia."

[1/85/4] MR SOMERVILLE: Okay.

[1/85/5] MR ROWLEY: Now, in conjunction with that, and Dr Banerjee may be able to comment, but she has explained what she was applying for in New Zealand and she will be able to explain that what she is alluding to is after that it goes back to the GMC and then the issue about registration arises. So it is around that early part.

[1/85/6] MR SOMERVILLE: Okay, so Dr Banerjee, do you accept the sentence that Mr Rowley has pointed us to in the determination that talks about from April 2011?

49. A1.49 Ms O'Rourke advanced a criticism that Mr Somerville in this passage was cross-examining for a concession. The criticism is simply wrongheaded. It was Mr Rowley, Dr Banerjee's own lawyer, who at [1/85/3] had cited a sentence from the first refusal decision identifying a period beginning in April 2011, and who had suggested at [1/85/5] that Dr Banerjee might be able to comment on that sentence. Mr Somerville simply did what Mr Rowley invited him to do. The notion that because he used the expression "do you accept" he was seeking a concession is absurd: he was seeking to find out what comment Dr Banerjee might have.
50. A1.50 Further questions and answers led to what I shall call "example 17":

[1/87/15] MR SOMERVILLE: Right. Okay, so my timeline is that on 11 February Dr Fielden started an investigation and you made your admissions on 14 February about the e-portfolio entries. Then in April you had a thought about going to New Zealand and Australia. Then we have 23 May you write an e-mail saying that you are not going to pursue a career in medicine, a similar e-mail on 8 June and then another e-mail in July. So after the suspension in July you write an e-mail, 14 July, which is D3, page 2, saying that you are going to pursue a business with a relative and will not be pursuing a career in medicine. The VE is granted on 19 July. If we turn to D4, on 15 August, which is DB7 which is kind of the third page of D4, on that you make a declaration that you are on the overseas register of the General Medical Council.

[1/87/16] A Again, this is not complete documentation, because it does not include the registration certificate which again has not been …

51. A1.51 Ms O'Rourke criticised Mr Somerville in this passage for a "lengthy and argumentative barrister style question". She submitted that he was "putting his case". She then said that he wasn't asking a question at all. However I cannot accept any of these criticisms. Mr Somerville has identified a timeline from the documents, and he sets it out. He is giving an opportunity for Dr Banerjee to comment, and she takes that opportunity.
52. A1.52 Further questions and answers led to what I shall call "example 18":

[1/88/3] Q Yes, but you filled in a form on 15 August stating to the Maldives, the Republic of Maldives, that you were on the General Medical Council Register?

[1/88/5] A That is simply not correct because the expiry date, which is not included here, is shown on the registration certificate, so it was an expired registration, I never indicated that I was currently registered at all.

[1/88/5] Q So, perhaps you could explain the document that we have at D4 then? What is this document?

[1/88/6] A Well, again, it is not complete because it does not include all --

[1/88/7] Q Can you answer my question? What is this document?

[1/88/8] A It is a registration application for the Maldives Medical Council.

53. A1.53 Ms O'Rourke criticised Mr Somerville in this passage for badgering Dr Banerjee, putting a false proposition to her, and cutting her off. These criticisms in my view ignore the context. The panel had been given documents identified by Mr Rowley, and one of them appeared to be a registration application for the Maldives asserting that Dr Banerjee was on the overseas register of the GMC. It is hardly surprising that Mr Somerville took her up on this when she asserted that she had never asserted that she was currently registered at all. As to putting a false proposition, what he asked Dr Banerjee to do was to explain what was on the face of the document. Again, rather than responding directly to the question, at [1/88/6] Dr Banerjee appears to be trying to deflect the question. The cut-off in those circumstances is understandable.
54. A1.54 I shall refer to the questions and answers which followed as "example 19":

[1/88/9] Q Who filled it in?

[1/88/10] A Not me, somebody at the Maldives Medical Council.

[1/88/11] Q Right. How did they find out the information that is contained in this form?

[1/88/12] A Based on telephone discussions I had with them, not with them personally but with the hospital representative who was arranging a job.

[1/88/13] Q Did they provide a copy of this form to you?

[1/88/14] A Only after I joined up there, not before.

[1/88/15] Q So you had not seen that before you joined up?

[1/88/16] A No, this is not my handwriting.

[1/88/17] Q No you have explained that somebody else has filled it in. So when do you say that this person was provided with your GMC registration details?

[1/88/18] A Again, sir, the document is in the folder and it is the old certificate which I submitted after I went out there, having discussed it over the phone because I obviously had not flown for the interview, that was done over the phone. When I arrived I provided them with a copy of the documents they wanted.

[1/88/19] Q So is this in August?

[1/88/20] A Whenever I joined up.  September I think.

[1/88/21] Q So in September 2011 you provided them with a GMC certificate?

[1/88/22] A Original, yes.

[1/89/1] Q Why did you do that, because you were no longer on the Register at that point?

