Nikhilesh Rao Vardhineni v General Medical Council

This is an appeal against a decision to erase a doctor from the GMC register. It arises out of the way that a private company assisted international medical graduates to prepare for a practical exam. The context is this. At all material times the GMC set a Professional and Linguistic Assessment Board (“PLAB”) Test, to assess the knowledge and skills of overseas doctors seeking to be registered to practise in the UK. The PLAB Test was in two parts. PLAB1 was a written exam. PLAB2 was an objective structured clinical exam. PLAB2 involved the candidate attending at a clinical assessment centre, and facing some 18 clinical scenarios with actors, to test their knowledge and skill. These were devised and selected, under arrangements designed to secure confidentiality, from a “station bank” of some 300 clinical scenarios. Students who took PLAB2 were required to declare that they would abide by rules which included not sharing exam content in any way. Candidates were also told on the day of the PLAB2 exam that they were not to share any information about the clinical stations with others and there were posters in the assessment centres reminding candidates of this requirement. All of this was in evidence accepted by the Medical Practitioners Tribunal (“the Tribunal”).

On around 1 October 2019, a 408-page folder of documents (“the Folder”) was found at one of GMC’s clinical assessment centres. It had been left there by a candidate who had undergone PLAB2 at the centre a few days earlier. The Folder was branded with the name “Aspire2plab”, including as a watermark diagonally across each page. Aspire2plab was also identified on the front of the Folder and its address was given at Staines Road London TW3. The Folder contained large amounts of information about PLAB2. It included detailed clinical scenarios, the same as those in GMC’s “station bank”.

The Tribunal received in evidence records from Companies House for Aspire2Plab Ltd (“Aspire”). Those records showed that Aspire was incorporated on 23 March 2019. At that point it had a single Director and Shareholder, Dr Ahushree Chandra. A second Director, Dr Ankur Garg, was appointed subsequently on 13 February 2020. The company’s registered address was a Vicarage Farm Road London TW5 address from 23 March 2019. It changed to the Staines Road TW3 address (as seen on the Folder) on 25 March 2019. It later changed again to a Rose Street Oldham OL9 address, from 26 November 2019. The Appellant accepted that he acted as a tutor for Aspire, preparing international medical graduates for the PLAB Test. He says he was a tutor from February 2018 to November 2019, at weekends, while working full-time in the NHS. He maintains that he did it as a part-time volunteer, unpaid, because of his passion for teaching. He also maintains that he had no involvement in the management of Aspire or in the production of the Folder or the PLAB2 teaching materials within it.

On 9 December 2022, after a 33-day hearing, the Tribunal directed pursuant to s.35D(2)(a) of the Medical Act 1983 that the Appellant’s name be erased from the GMC register. The Tribunal did so, having found that Appellant’s fitness to practise was impaired because of misconduct. It concluded that his misconduct was fundamentally incompatible with continued registration and that erasure was the only appropriate and proportionate sanction to protect the public, uphold standards and maintain public confidence in the medical profession. The Tribunal’s determinations involved three stages, familiar in GMC cases. First, there was a 23-page reasoned determination on the facts. Secondly, there was a 7-page reasoned determination on impairment. Finally, there was a 10-page reasoned determination on sanction. The Tribunal also made a series of reasoned rulings during the proceedings. These were annexed to the determination.

In its stage 1 determination on the facts, the Tribunal found – in particular – that the GMC had discharged the burden of proving all of the following, on the balance of probabilities. First, that the Appellant and/or a third party acting on his general instruction: (a) procured information about the content of PLAB2 which was confidential and not publicly available; (b) created teaching materials containing that confidential information; (c) distributed those teaching materials to Aspire students; and (d) represented that the teaching materials were Aspire’s original work, which was untrue. Secondly, that the Appellant knew (a) that the act of distribution would give Aspire students an unfair advantage in PLAB2 and (b) that the representation about Aspire originality was untrue. Thirdly, that in each of those two respects the Appellant’s conduct was dishonest by the standards of ordinary and decent people.

