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Court

England And Wales High Court (Administrative Court)

England and Wales

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Case Information

Filed 2024-01-31
Docket 158 entries
Disposition dismiss the appeal

Parties

Plaintiff Dr Shala Imani
Defendant General Dental Council
Photo of Hon. Heather Williams Qc

Judge

Hon. Heather Williams Qc

england and wales

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Lawyers

Docket Entries

  1. It follows that I dismiss the appeal.
  2. The allegations faced by Dr Imani concerned the period 2012 - 2018. During that time she undertook private and National Health Service ("NHS") dental work from her two dental practices in Peacehaven and in Hove. As part of her NHS contract for each practice, she had a yearly target to submit a certain amount of Units of Dental Activity ("UDAs").
  3. In summary, the PCC found that Dr Imani had caused or permitted claims to be made for UDAs relating to treatments that had not in fact been provided as claimed. This included claiming for treatments that had not taken place and submitting claims with incorrect premature dates of completion. In total, the PCC found that in 23 instances her conduct was inappropriate and misleading and that in nine of those instances, including all of the charges relating to claims with incorrect premature dates of completion, her conduct was dishonest, as she sought to obtain UDAs to which she was not entitled. In addition, the PCC found that in one instance she had acted dishonestly in failing to offer a patient treatment under the NHS, as opposed to exclusively under a private contract. The PCC also determined that Dr Imani failed to provide an adequate standard of care in relation to ten patients and that she failed to provide an adequate standard of record keeping in relation to 12 patients. In turn, the PCC found that the proven allegations amounted to misconduct and that her fitness to practice was impaired by virtue of the proven dishonesty.
  4. The Appellant appeals the ten findings of dishonesty. Her Grounds of Appeal are that the PCC was wrong and erred in:
  5. Mr Hodivala KC confirmed at the outset of the hearing that: (a) Ground 1 is only relied on in respect of the ten dishonesty findings, and that none of the other findings made by the PCC are challenged; and (b) Ground 3 only arises if the appeal succeeds in relation to Grounds 1 and/or 2; it does not raise any free-standing issue regarding the sanction imposed.
  6. As I explain in para 38 below, Schedule C (the subject of Ground 1), was prepared by Dr Julian Scott, a former Chief Probity Officer of the Dental Practice Board for England and Wales and the GDC's probity expert. The document set out in tabular form data relating to 45 claims made by the Appellant in respect of treatment concerning 20 patients (each of which was assigned a number). The columns of data indicated the Treatment Acceptance Date ("TAD"), the Treatment Completion Date ("TCD"), the date the claim was received, the Band of treatment claimed and the UDAs relating to it. The data in Schedule C was based on records provided by Mr Andy Lee, Senior Operations Lead for the NHS Business Services Authority ("BSA"), in particular in exhibit NHS4. The provenance of this data is described at paras 41 - 45 below. In short, Mr Hodivala submits that it was hearsay evidence that in fairness to Dr Imani should not have been admitted or should have been excluded by the PCC.
  7. The Appellant's contentions in relation to Ground 2 are detailed at paras 104 - 111 below. In summary, Dr Imani submitted that the PCC failed to focus on or make sufficient findings in respect of her subjective state of mind, as required by the first stage of the test identified in Ivey v Genting Casinos [2017] UKSC 67, [2018] AC 391 ("Ivey"); arrived at inconsistent findings between the allegations of dishonesty that were and were not found proven; and made specific errors of reasoning in relation to some of the charges.
  8. The structure of this judgment is as follows:
  9. The Appellant graduated with a degree in dentistry whilst living in Sweden. She came to the United Kingdom in 1998 and has been registered with the GDC since 25 March 1998. In 2000 Dr Imani purchased her first dental practice, which was based in Peacehaven. When the NHS General Dental Services Contract ("GDS Contract") came into existence in April 2006, Peacehaven was allocated over 19,000 UDAs per annum (a relatively large figure). The contract year runs from 1 April to 31 March. The allocation of UDAs remained at this level during the period that the PCC was concerned with. Over the years, the Appellant engaged a number of full time, part-time and locum dentists to assist her in the practice. She also had a practice manager and a receptionist.
  10. In May 2005 Dr Imani purchased a second practice, this time in Hove. This was a much smaller operation. Initially the patients were all private, but Dr Imani expanded into NHS work and from 2006 this practice was awarded 600 UDAs annually under the GDS Contract. From the year 2016/2017 the Appellant was able to sub-contract around 2000 UDAs from the larger Peacehaven contract to be undertaken at Hove.
  11. The charges faced by the Appellant arose from reviews of randomly selected records of her patients that were undertaken in August 2014, October 2015 and March 2017.
  12. By the time of the hearing before the PCC, the correct approach to making claims for dental treatment under the GDS contract was not in dispute. The contested issues concerned Dr Imani's state of mind at the time when the claims were made.
  13. The GDS Contract was introduced by the National Health Service (General Dental Services Contracts) Regulations 2005 ("the GDS Regulations") and the National Health Service (Dental Charges) Regulations 2005 ("the Charges Regulations"). A dentist who contracts to work for the NHS agrees to deliver an annual number of UDAs. The dentist is then paid monthly pro rata the value of the annual contract. There is no additional payment made for extra UDAs undertaken, but, in the circumstances that I indicate below, the NHS can clawback funds which have been overpaid if UDA targets are not met. Every dental provider is required by their contract to furnish details of the clinical activity undertaken by the contractor's performers. The notification has to be given within two months of the completion of a course of treatment. From 2013 this is given to NHS England.
  14. Clinical activity is measured in terms of UDAs with respect to a completed course of treatment. There are three main charging Bands: Band 1 attracts 1 UDA and covers, for example, examination, diagnosis and preventive care; Band 2 work attracts three UDAs and includes treatment covered by Band 1 with additional treatment such as filings, root canal treatment and extractions; and Band 3 is assigned 12 UDAs and includes treatment that is covered by Bands 1 and 2 plus more complex dental work such as the provisions of crowns and dentures. The provider is expected to know, and to indicate on the FP17 form (para 16 below), the correct Band for the treatment that they provide.
  15. The contractor is expected to use their best endeavours to ensure that the course of treatment is completed within a reasonable time: clause 41 of the GDS Contract and Sch 3 Part 2, para 6(2) of the GDS Regulations. A course of treatment encompasses: examination of a patient, assessment of their oral health, the planning of any treatment to be provided and the provision of the planned treatment up to the date on which every component has been provided to the patient (or they voluntarily withdraw or are withdrawn from the treatment): regulation 2(1) of the Charges Regulations. UDAs are attributable when the course of treatment is complete: regulation 2(1) of the GDS Regulations. Accordingly, the accrual of UDAs for a GDS Contract is directly related to the course of treatment completed during a particular contract year, or, to put it another way, the date of completion of a course of treatment determines the contract year to which the relevant UDAs will be attributed.
  16. The contractor is required to notify NHS England on the prescribed form ("the FP17") within two months of the date of completion of each course of treatment. At the relevant time, the FP17 could be submitted in paper format or electronically. Its contents provide the basis upon which UDAs are attributed under the contract. If a contractor fails to provide the prescribed number of UDAs in a contract year, pursuant to regulation 19 of the GDS Regulations, NHS England may seek to recover the shortfall if it exceeds 4% of the contracted total.
  17. Dentists were issued with the "NHS Dental Services - Completion of form guidance FP17 - England" ("the Guidance"). The version considered by the PCC was published by the BSA in July 2017. I understand that the contents are not materially different from earlier iterations. Part 1 of the form requires details relating to the patient's NHS number, the provider and the performer. Part 2 relates to the patient's basic information in terms of their name, address, date of birth and so forth.
  18. Part 3 of the FP17 is headed "Incomplete Treatment and Treatment Dates". By the words "Incomplete Treatment" the form indicates that the "Band for ACTUAL treatment provided" (emphasis in original) is to be indicated by placing a cross in either Box 1, 2 or 3 (to denote Band 1, 2 or 3). Further boxes in this section of the form, require insertion of the TAD and an indication of whether the TCD is the same as the date of acceptance or, where it is not, the date of completion or the patient's last visit. The Guidance in relation to Part 3 included the following:
  19. Part 4 of the FP17 concerns patient exemptions and remissions. Part 5 is headed "Treatment Category". The various bands are then set out with a box by each so that a cross can be placed to denote the correct band. The Guidance notes indicate that only one of the boxes can be crossed on each form. The notes also include the following:
  20. In Part 5A of the form "the Clinical Data Set" (the nature of the treatment provided) is indicated by placing a cross by the appropriate options.
  21. Part 9 of the form contains the declarations. In the paper version of the form, the declaration must be signed by the performer. The Guidance indicates that the first declaration must be signed and dated by a qualified dentist, who would usually be the "Performer responsible for the course of treatment". The declaration includes the statement that "the information I have given on this form is correct and complete". There are two boxes in which a cross may be placed by the declaration. The text by the first box says: "All the necessary care and treatment that the patient is willing to undergo will be provided.". The text by the second box states: "All the currently necessary care and treatment that the patient is willing to undergo has been carried out". The Guidance says that both boxes should be crossed save for instances where the performer decides to discontinue the course of treatment. Part 9 also contains the patient declaration. The Guidance indicates that the patient is to sign this part of the form before NHS dental services are provided. The declaration conveys the patient's consent to examination and to the provision of any necessary care and treatment that they are willing to undergo and their agreement to pay the statutory charges for NHS dental services, if applicable. There is then a section which the patient can complete to claim free or reduced cost NHS dental services.
