AC-2023-LON-002171 - [2024] EWHC 132 (Admin)

I have summarised the allegation and the PCC’s findings in respect of charge 17(b) at paras 78 - 81 above.

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.

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.

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).