As the Tribunal explained, if any PLAB2 candidate were to have prior knowledge of GMC clinical scenarios, they would gain an unfair advantage. As it went on to explain, that could mean that candidates could pass PLAB2 even though they lacked the requisite knowledge or skills to practise medicine safely. This links to the statutory overarching objective of the GMC (see s.1 of the 1983 Act) which is the protection of the public through the pursuit of these objectives: to protect, promote and maintain the health, safety and well-being of the public; to promote and maintain public confidence in the medical profession; and to promote and maintain proper professional standards and conduct for members of that profession.

The Appellant appeals to the High Court pursuant to s.40 of the 1983 Act and Civil Procedure Rules r.52.21. He says the Tribunal’s findings and/or sanction are “wrong” and/or “unjust because of a serious procedural or other irregularity” in the Tribunal’s proceedings. There are many authorities which describe the Court’s approach on an appeal. Nothing in this case can turn on any nuance as to the Court’s approach. Mr Mant invited my attention to Byrne v GMC [2021] EWHC 2725 (Admin) at §§12-16 (appeals and findings of fact); CPR r.52.21(4) (own inferences); Sait v GMC [2019] EWHC 3279 (Admin) at §16 (credibility-based inferences); PSA v HCPC [2017] EWCA Civ 319 (Admin) at §38 (insight); Khan v GPC [2016] UKSC 64 [2017] 1 WLR 169 at §36 (standards and reputation); Sastry v GMC [2021] EWCA Civ 623 at §§101, 105, 112 (sanction); and GMC v Theodoropolous [2017] EWHC 1984 (Admin) at §§35-40 (dishonesty and sanction).

The Tribunal’s determination on the facts recorded, over the course of 3 pages, the advice as to the law which was given by the Tribunal’s Legally Qualified Chair. That advice covered a number of relevant topics. This included the burden and standard of proof. It covered the standard of reasons required from the Tribunal. It addressed the approach to dishonesty. It discussed the legal relevance of good character. It addressed the dangers of assessing a witness’s credibility exclusively on demeanour. It emphasised that the Tribunal should analyse the evidence logically to reach conclusions on any inconsistencies, addressing counsel’s submissions, and making clear findings on central disputed issues. It emphasised that the Tribunal should consider all the evidence before reaching any conclusion about credibility, including good character, and remembering that credibility can be divisible. No error or material omission is detectable in the advice set out. The determination records that the legal advice was accepted by Counsel for the Appellant and Counsel for the GMC and that it was applied by the Tribunal.

The Tribunal’s determination on the facts sets out clearly what led it to each of its findings of fact. Derived from the determination there are the following features of the evidence which were prominent in the Tribunal’s reasons:

There was the evidence that the Appellant had himself taken PLAB2 on three occasions. The Tribunal recorded the evidence that all PLAB2 candidates are required to avoid disclosure of any PLAB2 information. The Appellant submits that many people click on terms and conditions to say they have read them when they have not. But the Tribunal had evidence of the multiple ways that confidentiality is enforced. It found that the Appellant was aware of the highly confidential nature of the PLAB2 test information, having signed the candidate agreement and having undertaken not to disclose it, on each of the three occasions he applied to take PLAB2.

There was the evidence relating to the contents of the Folder. The Tribunal received written and oral evidence from Ms Sundus Ahmad, the GMC’s Assessment Officer at the time. Ms Ahmad explained that she reviewed the content of the Folder against the scenarios in the GMC’s question bank. She found 111 scenarios in the Folder that matched those in the GMC question bank, of which 83 were “extremely consistent”, with much of the information an “exact match”. The Tribunal also received written and oral evidence from Dr Richard Hankins, the GMC’s Head of Assessment. Dr Hankins gave a concrete example, by reference to documents which he had exhibited, of a scenario in the Folder matching the question bank, with details of the patient’s name, age and condition; including details about what the actor in the clinical scenario would say; and including details of a document the actor would provide to the candidate if the candidate asked a particular question. The Tribunal found that significant parts of the Folder relied on the GMC’s confidential information about PLAB2. And it was in this context that the Tribunal explained the unfair advantage with its implications for candidates, lacking the requisite knowledge or skills to practise safely, passing PLAB2.

