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

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.

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.

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).

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).

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.

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.

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).