[1/89/2] A They wanted to see my previous registration, so they wanted to see evidence of it. So it is within the bundle of documents and I do not know why, sir, to be honest, considering this is my future and my life, I am not being allowed to actually see these previous –

[1/89/3] Q I do not know why you are talking that stance. Who is preventing you from seeing any documents?

55. A1.55 Ms O'Rourke criticised Mr Somerville in this passage for tone and comment inappropriate to an adjudicator. She submitted that he asked an antagonistic question, harassed Dr Banerjee over her request to see the document, acted as prosecutor, and was guilty of unfair questioning. On analysis, however, these criticisms seem to me to be unfounded. The tone and comment is not inappropriate to an exercise of working out what the course of events was. His questions were not antagonistic or unfair. Far from harassing her over what she said about seeing documents, he expressed what to all intents and purposes appears to be genuine puzzlement as to why she thought she was not allowed to see previous documents.

A1J: Exchanges between Mr Rowley and the chairman

56. A1.56 A further question and answer led to what I shall call "example 20":

[1/89/6] MR ROWLEY: Sir, I think we have got into an area, with respect, there is a very clear and a very understandable anxiety on the part of Dr Banerjee that because we are essentially retrying matters that over a few days last year she produced evidence at the hearing last time before they made their determination that is not before you, so we are getting into a bit of an impasse, I think.

[1/89/7] THE CHAIR: My problem, Mr Rowley, frankly is that you were at liberty to ask for those documents to be produced for us at any stage. You could have asked this morning for that entire bundle to be produced for us, and equally Ms Woodward could have suggested that. We cannot actually follow the line of reasoning in the case without that whole bundle of documents being produced for us, and us sitting and looking through them. So we could have resolved this issue, this was the way to resolve this issue, and I did try to incline people that way by saying we had no documentation, and we had had no chance to look at anything about this case until this morning. In my view – and, in fact, one of the things I am duty bound to say as Chair – it would have saved us a lot of time today had we had the benefit of this. Each time that either of you referred to something in that file it would have been simple for us to turn and have a look at it.

57. A1.57 Ms O'Rourke criticised the chairman in this passage for complaining about lack of documents while ignoring that it was the panel members who had opened up the matters on which documents were needed. This is an unfair criticism. In the pre-hearing discussion both sides recognised that the panel might wish to refer to the documents that had been before the first panel. They had, in the event wrongly, thought it would suffice simply to have transcripts and previous bundles available for inspection. What happened at the hearing was that Dr Banerjee said things which fully entitled the panel to want to know more.
58. A1.58 Further questions and answers led to what I shall call "example 21":

[1/90/1] THE CHAIR: Anyway, for example, I find myself in a situation all of a sudden confronted at this stage with document D3 which refers to registration with the Medical Council of India, and which actually interferes with the concept that you were working at the leprosy hospital no registration was required. It says over here:

"Registration with Medical Council of India should be updated regularly."

[1/90/2] A Well then, sir, I would have to insist that the e-mail which I have sent to Mr Rowley, where I have clearly made inquiries about registration and I have been directed not to do that by the Leprosy Mission itself. This woman is the superintendent where I worked, she was not overall in charge of recruitment sir, and she may not know the individual rules applying to volunteers from her own country or from other countries. But the message, in writing, I received from the management, the people who do control the recruitment is that I had been directed against applying for registration, sir, and it is in black and white. I would also have to insist, sir, that if this is being rehashed, that the MPS e-mail or telephone note saying, "Keep options open" because I expressed a concern and I have said it again why this matter, which has already been decided upon, is being reignited at this stage. I do not understand that I am afraid. I do not want to come across as being rude at all, but --

59. A1.59 Ms O'Rourke criticised the chairman in this passage for cross-examining. But he was not cross-examining. He was perfectly frank about his reaction when he saw a particular document.

A1K: The "closed matters" discussion

60. A1.60 It was at this point that the "closed matters" discussion set out in section B5.8 of the main judgment took place. As noted in that section, this was followed by the chairman's own assessment, and discussion of that assessment.

A1L: The chairman's assessment, and the ensuing discussion

61. A1.61 The chairman's assessment, and the ensuing discussion, constitute what I shall call "example 22":

[1/92/2] THE CHAIR: Mr Rowley, the position is that Ms Woodward I think is correct that the reasons why she went into the issues about the previous episode and the clinical aspects of the clinical episode relate to the evidence that Dr Banerjee has given. I feel that it is necessary to put forward on record the way I considered the Panel itself has been considering the matter because, as far as this Panel is concerned – and I think I made clear to Dr Banerjee – what we are looking at is the document in our folders, under K in our folders, which is Guidance on making decisions on voluntary erasure applications. This is the document that we are looking at. In such circumstances I hope I am correct, and I hope the Legal Assessor will agree with me, that we have to look at this document as an entire document and we are looking at items such as item 24, the likelihood of the doctor seeking restoration to the Register. We have to look at items 34 and 35:

"Evidence the doctor has no intention to practise in the UK or elsewhere in the future."