There was the evidence which linked the Appellant with the contents of the Folder. The Tribunal received written and oral evidence from Dr Roudi Ali, a former Aspire student, who explained that he had attended an Aspire course, for which he was provided with an 800-page pack of “course materials” including PLAB2 example stations, and that he was taught by the Appellant and another person called Fatimah. Dr Ali exhibited his pack which was similar in its nature to the Folder.

There was the evidence of the Folder itself – and Dr Ali’s exhibited pack of course materials – where the watermark “Aspire2plab” appeared diagonally across the page. On the front cover were two names. One was Dr Ankur Garg; the other was the Appellant.

Then, on the contents page of the Folder and on subsequent pages, including the pages of materials which matched the GMC’s station bank scenarios, there was a running footer. This footer said on its left hand side “© copyright” and on its right hand side there were the two names again: Dr Ankur Garg and the Appellant.

There was the Appellant’s evidence about that copyright footer on the teaching materials within the Folder, also seen in Dr Ali’s exhibited pack of course materials. The Appellant accepted that he had been aware of the copyright footer next to his name. He said that he had first seen it – the copyright symbol next to his name – in March or April 2018, within “four to eight weeks” of starting as a part-time tutor for Aspire. He told the Tribunal that he had asked why his name had been “put next to the copyright symbol”. He said he had been told, and was reassured to be told, that:

Pausing there, the Appellant maintained before me on this appeal that the footer was “introducing” him as “a tutor”. He told me that he had worked for Aspire longer than the other tutors. He said it was therefore a reflection of his being “long term” that he came to be named in the materials. He said that it was long enough, after “3 months”, for him to be named in the materials when the other tutors were not. This suggested “3 months” is different from the “4-8 weeks” in the explanation he gave to the Tribunal. Putting that to one side, I am no less able to accept the plausibility of the explanation than could the Tribunal. A tutor can be “introduced” to their students by being on the front of the materials. A tutor can be “introduced” to their students, whether they are relatively new or relatively long-standing. A running copyright symbol footer, objectively, is not an “introduction”. The copyright symbol was not next to Aspire2Plab. It was next to two names, one of which was the Appellant’s.

The next feature of the evidence was the Appellant’s evidence about his knowledge of the contents of the Folder. Strikingly, he told the Tribunal that he had merely “glanced quickly through it” when he “first started”. He told the Tribunal that he only saw the Folder on “maybe two or three occasions” and “for less than ten minutes”.

This was linked to the next feature. That is the Appellant’s evidence about the relationship between the contents of the Folder and his own teaching. In his oral evidence on Day 18 the Appellant said to the Tribunal: “I only teach according to the topics; I don’t teach according to the scenarios in the books”. He said “we are asked to cover particular topics; for example, if someone says ‘please cover cardiology. Please cover respiratory medicine. Please cover chest pain. Please cover shortness of breath’”. He told the Tribunal that he made his own presentations and slides, from scratch. When asked whether he would use “the same facts, the same problem, in your slide … as there are in the folder” or “is it a different set-up?” he replied that his was “completely different”. The GMC then played a video on Day 19 which showed the Appellant presenting scenarios. As the Tribunal records, after the video had been watched, the Appellant then conceded that he had used in his slides the headings “in the Teaching Materials in the Aspire folders”. That was because each opening slide had a scenario which was identical to a description found in the Folder. But the Appellant maintained that he had not derived the scenario from the Folder. He said the scenario had been emailed to him, as being the “topic” and the “task”.

The Tribunal considered that the Appellant’s post-video evidence demonstrated a “shift in emphasis”, which it described as a shift apparently to take account of what was shown in the video. The Tribunal explained that it considered that the Appellant had altered his account of events, and his account of how he taught, after the video evidence had been shown. The Tribunal also explained that, had his evidence been wholly consistent, it would have placed greater weight on it.

In this context, the Tribunal also recorded that, when the Appellant was asked about a “table” which he had included in his paediatrics slide in the video, he said he had produced “a rough version” of this fluid chart to “incorporate in the Folder for students”. Pausing there, this acceptance became a reference-point at the hearing before me. The Appellant had accepted before the Tribunal that he had produced content which was incorporated into the Folder. During his oral submissions on this appeal he urged me accept that “nothing in the Folder” was his; that he made “no contribution” to it; and that the Folder had been “prepared before I joined”.