  22. Performers are expected to report on the FP17 Form when a planned course of treatment has been terminated by either the dentist or the patient: clauses 45 and 46 of the GDS Contract and Schedule 3, Part 2 para 8 of the GDS Regulations. A patient may terminate a course of treatment at any time, but the contractor may only do so in certain prescribed circumstances.
  23. Under the GDS arrangements, dentists must provide patients with a treatment plan, known as the FP17 DC form. This is a two-party form of which the top copy is given to the patient and the carbon copy retained by the practice with the patient's records. The FP17 DC indicates both private and NHS treatment.
  24. The PCC heard evidence at Stage 1 of the proceedings between 23 May and 17 June 2022. Counsels' speeches were given on 13 October 2022. Stage 2 was heard between 8 - 16 June 2023. It is unnecessary to refer to the detail of Stage 2, save to note that on 9 June 2023 the PCC announced its Stage 1 findings of fact.
  25. By the time of the Stage 1 hearing, a number of the charges had been deleted and some had been admitted. Further admissions were made during the course of that hearing. In so far as the Appellant admitted some of the probity charges, this was done on the assumption, "there has been no error in capturing the data". The charges used the same numbering as that deployed in Schedule C to identify particular patients and the particular FP17 claims made in respect of them. Charge 3 said:
  26. Charges 4 - 9 contained the probity allegations. Charge 9 alleged that the conduct set out in charges 4, 5, 6, 7 and/or 8 was: (a) inappropriate; (b) misleading; and (c) "was dishonest in that you sought to obtain additional UDAs to which you knew you were not entitled".
  27. Charge 4 concerned "claims you caused or permitted...to be made for treatment that had not been provided as claimed". Charge 4(c) related to Patient 15 and Claim 73. The Appellant admitted and the PCC found that the conduct in charges 4(c) and 4(e)(1) was proved and that Dr Imani had thereby made inappropriate claims. The PCC found that her actions were misleading, but that dishonesty was not proven. The latter finding in respect of charge 4(c) is one of the alleged inconsistencies that Mr Hodivala relies upon. The PCC found that charges 4(f) and 4(g)(2) were not proved.
  28. Charge 5 concerned "claims you caused or permitted...to be made under Band 3 when Band 3 treatment had not been provided or had been provided but under private contract". Charge 5(g) concerned Patient 20 and Claim 95. The PCC found that the conduct set out in charges 5(b), 5(c), 5(d), 5(g) and 5(h) was proved and that Dr Imani had thereby made inappropriate claims. The conduct alleged in most of these charges was admitted, although it was not admitted in respect of charge 5(g). The PCC found that her actions were misleading, but that dishonesty was not proved in relation to these charges, save in respect of charge 5(g). The finding of dishonesty in respect of charge 5(g) is challenged in this appeal. Charge 5(f) was not proved.
  29. Charge 6 concerned "claims you caused or permitted...to be made under Band 2 when Band 2 treatment had not been provided as claimed". Charge 6(f) related to Patient 22 and Claim 107. The Appellant admitted and the PCC found that the conduct set out in charges 6(a), 6(b)(1), 6(b)(2), 6(c)(2), 6(d), 6(e), 6(f) and 6(g) was proved and that Dr Imani had thereby made inappropriate claims. The PCC found that her actions were misleading, but that dishonesty was not proved, save in relation to charge 6(f). The latter finding is challenged in this appeal. In denying that she was dishonest in respect of the admitted conduct in charge 6(f), Dr Imani said in her Schedule of Admissions: "I now accept that this was an inappropriate claim and that submitting claims for incomplete treatment at the end of the contract year is not appropriate, but I did not know that at the time". She also said that she must have forgotten to put a cross against Band 1 in Part 3 of the FP17 to show that only incomplete treatment had thus far been provided. The conduct alleged at charges 6(c)(1), 6(h)(2) and 6(h)(3) was not proved. The finding that dishonesty was not proved in relation to charge 6(a) is a further alleged inconsistency that Mr Hodivala relies on.
  30. Charge 7 alleged: "In respect of the following claims you caused or permitted a claim to be made with incorrect premature dates of completion: (a) Patient 1 and Claim 6; (b) Patient 2 and Claim 12; (c) Patient 6 and Claim 26; (d) Patient 8 and Claim 43; (e) Patient 11 and Claim 50; (f) Patient 22 and Claim 107; and (g) Patient 23 and Claim 109. The Appellant admitted this conduct, but she denied dishonesty on the same basis as she had indicated in respect of charge 6(f). In relation to the charge 7(c) she also said that she could not explain the dates entered and thought it to be "a mistake by whoever completed the form, which I obviously accept responsibility for". The PCC found that her conduct was inappropriate, misleading and dishonest. The findings of dishonesty in relation to these charges are appealed by Dr Imani.
  31. Charge 8 related to instances where it was said that the Appellant had caused or permitted a claim to be made which split a patient's treatment into separate claims when it ought to have formed a single course of treatment. Of these, only charge 8(c) was upheld and dishonesty was not proved in relation to it.
  32. Charges 10 - 34 related to clinical care and it is generally unnecessary to set out the detail. In general the charges alleged both a failure to provide an adequate standard of care and a failure to keep adequate records. It is only necessary to refer to the charges concerning Patient 5. Dr Imani admitted charge 15 which alleged that she had provided him with periodontal treatment by way of a scale and polish on 11 December 2015, and charge 16 that she did not record discussing with him the option of undergoing the periodontal treatment under the NHS or why the treatment was provided privately. Charge 17, which the PCC upheld, alleged that Dr Imani: "did not offer Patient 5 the option of undergoing periodontal treatment under the NHS and your conduct was thereby: (a) misleading; (b) dishonest in that you sought to obtain private payment for treatment to which the patient was entitled under the NHS". The finding on charge 17(b) is challenged in this appeal.
  33. The PCC had a witness statement from the Appellant dated 16 October 2020. The GDC provided: a first statement from Mr Lee dated 12 November 2020 ("Lee 1") and his further statement served on 31 May 2022 ("Lee 2"); a statement dated 13 November 2019 from Hayley Turner, a Dental Case Manager for Professional Standards at NHS England and NHS Improvement ("Turner 1"); a statement dated 19 November 2020 from Alison Jill Graham a Dental Commissioning Manager at NHS England and NHS Improvement ("Graham 1"); and statements from Patient A and Patient 13. I refer to the contents of Mr Lee's statements from para 38 below.
  34. In Turner 1, Ms Turner set out the UDA allocation for each of the relevant years in relation to the Peacehaven and the Hove dental practices and the extent to which these thresholds had been met. In relation to Peacehaven there was a shortfall each year, ranging between 76.54% of the UDA allocation being attained in 2015/2016, to achieving 95.03% of the allocation in 2016/2017 (the first year that Dr Imani could top up with the sub-contracted units from Hove). In relation to Hove, the assigned UDA level was met in most years, although 93.73% was reached in 2014/2015 and 97.53% in 2013/2014.
  35. Graham 1 addressed whether a Dental Provider can claim in the first year, on the basis of incomplete treatment, for a course of treatment started in that financial year but completed in the subsequent year. Ms Graham said that if the treatment cannot be completed within the financial year (by 31 March), the Provider would be expected to continue providing that course of treatment and to submit the claim upon its completion. By contrast, an incomplete claim should be submitted when the course of treatment cannot be completed. Ms Graham also said that, given the lapse of time, she could not recall having a conversation with Dr Imani in around 2014 on how to submit claims, but she "would not have advised any NHS Dental Provider that a course of treatment started in one financial year could not be carried forward (completed) in the next financial year, or that they should submit incomplete treatment submissions on the basis of the financial year".
  36. The PCC was provided with dental records for the relevant patients and Treatment Reports from BSA. As I detail from para 38 below, the FP17 forms submitted by the Appellant were no longer available. In terms of expert evidence, the GDC relied upon three expert reports: Dr Scott's report dated 11 November 2019 in relation to the probity allegations; Dr Vasiliki Karpeta's report dated 14 November 2019 in relation to the availability of NHS treatments; and Dr Stuart Ellis' reports dated 1 November 2018 and 12 November 2019 in respect of clinical care and record keeping. Dr Imani relied upon an expert report dated 16 October 2020 prepared by Dr Abhijit Pal, which responded to each of the GDC's reports. The PCC also received joint expert reports: from Dr Scott and Dr Paul dated 25 and 26 November 2020; from Dr Pal and Dr Karpeta dated 28 November 2020; and from Dr Pal and Dr Ellis dated 28 November 2020.
  37. The PCC heard oral evidence from the majority of these witnesses including from Mr Lee, Ms Graham, Dr Scott, Dr Pal and Dr Imani. I have been provided with transcripts of the evidence given by these witnesses, which I have read, in addition to considering their witness statements and their reports.
  38. Lee 1 exhibited claims data that was said to be drawn from the FP17s submitted by the Appellant. The statement explained that none of the paper FP17s submitted by Dr Imani were available, as the forms were only retained for a period of 14 months and then were shredded after they had been scanned by the imaging team in Newcastle. The exhibits to Lee 1 included NHS4, a spreadsheet which set out the claims data in relation to claims made by the Appellant's practices during the period January 2012 to December 2017. This data included the date when the form was received by BSA, the patient it related to and the payment schedule, the TAD, the TCD, the treatment indicated, and the UDAs claimed. NHS4 was used as the basis for the schedule prepared by Dr Scott for the purposes of his report, which in turn became Schedule C (which, as I have indicated, summarised the data in tabular form in relation to each of the claims that had given rise to a charge). Mr Lee also exhibited NHS5, which included all of the fields relating to Part 3 of the FP17 from for the period April 2014 to December 2017, so that it could be seen whether the treatment had been claimed as incomplete (which NHS4 did not show). The additional information in NHS5 was not available in respect of the period prior to April 2014.
