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

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.

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”.

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”.

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:

“Dr Pal’s opinion is that the evidence from this can be seen from the x-rays and photos in the records. The Committee had sight of the x-rays and photos referred to by Dr Pal. However, it considered that the quality of these was poor and did not accept Dr Pal’s explanation.

The Committee considered that the records did not contain any evidence that an inlay was fitted to the UR7 during the dates claimed for...The Committee noted that there was an appointment for 2 December 2016, which is a 20-minute appointment marked ‘pending’ for ‘filing-composite’. The Committee determined that there are no treatment notes for this appointment and no satisfactory evidence that an inlay was placed on that day.

In conclusion, the Committee preferred and accepted Mr Scott’s opinion that no Band 3 treatment was provided during this period.”

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:

“The Committee has previously accepted your explanation in relation to other charges for making an incomplete claim where treatment had been planned but not completed within the claim period. However, in relation to this charge, there is no satisfactory evidence that the treatment claimed for was planned, started, or even considered during the claim period.

Considering the evidence holistically, even taking account of the passage of time and considering the chaotic and disorganised nature of your practice and reminding itself of the burden of proof, the Committee is satisfied, on the balance of probabilities, that you knew you were claiming for additional UDAs to which you were not entitled. This is not a claim for incomplete Band 3 treatment and it is inherently unbelievable that you did not know when the claim was submitted that you had not planned or started the treatment you were claiming for. The Committee also considers that you had a motive for making the claim which was you own financial gain. The Committee then determined that this conduct would be viewed as dishonest by the objective standards of ordinary and decent people.”