There was the Appellant’s evidence about his role at Aspire. His evidence to the Tribunal was that he had volunteered as a tutor for Aspire, because he found it very fulfilling, and had a passion for teaching international medical graduates. The Tribunal recorded that, if the Appellant were “a part-time voluntary tutor with no other interest in Aspire”, he would have been less likely to have had significant involvement in Aspire’s activities, including any control over its approach to teaching. The Tribunal said this was a factor relevant to determining the likelihood of his having procured information about PLAB2.

In relation to that role, there was evidence about addresses. It was put to the Appellant that from 30 June 2019 his own address for GMC registration purposes was the same Vicarage Farm Road TW5 address which was Aspire’s registered address at Companies House from its incorporation on 23 March 2019 until 25 March 2019. It was put to the Appellant that from 23 September 2020 his own address for GMC registration purposes was the same Rose Street Oldham OL9 address which was Aspire’s registered address at Companies House from 26 November 2019. In response, the Appellant told the Tribunal these were the addresses of Aspire’s single Director and Shareholder, Dr Ahushree Chandra. He said they were his GMC registered addresses because he had married Dr Chandra and had lived with her at those addresses. They had married in December 2018, having met through Dr Garg in the summer of 2018.

The Tribunal recorded that this relationship between the Appellant and Dr Chandra had been disclosed, for the first time, “half-way through the hearing”. The Tribunal reasoned that the connection with Aspire’s sole Director suggested that, even if the Appellant never – as he claimed – received any formal payment for being a tutor, he may have obtained a material advantage from Aspire’s financial success. The Tribunal also observed that the Appellant’s initial lack of openness about Dr Chandra could indicate a wider lack of openness with the GMC and with the Tribunal, which the Tribunal had to balance against his good character, when assessing the likely veracity of his account.

The Tribunal referred to other evidence relied on by the GMC. It referred to a social media post from March 2020 which described the Appellant as a “director”. The Tribunal found, in light of all the evidence, that the Appellant had been an “integral part of the Aspire organisation”.

Four grounds of appeal are advanced by the Appellant in his skeleton argument. One of those grounds submits that the Tribunal’s decision was “procedurally unjust”. In developing that ground of appeal points are made about what are said to have been vague and inconsistent witness evidence, and about there having been a lack of direct evidence. Those are points which go to the substance of the Tribunal’s adjudication. That leaves a procedural fairness point, advanced by the Appellant, about what he describes as delays in disclosure. The Appellant says it was procedurally unfair for the Tribunal to hold against him that he had only disclosed the fact of his marriage to Dr Chandra “half-way through the hearing”, when the Companies House records had only been produced by the GMC on 25 April 2022, immediately before the hearing. He says, prior to that, he was responding to the case against him; that nothing was put to him about Dr Chandra; and that he would have revealed the marriage between them earlier, had there been earlier disclosure of the Companies House records.

There was no procedural unfairness. The Appellant had put in a witness statement on 21 April 2022. He described his role within, and relationship to, Aspire. He was just a part-time tutor. The materials including from Companies House were admitted by ruling of the Tribunal on 26 April 2022, and the point was specifically made that similarities in addresses “appear to indicate a connection”. The Tribunal ruled, correctly, that the evidence was relevant and not unfair. On Day 18 (19 May 2022) the Appellant was then tendered for cross-examination. He said that Aspire was Dr Garg’s idea but that it was Dr Chandra who set up the company. He said he met Dr Chandra in 2018. He was later shown the similar addresses, and then he was asked “what’s your relationship with Dr Chandra?”. Out it then came: “Dr Chandra is my wife”. That was a disclosure of information, by the Appellant, and it was belated. The Tribunal was in a position fairly to consider what to make of this and its timing.

Another of the four grounds advanced by the Appellant is that the sanction of erasure is disproportionate. On that topic he identifies three points. One was that he has an unblemished professional career history back to 2013, reflecting a commitment to ethical medical practice. He told me that his medical career had been progressing well and that he wants to get back to the ward. Another point was that there was a lack of proven dishonesty. The third point was that there was a lack of evidence of any direct involvement. The second and third of these points relate to challenges to the determination on substance, as to the facts and as to dishonesty. The Tribunal had regard to the Appellant’s unblemished professional career history. But, on its findings of fact and finding of impairment, the finding was unassailable that this was misconduct fundamentally incompatible with continued registration and that erasure was the only appropriate and proportionate sanction to protect the public, uphold standards and maintain public confidence in the medical profession.