  39. In her witness statement the Appellant complained that it was unfair that she was unable to access the FP17 forms to check their contents. She said that she did not consider the BSA's data to be reliable.
  40. Following concerns that were raised on Dr Imani's behalf regarding apparent discrepancies, the parties agreed that Mr Lee would provide a further statement explaining the data production and answering these specific points.
  41. Lee 2 described the way that the FP17 forms were processed after they were received by BSA. They were scanned by the Scanning Operations Department, thereby creating the date of receipt. The forms were placed in a "Pouch File" with its own unique reference number. The individually scanned FP17s and the Pouch File were then transferred electronically to a branch of BSA known as NHS Dental Services and from there to a third party supplier, who was initially RR Donnelley and then Capita (who both used the same process). The third party supplier would then manually key in the information contained in each individual FP17 form from the Pouch File into an electronic file (the "raw data"). The raw data included the TAD, the TCD, whether there was an "incomplete" marking and the Band. The electronic file containing the raw data was then transferred back to NHS Dental Services and uploaded to its system. Until February 2016 the system used to upload the electronic files was a VME mainframe and thereafter the Compass system was employed. Compass produced monthly schedules for performers and providers and fed the data into the Data Warehouse each month.
  42. Mr Lee also explained that software called Business Objects was used to pull the data from the Data Warehouse for the purposes of NHS4, whereas a software system called eDEN was used in preparing NHS5.
  43. Lee 2 also addressed the reliability of the data. Mr Lee said that under the service level agreement, the third party supplier was required to ensure an accuracy rate of 99.9% every month and was required to report to BSA on this on a monthly basis. The monthly reports were no longer available, but neither supplier had ever reported an accuracy of less than 99.9% during the period in question. The quality assurance was done by comparing a 10% sample of the forms in the scanned Pouch Files with the data that had been manually keyed in from the scanned paper FP17 forms to see if they matched.
  44. Mr Lee also responded to the apparent discrepancies highlighted by the Appellant's solicitors. The largest number of such discrepancies had been identified in relation to the CRD shown, respectively, on NHS4 and NHS5. Mr Lee explained that this was not information taken from the FP17, but related to the date when the form was received by NHS. The Business Objects system took the date of receipt of the form by BSA as the CRD, whereas eDEN took the date of the scanning, which in most instances, but not invariably, was the same. A discrepancy between NHS4 and NHS5 in relation to the data for Patient 11 was also attributable to the different ways in which Business Objects and eDEN pulled the FP17 data when no TDC or date of last visit was shown on the form.
  45. On Day 7 of the hearing (31 May 2022) Mr Lee gave evidence in accordance with Lee 2. (During the evidence NHS4 is also referred to as exhibit 8 and NHS5 as exhibit 10.) Mr Lee was asked to elaborate upon how the accuracy tests were conducted by the third party supplier. He said that the data was re-keyed by a different individual and the two compared. He said that on one occasion a BSA staff member had witnessed the data capturing process, including the quality assurance check. He said that on other occasions the monthly audit reports were taken on a trust basis by BSA. The data was inputted in Columbo and in India.
  46. Mr Lee said that he believed that the schedules that were made available to dental providers and performers, against which they could check the accuracy of the inputted information, included the UDA value for the claim and both the TAD and the TCD. On 22 September 2022 the PCC was provided with an Agreed Fact that the monthly reports issued to dentists during the material period included the patient's name, the band claimed, the UDAs allocated, the patient charge and comments, but did not include the TAD or the TCD.
  47. Following Mr Lee's evidence, the PCC heard submissions from Counsel. Ms Barnfather indicated that although Mr Hodivala's position was that she should make an application to admit Schedule C as it contained hearsay evidence, she declined to do as it was already in evidence before the PCC. She added that it was "in any event admissible". Mr Hodivala then made his submissions, indicating that Schedule C was hearsay, as the data set out therein was prepared by human input and the document was relied upon for the truth of its contents, namely as to what had appeared on the submitted FP17 forms. He accepted that the document was a "business record" within the meaning of section 9(1) of the Civil Evidence Act 1995 ("CEA 1995"), but he drew attention to the disapplying power in section 9(5) of the Act. He also referred to Rule 57 of the General Dental Council (Fitness to Practice) Rules 2006 ("the FTP Rules") and to the Criminal Justice Act 2003 provisions applicable to hearsay in criminal proceedings. He then referred to the caselaw (discussed at paras 93 - 100 below).
  48. In summary, Mr Hodivala submitted that NHS4, NHS5 and Schedule C should not be admitted for the following reasons: in light of the discrepancies that had been highlighted the evidence was "not demonstrably reliable"; it was unfair to admit the evidence because it was not capable of being tested because the FP17 forms had been destroyed; the allegations of dishonesty that Dr Imani faced were potentially career-ending and the contents of NHS4 and NHS5 (and, in turn, Schedule C) were effectively the sole evidence relied upon by the GDC in respect of the alleged dishonesty; and there was no good reason why the FP17s had been destroyed. In addition to the apparent discrepancies that were addressed in Lee 2, Mr Hodivala referred to some typographical errors in the data: in relation to Claim 122 the patient's year of birth was given as both 1961 and 1962; and in two instances a patient's name had been spelt differently. He acknowledged that these were "a handful of examples".
  49. In response, Ms Barnfather referred to section 1(1) CEA 1995 and to rule 57(2) of the FTP Rules (paras 89 - 91 below). She said that the evidence in question related to the processing of data and that there was good reason why the courts permitted business documents to be admitted in evidence as it would be grossly disproportionate to expect all those involved in the processing of the data to give evidence in the proceedings. She submitted that it was in the interests of justice to admit the material and that there was no basis for doubting the method and manner by which BSA had collected the claims data during the relevant period and that there was no basis to doubt its reliability. Furthermore, the errors Counsel had highlighted were "trivial and insignificant and do not invalidate the claims data as a whole". It was not unfair to Dr Imani as the data had been captured from the FP17 forms before they were destroyed. She referred to Mr Lee's evidence regarding the auditing process and the monthly invoices provided to dentists in respect of which "there was no groundswell of concern leading the [BSA] to have any reason whatsoever to want to check the quality of the audit concerning the 99.9% accuracy".
  50. The Legal Adviser then gave advice to the Committee. It is unnecessary to refer to the majority of that advice, as Mr Hodivala does not take issue with it. However, I will set out the passages that bear on his complaints of misdirection:
  51. The Committee then asked Mr Hodivala if he had any comments on the legal advice that had been given. He responded that there was one matter, namely the relevance of Dr Imani's inability to challenge the hearsay evidence. The Legal Adviser indicated that this was "clearly a factor which Mr Hodivala can advance". His additional advice included the following:
  52. Ms Barnfather then said that not only was the data "demonstrably reliable" but that it was not right that the registrant was unable to challenge it because she could and did do so by refence to the patient records, her own recollection and with the support of her own expert. The Legal Adviser then said:
  53. Counsel then indicated that they had no further comments to make on the legal advice that had been given.
  54. The Chairman of the PCC made a statement conveying the decision later the same day (31 May 2022). It is reproduced within the PCC's Determination. No criticism is made of the way that Counsels' submissions were summarised. The PCC's decision was expressed as follows:
  55. When setting out its findings of fact, the PCC began by indicating that it had holistically considered all of the evidence presented to it and had considered each head of charge separately, bearing in mind that the burden of proof rested with the GDC to prove the allegations on a balance of probabilities. The PCC indicated that it had kept in mind "the more serious the allegation the less likely it is to have occurred on the balance of probabilities" and "the more serious the allegation the more cogent is the evidence required to prove it". The PCC said that it had made allowance for the passage of time and that if "there was any doubt about what had taken place owing the passage of time, then this should be decided in your favour". The PCC indicated that it rejected Ms Barnfather's submission that Dr Imani's recollection had been selective; the Committee accepted that where there was an absence of documentation, she had genuinely done her best to assist it in giving her evidence.
  56. When the PCC came to focus on charge 9 and dishonesty it set out some further self-directions. The PCC reminded itself that this was not a case where the GDC relied upon "blind eye dishonesty". It noted that: "by signing the Part 9 declaration of the FP17 form you 'caused or permitted' the relevant claims to be made...It is not disputed that dentists/performers are expected to ensure that any claim made in their name is an accurate representation of the treatment, including the date the treatment was provided, under the NHS". The PCC accepted Mr Hodivala's submission that charge 9(c) "requires the GDC to prove, on a balance of probabilities, that you knew you were not entitled to claim the UDAs claimed for". In relation to the test of dishonesty, the PCC said:
  57. As I have already indicated, the PCC found charge 3 proved, namely that Dr Imani had caused or permitted claims to be made in her name for the UDAs set out in Schedule C. In giving its reasoning, the PCC addressed the reliability of the raw data, saying:
  58. The PCC then summarised and accepted Mr Lee's evidence of the auditing process and his "clear evidence" as to the arrangements by which practitioners could check the accuracy of information about "which FP17 forms have been processed, UDA values, patient charges processed and details of payments". The PCC noted that the PF17 forms were no longer available, but rejected Mr Hodivala's submission that in these circumstances it was "impossible to assess the adequacy or the reliability of either the process or the results". Mr Lee's evidence describing the quality assurance methods and the accuracy of the process was "credible", and the PCC noted the absence of "widespread concerns from the dental profession" over the accuracy of the process of data capture. The PCC acknowledged that Schedule C contained multiple hearsay and that "there was always the potential for error in the data as it involved human input". It referred to the "minor errors drawn to its attention" such as the mis-spelt names. The PCC concluded:
  59. It is necessary to consider the PCC's reasoning in respect of charge 4(c) because, as I have indicated, Mr Hodivala submits that the appealed findings of dishonesty are inconsistent with the finding that dishonesty was not proven in relation to this allegation. A claim had been made for treatment provided on 31 March 2015, but there was no evidence of an appointment or of treatment being given to Patient 15 on that date. This charge did not concern an instance where a claim was made in one contract year in respect of treatment that was in fact provided in the following year.
