“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.”
“… 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. “… and it has therefore drawn no inference, positive or negative, from this matter.” [1/91/2] THE CHAIR: Legal Assessor? “I declare that the information provided on this form is correct to the best of my knowledge.”
“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. “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.”
“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 …”
“… 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. “… 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.”
“I am struggling how it can be honest…”
“… 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].”
“N Banerjee sent from my iPhone on8 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.”
“I confirm I will not be pursuing medicine as a career.”
“I have stated I would be pursuing business with a relative.”
“Whilst the Panel has noted the sequence of events -- 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”
“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? 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. 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 … A1.51. Ms O’Rourke criticised Mr Somerville in this passage for a “lengthy and argumentative barrister style question”
“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 -- 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 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 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.”