I record here that, in his oral submissions to me, the Appellant made references to now understanding that what he “did” was “wrong”; that he had made sure he would not “do it again”; and that it happened “unintentionally”. He steadfastly maintained, and still maintains, that he had no involvement in the creation, distribution or use of the contents of the Folder. He then made points about exams for which people are prepared, like preparation for a driving test and openly using past papers. He also described different academies as preparing students for PLAB2 and collecting materials from different academies. He told me that the GMC should have handled it differently: they should simply have asked Aspire to “stop doing it”; they should have advised them to teach differently; and they should address the wider issues of any students who are cheating PLAB2. None of these points begin to undermine the sanction, if the Tribunal’s findings of fact and impairment stand. The points about driving tests and open use of past papers miss the point. This case is about clinical scenarios intended to be kept confidential so they can properly test skills. This case was squarely about whether the Appellant did, or did not, do what was alleged against him. The points about sanction have no real traction unless the findings of fact are first set aside.

That leaves the two grounds which are at the heart of the appeal, and the other points made. The Appellant advances two substantive grounds of appeal. One substantive ground is about unsupported findings. Its essence is as follows. The Tribunal’s adverse findings on the facts were unsupported by evidence. There was no direct or concrete or reliable evidence. The Tribunal did not address the lack of direct evidence. The evidence was vague and inconsistent. The findings were inferences. They were unsubstantiated and speculative. There is no evidence of procuring confidential PLAB2 materials, or of having access to them, or of distributing them. The evidence is circumstantial. The finding of dishonesty is unproven, and predicated on unsubstantiated claims about creation and use of materials. That is the first ground.

The other substantive ground is about a mischaracterised role. Its essence is as follows. The Appellant’s involvement with Aspire was limited, with no operational involvement and no authority. He was a contractor, acting as a volunteer tutor. His teaching was based on published guidelines and practices, reflected in video evidence. He had no involvement in the management, creation or dissemination of teaching materials. His wife was herself a silent investor with no operational involvement. His name on the Folder was simply an acknowledgment of his role as a tutor. There was no proven direct involvement. That is the second ground.

The Tribunal acknowledged the absence of direct evidence. It specifically recorded that that both “Counsel agreed that there was no direct evidence about how confidential information was obtained or by whom”. The Tribunal recorded that the GMC invited it to “infer” from the surrounding circumstances that the Appellant was an integral part of Aspire, an organisation involved in providing an unfair advantage to PLAB2 candidates. It recorded the factors by reference to which it was invited to infer that the Appellant was involved in procuring the confidential information and creating teaching materials using confidential information for the Folder distributed to students to enable them to gain an unfair advantage. The Tribunal also expressly recorded Counsel for the Appellant’s submission which cautioned the Tribunal against speculation. His submission was: “Assertions, beliefs, possibilities and tenuous theories, however devoutly and firmly held and impressively delivered cannot and never will be capable of amounting to the necessary proof of evidence to be established by the GMC”.

The Tribunal was satisfied that the GMC had discharged the burden of proving the factual matters alleged. It gave clear and cogent reasons for its conclusions. It considered the entirety of the evidence heard in the context of the documents provided. It analysed the evidence logically reaching conclusions on inconsistencies and addressing counsel’s submissions making findings of fact on the central disputed issues. It had close regard to the appellant’s good character and the ways in which that good character was an important factor capable of assisting the Appellant. It based its factual findings on inferences drawn from documentary evidence and known probably facts using oral evidence to subject the documentary records to critical scrutiny and to consider the witnesses personality or motivation, assessing the evidence in the round, avoiding assessing the witnesses credibility based on demeanour but testing veracity by reference to objective facts proved independently of testimony in particular by reference to documents and making a rounded assessment of reliability. All of this was directly in line with the legal advice of the legally qualified chair which was recorded at the start of the determination on facts. The Tribunal pointed to a number of striking features of the case and a number of key respects in which the appellant’s evidence was clearly unsatisfactory. There was a clear and cogent basis for each adverse finding. There is no basis for finding that the tribunal was wrong in any of its findings or in its approach.