  60. The PCC considered the experts' suggestion that the claim may have related to treatment provided on 9 April 2015 to be speculative. In her evidence, Dr Imani had suggested that the claim related to emergency treatment provided on either 31 March 2015 or on 19 February 2015. Noting the absence of any supporting records for 31 March 2015, the PCC considered this suggestion to also be speculative. The Committee noted that 19 February 2015 pre-dated the date on the claim form and that there had been no claim made for treatment provided on that date, but accepted that this may have been an emergency appointment at that time. The PCC also accepted that the Appellant was attempting to assist the Committee in piecing the events together. Accordingly, on the Committee's findings this was a situation where treatment claimed for 31 March 2015 may in fact have taken place earlier in the same year on 19 February.
  61. The PCC explained its conclusion on dishonesty as follows:
  62. Whilst not one of the findings that Mr Hodivala focused on, I note that in determining that dishonesty had not been proved in respect of charge 4(e)(1), the PCC concluded that the GDC had not provided cogent evidence and that, on the balance of probabilities, when this claim was made "you did not submit it knowing or believing you were not entitled to the UDAs claimed".
  63. I turn next to charge 5(b) because it is important to appreciate the nature of the Appellant's misunderstanding in respect of completion of the FP17s that the PCC accepted in relation to this allegation. Charge 5(b) concerned a claim made for Band 3 treatment in respect of Patient 8, which had not been provided. The PCC noted that the records indicated that only incomplete Band 1 treatment had been provided between 27 September - 6 December 2013 (the dates given on the claim form). Dr Imani told the PCC that she had forgotten to tick the "incomplete" box on the FP17. The Committee noted that she had explained her understanding of how the form should be completed was that she could "cross Band 3 in Part 5...because Band 3 treatment was planned, and Band 1 in Part 3 as incomplete treatment because I had only conducted Band 1 work...I thought that Part 3 was used to determine how many UDAs were allocated in those circumstances. I now accept that this was an inappropriate claim".
  64. The PCC accepted Dr Pal's oral evidence that he understood why a practitioner could think that Part 5 concerned a course of treatment that they had planned (as opposed to one that they had commenced) and that Part 3 related to the UDAs being claimed for a course of treatment that was incomplete, rather than Part 3 indicating what the patient should be charged (which can only relate to treatment that has actually been undertaken). The PCC accepted Dr Imani's evidence that she had been under a misapprehension as to the inter-relationship between Part 3 and Part 5:
  65. The PCC's conclusion in respect of charge 5(c) is also of note, as the Committee found that dishonesty was not proven because they accepted that the data could be erroneous in respect of this allegation. It was another instance where it was said that the Appellant had not provided any Band 3 treatment during the period for which she had claimed for Band 3 on the FP17. The PCC noted that the data indicated that there was no TCD on the form, Dr Imani's explanation that it must have been submitted in error and Mr Lee's suggestion that either the FP17 was sent without a date or the data inputters may have failed to enter the TCD that was in fact shown on the form. The PCC considered that this may have been "an isolated example" where the "form may have been submitted without a date or that the data inputters may have failed to input the [TCD]".
  66. Charge 5(g) is the first of the dishonesty conclusions that are appealed. This charge concerned Claim 95 in respect of Patient 20. Both Dr Scott and Dr Pal agreed that there was no evidence of any Band 3 treatment having been undertaken during 25 November - 2 December 2016, the period claimed for commencement and completion of the treatment. The patient's dental records indicated that a filling was removed from their UR6 tooth on 25 November 2016. There were no clinical entries for 2 December 2016, but the UR6 filling was listed as still pending in the appointment log for that date. A filling is a Band 2, rather than a Band 3, procedure. Dr Imani's case as set out in her witness statement was that she had placed an inlay on UR6 (a Band 3 procedure) on 2 December 2016. However, in their joint report, Dr Scott and Dr Pal observed that there was no evidence of this.
  67. When she gave oral evidence, Dr Imani said that she now believed that the inlay work she had undertaken was in respect of a different tooth, UR7. There was no documentation that supported the proposition that inlay work to UR7 took place on 2 December 2016, and, to the contrary, the documentation for that date made specific reference to the filling for UR6. Although not covered in his report, when he gave oral evidence, Dr Pal suggested that there appeared to be a change in the restoration of UR7 from composite to metal, as shown in a comparison of x-rays taken on 25 November 2016 and 10 August 2018. Dr Pal described the image of the tooth in the former as looking "a bit different" to the latter, that there was "a different opacity or degree of whiteness" so that he believed "they are two different restorations that we are seeing".
  68. Dr Scott was also asked about these x-rays when he gave evidence. He said of the earlier x-ray of UR7 that "it looks like a composite inlay". When he was then shown the 2018 x-ray he said of UR7 that "this looks like a metal inlay", and he agreed with the proposition that at "some point the inlay has changed between November 2016 and August 2018, changed from a composite inlay to a metal inlay". He observed that Mr Hodivala was "testing my experience now as a clinician rather than a probity expert", but accepted that he "did feel comfortable" answering the question, referring to his 27 years of surgical experience up to 1996. When Ms Barnfather returned to this topic in re-examination, Dr Scott agreed that it was "possible" that the two x-rays were taken at different angles rather than showing different things. He said that he was venturing "into an area where I am not sure that I am completely happy" and concluded this topic by saying: "There appears to be a difference between 646 and 647 [the two images]...The 7 shows what appears to be a composite material on the 647 appears to be a metal and I think this is probably as far as I think I should go".
  69. In explaining why the Committee found that no Band 3 treatment had taken place during the claimed period, the PCC summarised Dr Imani's explanation in respect of UR7 and then said:
  70. Then when it came on to consider dishonesty, the PCC indicated that it found the Appellant's explanation that the claim was for an inlay to UR6 or UR7 to be "implausible". The PCC again indicated that it did not accept Dr Pal's opinion in respect of the x-rays, which were of poor quality. The PCC noted the absence of any evidence in the records that an inlay was fitted on the dates claimed for. It explained its conclusion that dishonesty was established as follows:
  71. I turn next to the finding that dishonesty was not proven in respect of charge 6(a), as this is also relied upon by Mr Hodivala by way of alleged inconsistency in the PCC's conclusions. Charge 6(a) concerned a claim for Band 2 treatment in respect of Patient 3 on 6 August 2013. There was no record of Band 2 treatment having been provided on this date and the PCC found that Dr Imani had not provided any Band 2 treatment for the period claimed. The PCC explained their conclusion that dishonesty had not been proved, as follows:
  72. I note that the PCC's finding regarding the Appellant's genuine misunderstanding regarding Box 3 and Box 5 of the FP17 that led it to find that dishonesty had not been proved under charge 5(b), was also applied by the Committee in making similar findings in respect of charges 6(b)(2) and 6(e).
  73. The conclusion of dishonesty in respect of charge 6(f) is the second finding that is challenged in this appeal. As the PCC noted, the claim was submitted for treatment undertaken between 3 - 31 March 2017 in respect of Patient 22, but that there was no record of any appointment for this patient during these dates. Dr Imani said that the claim was for fillings that were provided on 21 April 2017, that is to say after the date the claim was submitted. She admitted that she had not crossed the box on the FP17 to indicate that the treatment was "incomplete" and accepted that it was an inappropriate claim.
  74. When it turned to consider whether dishonesty had been established, the PCC quoted the explanation that Dr Imani had provided in her witness statement as to her misunderstanding regarding the submission of FP17s at the end of the financial year:
  75. It is necessary to set out the PCC's reasoning for rejecting this professed misunderstanding in some detail:
  76. The admitted conduct in charge 7(a) concerned the submission of a claim form in respect of Patient 1 indicating that the treatment dates were 27 - 31 March 2015, when in fact the claim related to the fitting of a crown which was not started until April 2015 and was fitted in May 2015. In denying that she had been dishonest, Dr Imani relied upon the explanation that the PCC considered and rejected in respect of charge 6(f). The PCC explained its finding of dishonesty in relation to the conduct in charge 7(a) as follows:
  77. Charges 7(b) - 7(g) concerned further instances where FP17s had been submitted in relation to treatment that was said to have taken place shortly before the end of the financial year, but records showed that the treatment had in fact been completed in the financial year that followed, namely on 15 May 2015 in respect of charge 7(b); on 17 April 2012 for charge 7(c); on 8 May 2015 for charge 7(d); on 1 May 2015 for charge 7(e); on 21 April 2017 for charge 7(f)); and on 19 October 2015 in respect of charge 7(g). In finding that the Appellant had been dishonest in each of these instances, the PCC's analysis was analogous to the reasoning that I have set out in relation to charge 7(a).