We have to look at this document when we are looking at restoration. This is the only, in fact, guidelines that we are given in our material. This document, it is in the other folder.

[1/92/3] MR ROWLEY: Sir, I am glad I was shown this.

[1/92/4] THE CHAIR: In my view, the Panel's questions are in fact not relating to the clinical aspect, or indeed to the probity issues which have been the subject of discussion about the three altered e-portfolios, it is looking at this document which follows on from that. This is the document on which I believe we have to make a decision.

[1/93/1] MR ROWLEY: Sir, if I may just respond to that. My respectful submission would be that actually it would be my view that that actually is not a document that is pertinent to this Panel's consideration for today because the only relevant provision in my submission is Rule 24 of the Fitness to Practise Rules which is the procedure for considering an application by a practitioner to restore her name to the Register, not to remove her name from the Register. That guidance, the guidance at tab K, is for Fitness to Practise Panels and case examiners when considering applications for VE. Now, this Panel is seized with the jurisdiction of the alternative, which is Rule 24, and essentially, to put it simply, to decide whether or not you consider that it would be appropriate to allow this practitioner to restore her name to the Register. There is, as far as I am aware, still no – unless I am corrected – guidance to Panels on the criteria you apply when you are considering a case under Rule 24.

[1/93/2] THE CHAIR: Can I just point out to you, that on page 5 of this document that I have just drawn your attention to, the heading is, "Dealing with applications for restoration following voluntary erasure".

[1/93/3] MR ROWLEY: Sir, yes. Sir, it would appear to me on my first reading of that – and I am grateful to you for refreshing me, sir, because I have not read it as recently – but that to me is guidance to case examiners, sir.

62. A1.62 Ms O'Rourke criticised the chairman in this passage for his interchanges with Mr Rowley. As I understood it, she submitted that he was identifying what the panel's questions on an objectionable topic were all about. To my mind, however, he is simply focussing on relevant GMC guidance.

A1M: Legal advice on credibility & Mrs Staveley's final questions

63. A1.63 Further discussion led to a question from Mr Somerville:

[1/94/6] MR SOMERVILLE: Could I ask maybe the parties and the Legal Assessor to advise how we should assess the credibility of the witness's evidence today? Is it that certain elements of the evidence she has given we should not consider, put out of our minds, relating to VE or should we be assessing the credibility of the witness with everything that she says?

64. A1.64 It was in response to Mr Somerville's question that the legal assessor gave the legal advice on credibility as set out in section B5.8 of the main judgment. As noted in that section, there were then 5 questions from Mrs Staveley. Those questions, with Dr Banerjee's answers, constitute "example 23":

[1/95/3] MRS STAVELEY: Yes, there is just one matter, do forgive me, Dr Banerjee for having to go back to this, but this is to clarify, we have heard a lot of evidence today, we have seen a lot of documentation, and this is just to clarify for me to make sure I have got the order correct. So, in point of fact I will state what I think I have heard today and it will be a yes-or-no answer from you, it really will not take a moment. What I have got here is that you were dismissed by the Trust on 23 May 2011. Is that correct?

[1/95/4] A Yes.

[1/95/5] Q There were IOP proceedings on 10 June 2011 when you were suspended. Is that correct?

[1/95/6] A Yes.

[1/95/7] Q Yes. Thereafter you applied for voluntary erasure and this was granted on 19 July 2011.

[1/95/8] A Yes.

[1/96/1] Q This, in effect, brought further proceedings before the Fitness to Practise Panel to an end, in other words they did not proceed after the voluntary erasure was granted.

[1/96/2] A Yes.

[1/96/3] Q Some 17 days after the voluntary erasure was granted, that is on 15 August 2011, you made the application to work in the Maldives.

[1/96/4] A Yes.

[1/96/5] MRS STAVELEY: Right thank you very much, that is just what I wanted to clarify.

65. A1.65 Mr Rowley's witness statement described this as "questioning [which] … continued … along the same issue of voluntary erasure applications". Ms O'Rourke criticised it as wanting yes or no answers, asking about the suspension proceedings, and asking about voluntary erasure despite the legal assessor's advice. All of these things, Ms O'Rourke submitted, showed that Mrs Staveley was not seeking to clarify. Moreover, said Ms O'Rourke, Mrs Staveley did not need to clarify.
66. A1.66 I fundamentally disagree. Mrs Staveley gave an explanation at the outset of these 5 questions as to the purpose of her questions, saying "this is just to clarify for me to make sure I have got the order correct". The content of her questions and the remarks which preceded them are entirely consistent with the explanation that she gave.
67. A1.67 The remainder of Dr Banerjee's evidence comprised answers to questions from Mr Rowley, as noted in section B5.8 of the main judgment.

150. A1.67 The remainder of Dr Banerjee's evidence comprised answers to questions from Mr Rowley, as noted in section B5.8 of the main judgment.