I accept the submission of Mr Mant. Whilst there was no direct evidence as to how or when the Appellant procured the confidential information, it was not necessary for the GMC to establish those facts in order to make good the allegation. The information in the Folder was plainly confidential for the reasons given by the Tribunal. The Tribunal was entitled to infer that the Appellant had been involved in procuring that information, directly or through the general instruction of others. That was based on all the evidence, including: the fact that the Appellant’s name was at the foot of most pages of the Folder next to the copyright symbol; the fact that the Appellant lived at the registered address of Aspire and was married to the Sole Director and did not disclose this until halfway through the hearing; the fact that he was identified in Aspire promotional materials as one of two members of “our team” and as a “director”; the implausibility of his explanation as to why his name was on the teaching materials; and the inconsistency of his evidence about his approach to teaching.

The facts – emphasised by the Appellant in oral submissions – that Dr Garg’s and the Appellant’s involvement in teaching PLAB2 predated Dr Chandra’s March 2019 actions in setting up Aspire as a corporate entity as its sole Director and Shareholder do not assist the Appellant. The key point is that his evidence was found to have very significantly understated his involvement with Aspire and the Folder, including his belated mentioning in cross-examination his marriage to and cohabitation with Dr Chandra, and including his implausible explanation of why his name appeared with Dr Garg in the Folder including alongside the copyright symbol. The fact – emphasised by the Appellant in oral submissions – that Dr Ali’s evidence had said (Day 10) that so far as Dr Ali could remember the Appellant and Fatimah had passed PLAB2 and “were trying to share their experience with others through the teaching” also does not assist the Appellant. The Appellant says his teaching was not his experience of PLAB2. The case against him was not that he was telling students how he had experienced taking PLAB2. That was not what was taken by the Tribunal from the evidence of Dr Ali. And it was not the Tribunal’s finding.

The Appellant asked me to give him permission to adduce some new documents, not before the Tribunal. I refuse that application. Four documents have been produced. Only one could have any relevance to the substance of the case. It is a letter written to me, as the Judge at the Manchester Court. It is in the name of Dr Garg and dated 8 November 2024. It seeks to support the Appellant on his key points: that he was just a part-time tutor; that he was given topics to teach; that he made his own slides; that he had no involvement in the Folder; that the copyright symbol was for Aspire. There is nothing approaching a good explanation of why this evidence was not adduced in the Tribunal, and why Dr Garg was not called, so that he could be tested by oral evidence with cross-examination. The Appellant, who was legally represented before the Tribunal, tells me his approach in the Tribunal was that it was “for the GMC to prove its case”. But the GMC did prove its case. The Appellant cannot properly now use a High Court appeal to adduce untested evidence that he and his representatives chose not to adduce. Nor in any event could I accord weight to the letter in light of the other evidence and the Tribunal’s findings. The points about the Appellant and the copyright symbol do not gain plausibility through being repeated in a letter; and there is no mention of the implausible idea of the copyright footer being to “introduce a tutor”.

For the reasons I have given, none of the four grounds advanced in the Appellant’s skeleton argument have succeeded. I have considered them cumulatively, and I have considered all of the points he advanced in writing in the grounds of appeal. There is no basis on which the Tribunal’s findings can be said to be wrong or unjust. The Tribunal’s inferences as to the facts were fully justified by, and properly based on, the evidence which the Tribunal received. The Tribunal gave cogent and convincing reasons. There was a careful assessment of the credibility of the Appellant’s oral evidence. The finding of impairment was also fully justified. As the Tribunal explained, erasure was a necessary and appropriate sanction, not an excessive or disproportionate one, given the nature and seriousness of the findings of fact, together with the Appellant’s lack of insight. In those circumstances and for those reasons the appeal is dismissed. The parties agreed, having received this judgment in draft, that the appropriate Order is this: the appeal is dismissed; the Appellant is to pay the GMC’s costs in the agreed sum of £12,961.50 on such date or dates as are agreed; but with liberty to apply if they are unable to agree that date or those dates.