  78. As I explained at para 32 above, in respect of charges 15 and 16, the Appellant accepted that she had provided Patient 5 with periodontal treatment by way of a scale and polish under private contract on 11 December 2015 and that she did not record discussing the option of undergoing the treatment under the NHS or why the treatment was provided privately. The PCC accepted Dr Karpeta's evidence that Patient 5's records showed that this treatment was necessary and that it was available on the NHS.
  79. Dr Imani's original case in response to this charge was that she had not provided any periodontal treatment privately. However, when she gave evidence and was cross-examined she indicated that she might have provided Airflow treatment for cosmetic stain removal (which would only be available privately), but omitted to record it.
  80. However, the PCC found:
  81. After referring again to the Ivey test, the PCC concluded:
  82. The appeal is brought under section 29(3) of the Dentists Act 1984 (para 1 above). The Court may dismiss the appeal or allow the appeal and quash the decision and substitute a different decision within the range that could have been imposed by the PCC or remit the case.
  83. In Wasu v GDC [2013] EWHC 3782 (Admin) ("Wasu") Haddon-Cave J (as he then was) identified the correct approach for this Court to take as follows:
  84. Sastry v General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 emphasises that the degree of deference to be accorded to the findings of the first instance body will depend upon the circumstances. Giving the judgment of the Court of Appeal, Nicola Davies LJ said:
  85. In Byrne v General Medical Council [2021] EWHC 2237 (Admin) Morris J reviewed the circumstances in which the Court hearing the appeal would interfere with findings of primary fact (as opposed to findings of secondary fact or evaluative judgment). In the passage cited below he referred to Thomas v Thomas [1947] AC 484, Libman v General Medical Council [1972] AC 217, Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691, Casey v General Medical Council [2011] NIQB 95, Perry v Raleys Solicitors [2019] UKSC 5 and R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin):
  86. In Ivey Lord Hughes explained the legal test for dishonesty as follows:
  87. This test applies to regulatory proceedings: Photay v General Dental Council [2023] EWHC 661 (Admin) at para 44.
  88. Given the nature of the Ivey test, the registrant's actual state of mind is a critical issue for the first instance body to resolve in determining whether the conduct in question is honest or dishonest: see for example para 77 in GDC v Williams [2023] EWCA Civ 481.
  89. Rule 57 of the FTP Rules provides:
  90. Accordingly, the Committee has a discretion to admit hearsay evidence that would be admissible in civil proceedings pursuant to the CEA 1995; and also a broader discretion to receive evidence that would not be admissible in civil proceedings where it considers it to be "helpful to the" Committee and "in the interests of justice" to do so.
  91. The material provisions of the CEA 1995 are as follows:
  92. Accordingly, the default position pursuant to section 9(1) of the CEA 1995 is that records of a business may be received in evidence without further proof, subject to the power contained in subsection (5) to disapply this provision. It is unnecessary to consider what amounts to the "records of a business" in any detail, as Mr Hodivala accepts that the PCC was correct in treating the contents of NHS4, NHS5 and Schedule C as the records of a business.
  93. The Courts have considered a number of appeals where it was alleged that hearsay evidence was unfairly admitted, including contentions that the procedure adopted by the disciplinary committee breached the fair trial requirements of Article 6 of the European Convention on Human Rights ("ECHR"). The caselaw was reviewed by Linden J at paras 58 - 65 of El Karout v Nursing and Midwifery Council [2020] EWHC 3079 (QB) ("El Karout"), where he referred to Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216 ("Ogbonna"), R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 ("Bonhoeffer") and Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 ("Thorneycroft"). Mr Hodivala relies upon these authorities.
  94. Article 6(1) provides that: "In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Article 6(3)(d) provides that everyone charged with a criminal offence has the right to "examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
  95. In Ogbonna the Court of Appeal refused to grant permission to appeal to the Nursing and Midwifery Council ("NMC") from the High Court's finding that the Committee had misdirected itself in deciding to admit a witness statement from a Ms Pilgrim, the registrant's team leader. The NMC's case was centrally dependent upon this evidence; her account was disputed and it was accepted that there had been a difficult relationship between the two women. The NMC had made no effort to arrange for Ms Pilgrim to be available to attend the hearing for cross-examination. Rule 31(1) of the NMC (Fitness to Practice) Rules Order of Council 2002 was similar to rule 57(2) of the FTP Rules, save that the text referred to "the requirements of relevance and fairness" rather than to admission of the evidence being "helpful" to the Committee and "in the interests of justice". As Linden J summarised in El Karout:
  96. Rule 34 of the General Medical Council (Fitness to Practice) Rules Order of Council 2004 provided that where evidence would not be admissible in criminal proceedings in England, the Committee or Panel should not admit such evidence unless satisfied after due enquiry that its admission was "desirable". In Bonhoeffer the High Court allowed the registrant's application for judicial review, finding that the Panel's decision to admit the hearsay evidence in question had been irrational and a breach of his Article 6(1) right to a fair hearing. The evidence concerned video-taped police interviews with a young man who lived abroad, who was the single source of most of the allegations of sexual misconduct faced by the claimant. The young man had indicated he was willing to travel to attend the hearing in person, but the GMC decided not to call him. The principles relating to the right to cross examine were summarised by Stadlen J at para 109 as follows:
  97. In Thorneycroft the High Court quashed the Panel's decision that the registrant's fitness to practice was impaired by reason of misconduct, finding that there were a number of irregularities that had a material bearing on the findings of fact that were made. Neither of the two principal complainants had attended the hearing to give oral evidence and there were suggestions that they had personal antipathy towards the registrant. Mr Andrew Thomas QC sitting as a Deputy High Court Judge ("DHCJ") found that the Panel had erred in deciding to admit their statements as evidence, in particular as it had done so without having first undertaken a careful balancing exercise in respect of the relevant matters.
  98. The DHCJ summarised the principles at para 45 of his judgment as follows:
  99. At para 56 of his judgment, Mr Thomas identified the considerations that the Panel should have taken into account. These included: whether the statements were the sole or decisive evidence in support of the charges; the nature and extent of the challenge to their contents; whether there was any suggestion that the witnesses had reason to fabricate their accounts; the seriousness of the charges and the potential impact on the registrant's career; and whether there was a good reason for the non-attendance of the witnesses.
  100. In El Karout Linden J found that the Committee had erred in determining that it was fair to admit the statement of Patient C, a significant witness who had failed to attend the hearing. The errors he identified in the Committee's reasoning included: concluding that the evidence of Patient C was not the sole or decisive evidence; failing to consider whether their account was demonstrably reliable or whether there was some means of testing its reliability (in circumstances where there were question marks over its reliability); not reading the statement before making its decision on admissibility; and failing to refer to the seriousness of the issues faced by the registrant (paras 77 and 81).
  101. In Mansaray v Nursing and Midwifery Council [2023] EWHC 730 (Admin) ("Mansaray"), Stacey J dismissed the registrant's appeal from the Panel's decision upholding allegations of misconduct and finding that his fitness to practice was impaired. She concluded that the Panel was entitled to admit hearsay evidence from a witness, Patient A, regarding allegations of inappropriate sexual behaviour towards him. In summary, the Panel had conducted a careful evaluation of the relevant factors before deciding to admit the evidence (paras 48 - 56). As I return to (at paras 103(vi) and 121 below) Mr Hodivala places reliance upon the following paragraph of Stacey J's judgment:
  102. The Court also rejected the proposition that including the evidence in the hearing bundle before admissibility had been determined was a procedural irregularity; the Panel had to consider the hearsay evidence in order to rule on its admissibility (para 64).
  103. During his oral submissions, Mr Hodivala accepted that the contents of Schedule C was a business record and, as such, that it would have been admissible in civil proceedings under the CEA 1995. However, he submitted that the admission of the hearsay evidence in Schedule C was unfair and constituted a breach of Article 6(1) of the ECHR, so that the PCC was wrong to admit or to fail to exclude this evidence. He relied upon the following contentions in particular:
  104. Mr Hodivala emphasised the PCC's findings that dishonesty had not been proved in relation to a number of the charges faced by the Appellant and that the Committee's reasoning involved an acceptance that she was very busy at the time, that her record keeping was poor and her administration chaotic and that she did not properly check the forms, for example in relation to charges 4(c) and 6(a) (paras 59 - 61 and 71 above). Furthermore, in relation to charge 5(b) the PCC had accepted that the allegations of dishonesty were not proven in light of Dr Imani's explanation as to how she had genuinely misunderstood what she was required to enter on the FP17 form. He submitted that in light of these findings it was inconsistent and wrong for the PCC to find these other allegations of dishonesty proved, particularly as they were also based on a misunderstanding regarding completion of the FP17 forms. He said that there was no evidential or rational basis for the different conclusions reached and that the circumstances were identical.
  105. Mr Hodivala also criticised the PCC's reasons for rejecting Dr Imani's explanation as to why she had completed the FP17 form as she had (paras 74 - 75 above). It was unfair of the Committee to rely upon Jill Graham's evidence that she would not have advised Dr Imani to complete the form in this way (para 75 above). The Appellant's evidence was not that this was what Jill Graham had told her to do, rather her evidence was that this was how she had understood Ms Graham's advice at the time.
  106. Mr Hodivala drew attention to the wording of charge 9: "you sought to obtain additional UDAs to which you knew you were not entitled" (emphasis added). This was not a case about blind-eyed recklessness. He submitted that the PCC failed to apply the subjective limb of the Ivey test, in that the Committee failed to find that the Appellant knew that the declaration on the relevant FP17 form was wrong and/or that the data submitted in the form was wrong and that she was not entitled to make a claim in the way that she had done. He said that the PCC wrongly focused on the objective limb of the Ivey test. In this regard, Mr Hodivala referred specifically to evidence given by the Appellant as to the extent to which others at the practices had a role in the completion of the forms.
