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

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.

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.

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).

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).

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.

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.

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.

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.

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”.

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).

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).

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).