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

When setting out its findings of fact, the PCC began by indicating that it had holistically considered all of the evidence presented to it and had considered each head of charge separately, bearing in mind that the burden of proof rested with the GDC to prove the allegations on a balance of probabilities. The PCC indicated that it had kept in mind “the more serious the allegation the less likely it is to have occurred on the balance of probabilities” and “the more serious the allegation the more cogent is the evidence required to prove it”. The PCC said that it had made allowance for the passage of time and that if “there was any doubt about what had taken place owing the passage of time, then this should be decided in your favour”. The PCC indicated that it rejected Ms Barnfather’s submission that Dr Imani’s recollection had been selective; the Committee accepted that where there was an absence of documentation, she had genuinely done her best to assist it in giving her evidence.

When the PCC came to focus on charge 9 and dishonesty it set out some further self-directions. The PCC reminded itself that this was not a case where the GDC relied upon “blind eye dishonesty”. It noted that: “by signing the Part 9 declaration of the FP17 form you ‘caused or permitted’ the relevant claims to be made...It is not disputed that dentists/performers are expected to ensure that any claim made in their name is an accurate representation of the treatment, including the date the treatment was provided, under the NHS”. The PCC accepted Mr Hodivala’s submission that charge 9(c) “requires the GDC to prove, on a balance of probabilities, that you knew you were not entitled to claim the UDAs claimed for”. In relation to the test of dishonesty, the PCC said:

“When determining whether your conduct amounts to dishonesty, it should apply the test set out in the case of [Ivey]. It should first consider the actual state of your knowledge or belief as to the facts at the time. It should then go on to consider whether your conduct would be viewed as dishonest by the objective standards of ordinary and decent people. There is no requirement that you must appreciate that what you have done was dishonest by those standards...”