  107. Mr Hodivala indicated that he did not pursue the allegation in his skeleton argument that it was never put to Dr Imani that she was not telling the truth in relation to the misunderstanding that she described.
  108. Mr Hodivala said that the PCC had failed to have regard to Dr Scott's evidence concerning the changed appearance of the patient's UR7 (para 68 above); this clearly supported Dr Pal's opinion, but it was not referred to at all in the Committee's reasoning (para 69 above).
  109. Secondly, Mr Hodivala criticised the PCC's assessment that in this instance there was no evidence of the planned treatment (para 70 above). He submitted that the PCC failed to refer to the fact that there must have been an FP17 signed and dated by the patient for this claim to have been made, and that this would have set out the treatment planned by Dr Imani. In this regard he referred to an answer given by Mr Scott when he was being asked in cross-examination about the FP17 form and the Guidance, where he indicated that an FP17 signed by the patient was "[t]he best evidence that there is a [treatment] acceptance date".
  110. An allegation that the PCC had failed to apply the subjective limb of the Ivey test in relation to its finding on this charge was not pursued.
  111. Firstly, Mr Hodivala submitted that the Committee proceeded on an erroneous factual basis, namely that there were three further occasions where the Appellant had provided private periodontal treatment to Patient 5 (para 80 above). The GDC had in fact withdrawn charges in relation to 14 November 2014 and 24 July 2015 and there was no allegation in relation to 12 February 2016. Secondly, he said that the PCC's reasoning showed that it reversed the burden of proof in relation to this charge in stating that: "... that patient should have been offered the available treatment on the NHS. The Committee considers that there is no satisfactory evidence that you did this". Thirdly, he contended that there was no evidence to rebut Dr Imani's case that the patient had wanted to have the treatment privately on this occasion; there was no evidence called from the patient and she had provided him with treatment on the NHS on other occasions.
  112. As its terms make clear, Rule 57(2) of the FTP Rules confers a discretion on the PCC in relation to the admission of evidence that it considers it "helpful" and "in the interests of justice" to hear (para 89 above). I will initially consider the respects in which the Appellant contends that the PCC misdirected itself in exercising its discretion to admit / not to exclude the contents of Schedule C.
  113. Firstly, it is said that the PCC wrongly placed the burden on Dr Imani to show that the evidence should be excluded, rather than on the GDC to show that it should be admitted. I reject that submission for the reasons that I now identify.
  114. The advice given by the Legal Adviser, which I have set out at para 50 above, did not distinguish between whether the PCC should admit the Schedule C evidence or exclude the evidence, both phrases were used interchangeably. However, crucially, the advice made clear that the central question for the PCC in the exercise of its discretion was "what you are considering is effectively fairness", "You should make a determination, whether in those circumstances it is fair to admit this evidence", and "you consider that it is in the interests of justice for that evidence to be admissible. Essentially that means fairness" (emphasis added).
  115. The authorities have drawn no distinction between the "interests of justice" criterion in the FTP Rules and the requirement of "fairness" in the NMC's Fitness to Practice Rules (paras 89 and 95 above) and Mr Hodivala accepts that fairness was indeed the key touchstone for the Committee when exercising this discretion. The PCC indicated that it accepted the Legal Adviser's advice (para 54 above) and there is nothing to indicate that it failed to follow this. This approach does not involve placing an onus on the registrant to establish that evidence should be excluded. The PCC's reasoning shows that in assessing fairness it had regard to and carefully balanced the relevant considerations that Counsel had relied upon in their respective submissions. In particular the PCC addressed: the importance of the evidence; whether it was the sole evidence with regards to the allegations of dishonesty; that it was a business record and, as such, generally admissible in regulatory proceedings; the reliability of the information; whether Dr Imani would have the opportunity to challenge the evidence; and why the FP17 forms were no longer available (para 54 above).
  116. As the Schedule C evidence was already before the PCC, it is unsurprising that the terminology of both admission and exclusion was used, but it made no practical difference to the PCC's examination of whether, overall, it was fair to permit the GDC to rely on this evidence. Inevitably the PCC had to consider Schedule C and the evidence from Mr Lee relating to its provenance before it could resolve this issue (El Karout at para 100 above and Mansaray at para 102 above) and so nothing turns on the fact that it was already before the Committee at this juncture.
  117. During the hearing, Mr Hodivala emphasised a particular passage in the Legal Adviser's advice, which he said wrongly indicated that the burden lay with the Appellant, namely: "I realise that these documents are already in evidence, but that does not seem to me that that makes much difference to the right of Mr Hodivala to make this application because if he can persuade you that the documents should not be received in evidence then of course you must make a ruling notwithstanding the fact that you have already seen them". However, rather than taken in isolation, this one sentence needs to be considered in light of the entirety of the advice given by the Legal Adviser, which covers three and a half pages of a single line spaced transcript and includes the passages that I have set out at para 50 above. Read as a whole, I am satisfied that the Legal Adviser did not indicate that there was an onus on Dr Imani to establish that the Schedule C material should be excluded. Furthermore, the central point being made in this particular sentence was one favourable to Dr Imani, namely that the PCC should still give full consideration to the admissibility of the material, notwithstanding that it was already before the Committee. Whilst I do not place it at the centre of my reasoning, I also derive some support from the fact that Mr Hodivala raised no objection to this aspect of the Legal Adviser's advice at the time, although he was given the opportunity to comment (para 51 above); and this point was not thought to be sufficiently significant to appear in the detailed Skeleton Argument that he prepared for the hearing.
  118. Mr Hodivala also submitted more specifically that the PCC wrongly placed the onus on Dr Imani to show that the Schedule C material was unreliable, rather than assessing whether the GDC had shown that it was reliable, as required by para 45 of Thorneycroft, in turn cited with approval in El Karout (paras 93 and 98 above). In considering this submission, I proceed on the basis most favourable to Dr Imani, namely that the Schedule C material was indeed the sole or decisive evidence against her in relation to the dishonesty allegations. Nonetheless, I am unpersuaded by it.
  119. The PCC were given a very clear direction by the Legal Adviser in this regard, to the effect that the evidence must either be demonstrably reliable or capable of being tested (para 52 above). This direction accurately reflected the earlier authorities.
  120. It is also apparent that the PCC were alive to this issue. In summarising Mr Hodivala's submissions, the PCC noted: "He submitted that you have the right to a fair trial and that the evidence should be demonstrably reliable and capable of being tested for it to be admitted". In summarising Ms Barnfather's submissions, the PCC noted: "she referred the Committee to Mr Lee's oral evidence in which he attested to the reliability of the data". Then in setting out its decision, the PCC explained why it considered that the data in Schedule C was reliable: "...the Committee noted Mr Lee's oral evidence regarding the auditing of the claims data and that out of 10 per cent of the date audited, 99.9 per cent was found to be accurate. The Committee considered that a 10 per cent sample was a reasonable amount to show that the data was reliable".
  121. Mr Hodivala drew attention to a subsequent passage in its reasoning, where the PCC said: "The Committee, therefore, do not accept that the evidence is demonstrably unreliable..." (para 54 above). However, again, the PCC's reasoning needs to be read as a whole; importantly it is clear from its earlier reasoning, referred to in my previous paragraph, that the PCC was satisfied by the evidence led by the GDC that the data was indeed reliable. I regard the sentence highlighted by the Appellant as no more than an isolated example of loose language. This position is further reinforced by the Committee's subsequent reasoning in respect of charge 3, when it came on to consider the weight to be attached to the Schedule C evidence. I have set out the material parts of this reasoning at paras 57 - 58 above. It is quite apparent from this that the Committee was fully satisfied as to the reliability of the evidence, for the reasons that it identified. In the circumstances the PCC did not apply the approach that Stacey J described as "wrong" in Mansaray (para 101 above).
  122. For the reasons I have explained, I do not consider that the PCC did place an onus on Dr Imani to satisfy the Committee that the evidence should be excluded, however, I note for completeness that the issue of admissibility arose in a context where the material was accepted to be a record of a business and that, accordingly, pursuant to section 9 of the CEA 1995 it would have been admissible in civil proceedings, unless it had been shown by the party objecting to the evidence that the default position should be disapplied (paras 91 - 92 above).
  123. Lastly, in terms of alleged misdirections, Mr Hodivala criticised a passage in the Legal Adviser's advice where he indicated that the admission of hearsay always involved the inability to challenge the evidence (para 51 above). I do not consider that there is anything in this point. Read in context, the Legal Adviser was clearly referring at this point to the inability to challenge hearsay evidence directly (by cross-examining the maker of the statement). He went on to expressly advise the Committee to take account of the extent to which the accuracy of the material in Schedule C was capable of being tested by Dr Imani (para 52 above), and the PCC duly considered this point (para 54 above). I also note that Mr Hodivala did not raise this as an issue at the time, although invited by the PCC to comment (para 53 above).
  124. If, as I have concluded, the PCC did not misdirect itself as to the correct legal approach that it was to take to the question of admissibility, Dr Imani faces an uphill struggle in challenging the Committee's decision. As Mr Hodivala accepted during the hearing, absent any misdirection, the exercise of a discretion is not open to challenge on the basis that a party disagrees with the conclusion reached or with the weight that the decision-maker attached to particular factors. It is not suggested here that irrelevant factors were considered or that relevant factors were left out of account. Accordingly, Dr Imani would have to show that the PCC reached a conclusion as to the fairness of admitting the evidence that a reasonable Committee in their position could not have arrived at. Furthermore, in so far as the PCC's conclusion was based in part on an assessment of the credibility of Mr Lee's evidence, for the reasons I have identified at paras 83 - 85 above, it is very difficult to challenge such a conclusion of primary fact on appeal, save in the limited circumstances identified in those authorities.
