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

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.

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.

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.

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).

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).

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).