  125. Accordingly, whilst Mr Hodivala developed various criticisms of Mr Lee's evidence and of the auditing process itself, it was for the PCC to evaluate this and it was plainly open to it to accept his evidence and to conclude that his description of the auditing process and its outcomes satisfied the Committee that the data was reliable. The additional suggestion that it was irrational for the Committee to accept that an auditing process which tested a 10% sample was a sufficient indicator of reliability, is hopeless. The point was not raised at all in Mr Hodivala's detailed written and oral submissions to the PCC; and at this late stage he provided no foundation, statistical or otherwise, for the proposition that it was outside the bounds of reasonableness for the Committee to be satisfied by this evidence.
  126. Mr Hodivala also submitted that the PCC was wrong to conclude that the Appellant could test the accuracy of the Schedule C data in any meaningful way without the FP17 forms. I am also unpersuaded by this submission. Firstly, the ability to test the evidence was characterised in Thorneycroft as an alternative basis for admitting the evidence, if the Panel was not satisfied of its reliability; here, as I have already addressed, the PCC was satisfied as to the reliability of the data. Secondly, in any event, the PCC was entitled to take into account, as it did, that this was a situation where Dr Imani was still able to present her own detailed evidence about each of the patients and treatments, that she was able to rely upon their relevant dental records and that she was assisted by the detailed reports and evidence of Dr Pal. The present case is quite different from the situations in Ogbonna, Bonhoeffer and in Thorneycroft where heavily contested witness evidence, central to the case and whose reliability (and in some instances, honesty) was seriously in question, was admitted in documentary form.
  127. I also accept that it was rational for the PCC to rely upon the fact that other dentists had not raised concerns over the accuracy of the inputted data. For present purposes I will assume that this formed part of the PCC's reasoning on admissibility (although it is only referred to in relation to charge 3 and the weight to accord to Schedule C: para 58 above). Whilst the schedules that were circulated to the dentists did not include the TAD and the TCD (para 46 above), it was still significant that dentists had not raised concerns about the accuracy of the data that was shown on the schedules, given that this reflected material from the FP17 forms that was inputted at the same time as the TAD and TCD and as part of the same process (paras 41 - 45 above).
  128. Finally, the PCC was entitled to regard the errors in the data as "minor" (para 58 above), given they amounted to a few instances of misspelt names and the like (para 48 above) and Mr Lee had provided an explanation for the earlier apparent discrepancies raised on behalf of Dr Imani (para 44 above).
  129. Accordingly, I am satisfied that the PCC's decision to admit the Schedule C evidence was one that was open to it and involved no error of law, procedural irregularity or any other basis for characterising it as wrong. I have already noted that the way the Committee approached charge 3 underscores the careful conclusion that it arrived at that the material was reliable (paras 57 - 58 above) and I also note that in the isolated instance of charge 5(c), where the data did appear to be unsatisfactory, in that there was no TCD entered for the relevant claim, the PCC was, rightly, willing to give Dr Imani the benefit of the doubt (para 65 above).
  130. I will first address the alleged inconsistency in the PCC's conclusions regarding the dishonesty charges (para 104 above).
  131. I am satisfied that the PCC's reasoning shows that there was a clear distinction between the findings that it made in respect of charges 4(c) and 6(a) (on the one hand) and its findings on charges 6(f) and 7(a) - (g) (on the other). It is also clear that the misunderstanding concerning the completion of the FP17 forms that Dr Imani relied upon in relation to charge 5(b) (and charges 6(b)(2) and 6(c)) was distinct from her alleged misunderstanding that was rejected by the PCC in respect of charges 6(f) and 7(a) - (g). Accordingly, the inconsistency complaint is without foundation.
  132. As I explained at paras 59 - 61 above, in relation to charge 4(c), the PCC accepted that the treatment that was claimed for 31 March 2015 may have taken place on 19 February 2015 and the fact that it was not recorded as having occurred on the February date may have been due to the Appellant's chaotic record keeping. Accordingly, this was not an instance where it was established that treatment that had been claimed had never in fact been provided, nor was it an instance where a claim was made before the end of the contract year in relation to treatment that was only provided in a later year. Similarly, charge 6(a) involved an instance where the PCC was satisfied that dental treatment had taken place on 6 August 2013 (the date stated in the claim), albeit the records did not show that it was Band 2 treatment, as claimed (para 71 above).
  133. By contrast, in respect of charges 6(f) and 7(a) - (g), Dr Imani accepted that she had not provided the claimed treatment during the relevant contract year, but said that she believed that unless she claimed for it by 31 March in the year that the course of treatment had been started, she would be unable to do so. Accordingly, this was a specific scenario in which the focus was, necessarily, upon whether or not the PCC accepted Dr Imani's explanation (as I further address from para 135 below). Moreover, the PCC was fully aware of its earlier findings that certain dishonesty allegations had not been proved and the basis of the same. Indeed, in finding that dishonesty was established in respect of charge 6(f), the Committee referred to this expressly, clearly distinguishing the position (para 75 above); as it had also already done in respect of charge 5(g) (para 70 above).
  134. I have explained at para 63 - 64 above, that the misunderstanding that Dr Imani relied upon in respect of charge 5(b) related to the inter-relationship between Part 3 and Part 5 of the FP17 form and whether she could insert in Part 5 treatment that was only at the planning stage and treatment in Part 3 that had not actually been undertaken. The PCC was prepared to accept that whilst she had been careless, Dr Imani genuinely held the belief that she described and thus was not dishonest. By contrast, as I discuss in more detail below, the PCC did not believe the explanation that Dr Imani advanced in respect of charges 6(f) and 7(a) - (g), that although she had not provided the claimed treatment during the relevant contract year, she believed that as the course of treatment had started, unless she claimed for it at that stage, she would be unable to do so. These were two distinct alleged misunderstandings and the PCC was perfectly entitled to arrive at differing conclusions in respect of them. Mr Hodivala is simply incorrect to say that the evidential position was "identical" in respect of all these charges.
  135. Secondly, I address the contention that the PCC unfairly or wrongly rejected Dr Imani's explanation as to the misunderstanding that she was under in respect of these charges (para 105 above). I begin by highlighting that although Mr Hodivala's submission focused upon the Committee's reliance upon the evidence of Ms Graham, it is apparent that this was just one of a number of factors that undermined the credibility of the Appellant's explanation, as I discuss below. I also remind myself again of the limited circumstances in which a finding as to credibility made by the first instance tribunal, who had the benefit of seeing and hearing the relevant witnesses giving their evidence, can be overturned on appeal (paras 83 - 85 above).
  136. Ms Graham gave evidence on Day 6 of the hearing and was cross-examined by Mr Hodivala. The following exchanges took place at pages 106H - 107B of the hearing transcript:
  137. In her witness statement the Appellant had said: "It was my understanding that if you started a course of treatment in one contract year then you couldn't carry it forwards to the next year. I was reinforced in this view by a conversation I had with Jill Graham...in about 2014 in which she told me that I had to claim for the work before 31st March in each contract year" (para 74 above; emphasis added).
  138. In her evidence-in-chief on Day 11 of the hearing, Dr Imani elaborated on her account of the alleged conversation with Ms Graham as follows (page 384D-H of the transcript):
  139. She was cross-examined about this aspect of her account by Ms Barnfather on Day 14 of the hearing, where the following exchanges occurred (pages 474D - 475B of the transcript):
  140. It was plainly appropriate for the PCC to consider whether it accepted Ms Graham's evidence as to what she would and would not have said to Dr Imani, and then to evaluate the Appellant's account in light of that and the other relevant evidence. I also note that there was at least a shift in emphasis in Dr Imani's accounts. In her witness statement and in the version put in cross-examination by Mr Hodivala, it was said that Dr Imani had been specifically told by Ms Graham that she had to claim before the end of the financial year (31 March) in order to be paid and to obtain the UDAs. It was therefore pertinent for the PCC to consider whether it accepted Ms Graham's evidence that she would only have said this in relation to claims that were completed by 31 March. By the time she gave evidence Dr Imani was suggesting that Ms Graham simply referred to late submitted claims that would not be paid and that she, Dr Imani, had taken from this that all claims had to be made before 31 March, the end of the financial year.
  141. It is also important to appreciate that the question of what was or was not said by Ms Graham was only one part of the factual matrix for the PCC to evaluate when considering the credibility of the explanation given by Dr Imani. I note the following, in particular:
  142. In short, there was ample basis to support the PCC's conclusion that Dr Imani's explanation was "implausible and inherently unbelievable" (para 75 above). Whilst its decision referred to the majority of these points, it was unnecessary for the PCC to list every reason why it did not accept the Appellant's credibility in relation to this aspect of her case. The PCC was entitled to form an overall view and the view that it formed is unassailable.
  143. Thirdly, I turn to the Appellant's contention that the PCC failed to apply the subjective limb of the Ivey test. For the reasons given below, I reject that contention as well.
  144. It is accepted that the PCC gave itself a correct self-direction as to the Ivey test (para 56 above). It is also clear that when the PCC came to consider each of the dishonesty allegations, it focused upon Dr Imani's subjective state of belief. During the hearing, Mr Hodivala accepted that the Committee had applied the subjective limb of the Ivey test in making its findings of dishonesty in respect of charges 5(g) and 17(b). It is also quite clear that where the PCC concluded that dishonesty had not been established, this was arrived at after considering the evidence as to the Appellant's subjective state of mind, as I have summarised in relation to charge 4(c) at para 61 above, charge 4(e)(1) at para 62 above, charge 5(b) at para 64 above and charge 6(a) at para 71 above.
  145. Furthermore, the PCC's stated reasoning in finding dishonesty proved in respect of charge 6(f) shows that the Committee correctly applied the first limb of Ivey, ascertaining the Appellant's subjective belief, rather than simply focusing on the objective limb of the test, as Mr Hodivala suggests. As I have already discussed, Dr Imani advanced a positive explanation as to why she had made claims with incorrect premature dates of completion (showing a TCD by 31 March, when in fact the treatment was outstanding at the time), actions which she now acknowledged were wrong. She relied upon a particular misunderstanding, which she claimed that she held at the time. The PCC examined this alleged misunderstanding, but rejected Dr Imani's account, finding that her professed belief was "inherently unbelievable". It therefore followed that Dr Imani had not told the truth about the belief that she held at the time when she made the claim. In these circumstances, the PCC, unsurprisingly, went on to conclude that it: "did not find it credible that you did not know that you were not entitled to claim in the financial year for the work you had not yet completed". In other words, the PCC were satisfied that the Appellant had submitted the claim on a false basis and that she did know that she was not entitled to make the claim in question at the time that it was made. The PCC further reinforced this in indicating it had determined that: "it would have been your genuine belief at the time that you would not have been entitled to claim for Band 2 treatment that had not been completed in that financial year" (para 75 above). It was only after making this finding as to the belief held by the Appellant at the time of making the claim, that it went on to consider the objective limb of the test, namely whether this conduct would be considered dishonest by the standards of ordinary and decent people (para 75 above).
  146. I have discussed the PCC's reasoning in respect of charge 6(f). It is clear from the decision that the same line of reasoning was then employed in a shorter form in respect of charges 7(a) - (g), with cross reference to the Committee's reasoning on charge 6(f) (paras 76 - 77 above). It is apparent, for example, from the PCC's reasoning in respect of charge 7(a), that its focus was again upon Dr Imani's subjective state of knowledge, and that the Committee found that she knew when she submitted the claim that she did so: "despite knowing that you were not entitled to claim prematurely for incomplete work in that financial year" (para 76 above).
  147. I have summarised the allegation and the PCC's findings in respect of charge 5(g) at paras 66 - 70 above. The Appellant contends that the PCC failed to have regard to Dr Scott's evidence concerning the changed appearance of the patient's UR7 (para 108 above). The basis for this submission is that the PCC did not refer to it expressly in the reasons that it gave in respect of this charge.
  148. However, it is trite law, as Mr Hodivala accepts, that a first instance decision-maker is not to be taken to have overlooked a particular piece of evidence, simply because it is not referred to in the decision. Moreover, in this instance there was a logical reason for the PCC to refer to Dr Pal's evidence in respect of the appearance of UR7 (rather than Dr Scott's evidence), given that Dr Pal was the originator of the proposition that there was an alteration to the restoration to the UR7 and it was this that provided the justification for the Band 3 claim. Additionally, Dr Scott caveated his assessment (para 68 above). In other words, Dr Pal's evidence in relation to the appearance of the patient's UR7 was the high point from Dr Imani's point of view.
  149. In any event, it was for the PCC to assess the evidence it had heard from the experts and, importantly, Mr Hodivala accepted during the hearing that the Committee was entitled to form its own view as to the quality of the x-rays. It therefore follows that the PCC was entitled to concluded, as it did, that their quality was too poor for the Committee to accept Dr Pal's explanation (para 69 above).
  150. In the circumstances there is no basis for this Court to infer that the PCC failed to have regard to Dr Scott's evidence in respect of the x-rays or that it reached an unfair or impermissible conclusion in rejecting Dr Pal's evidence on this point. Furthermore, I remind myself that the most that the experts could say from the comparison of the appearance of the UR7 in the x-rays was that there had been an apparent change from a composition inlay to a metal inlay at some point between November 2016 and August 2018 (para 68 above). Accordingly, even if the PCC had accepted this evidence from Dr Pal and Dr Scott, it did not follow that the inlay work had taken place on 2 December 2016 (the date when Dr Imani said the Band 3 treatment had been undertaken and the TCD given in the claim), as opposed to at some later point before the August 2018 x-ray. Furthermore, the other evidence did not support the proposition that Band 3 work was undertaken to the UR7 on 2 December 2016. Dr Imani had changed her account between her witness statement and her evidence as to the tooth in question and the work that had been undertaken (paras 66 - 67 above); there was no documentation supporting the proposition that inlay work to the UR7 was undertaken on 2 December 2016; and the documentation that did exist for that date indicated an appointment for a filling for the UR6 (paras 67 and 69 above). In all the circumstances, the PCC was fully entitled to reject the Appellant's explanation regarding inlay work to UR7 as "implausible" (para 70 above).
  151. Mr Hodivala's second point was that in concluding that there was no evidence that the Band 3 treatment had been considered, planned or started during the claim period, the PCC had ignored the fact that the FP17 form would have been signed by the patient, thereby, it is said, indicating their agreement to the treatment referred to on the form. I also reject this contention.
  152. The PCC concluded that there was: "no satisfactory evidence that the treatment claimed for was planned, started or even considered during the claim period" (para 70 above, emphasis added). This was an assessment that the Committee was entitled to make, having heard and considered all the evidence and taken into account the points that I have referred to in the previous paragraph. As I have already indicated, the fact that the PCC did not mention the patient's signature on the FP17 does not mean that it was not taken into account. The PCC was entitled to give that aspect the weight that it saw fit. It did not follow from this that Band 3 treatment of the kind that the Appellant now claimed, had been discussed and agreed with the patient. Moreover, in their Joint Expert Report, both experts had agreed that there was no evidence of Band 3 treatment having been undertaken during the dates of the claim. After rejecting the suggestion subsequently raised in oral evidence regarding the x-rays and alleged work in December 2016 to UR7, the PCC were entitled to proceed on the basis that this was indeed the position.
  153. In turn, the absence of any satisfactory evidence that Band 3 treatment had been planned, started or even considered at the material time, led the PCC to permissibly conclude that Dr Imani knew that she was claiming for additional UDAs to which she was not entitled and to distinguish this situation from the findings that dishonesty had not been proved in respect of charges 4(c) and 6(a) (para 70 above).
  154. I have summarised the allegation and the PCC's findings in respect of charge 17(b) at paras 78 - 81 above.
  155. Ms Barnfather accepted that the PCC was in error in saying that the Appellant had provided private periodontal treatment to Patient 5 on the three other occasions that it listed. However, she submitted that this made no material difference to the Committee's conclusion, for reasons that I accept. The correct evidential position was that the documentation indicated that private periodontal treatment had been planned (rather than undertaken) on the dates referred to. Accordingly, this position also undermined Dr Imani's original case that she had only ever provided this patient with treatment on the NHS (para 79 above). There was no indication in the documentation that the option of NHS treatment had been offered on these three other occasions either.
  156. I also reject the contention that the PCC placed the burden of proof on Dr Imani to disprove the allegation of dishonesty. The Committee was well aware where the burden of proof lay and referred to it on numerous occasions throughout its decision as it set out its findings on the various charges. In this instance, the PCC rejected the suggestion that Dr Imani raised in her evidence, that only Airflow treatment was provided and, as such, the work could only have been done privately. The PCC found that the patient's BPE scores indicated that periodontal disease was present and that accordingly this was treatment that should have been offered on the NHS (paras 79 - 80 above). Having rejected Dr Imani's explanation, the PCC then considered whether there was any evidence that the treatment was indeed offered on the NHS, concluding that there was no evidence to that effect. Indeed Dr Imani had admitted charge 16, namely that she did not record discussing with Patient 5 the option of undergoing the treatment under the NHS. After reminding itself of the Ivey test and further explaining why it rejected the Appellant's Airflow explanation as "implausible", the PCC concluded: "on a balance of probabilities, that despite being aware that this patient was entitled to NHS treatment, you decided to charge him privately, without making him aware that the treatment was available on the NHS and that you did this most likely for personal gain". This chain of reasoning did not involve placing the burden of proof on Dr Imani at any stage. Moreover, the PCC referred in terms to being satisfied on the balance of probabilities that the allegation was established in setting out its conclusion. Inevitably the Committee analysed the explanation that Dr Imani had put forward, but that did not involve any reversal of the burden of proof; the Committee rejected her explanation and explained why.
  157. As to Mr Hodivala's third point (para 110 above), the Committee arrived at a legitimate conclusion, having evaluated the evidence overall and having explained its reasoning, as I have already described. The absence of a direct account from Patient 5 did not preclude the conclusion that was reached. Having heard the evidence, including Dr Imani's account, the PCC was entitled to reject her claim that the patient had wanted to pay privately for this treatment, which was available on the NHS, characterising this assertion as "vague and not based on any recorded discussion" and as "implausible" (para 80 above).
  158. For the reasons that I have set out above, I do not consider that the PCC's decision was wrong, unjust or that it involved any procedural or other irregularity. I have explained why I reject both Ground 1, concerning the Committee's decision to admit the hearsay evidence in Schedule C, and Ground 2, relating to the dishonesty allegations that were found proved. In the circumstances, Ground 3, regarding the sanction imposed, does not arise. This was a careful and detailed decision; charges were considered individually, the evidence in respect of each was evaluated and the PCC's reasoning was clear and thorough.

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