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

Following Mr Lee’s evidence, the PCC heard submissions from Counsel. Ms Barnfather indicated that although Mr Hodivala’s position was that she should make an application to admit Schedule C as it contained hearsay evidence, she declined to do as it was already in evidence before the PCC. She added that it was “in any event admissible”. Mr Hodivala then made his submissions, indicating that Schedule C was hearsay, as the data set out therein was prepared by human input and the document was relied upon for the truth of its contents, namely as to what had appeared on the submitted FP17 forms. He accepted that the document was a “business record” within the meaning of section 9(1) of the Civil Evidence Act 1995 (“CEA 1995”), but he drew attention to the disapplying power in section 9(5) of the Act. He also referred to Rule 57 of the General Dental Council (Fitness to Practice) Rules 2006 (“the FTP Rules”) and to the Criminal Justice Act 2003 provisions applicable to hearsay in criminal proceedings. He then referred to the caselaw (discussed at paras 93 – 100 below).

In summary, Mr Hodivala submitted that NHS4, NHS5 and Schedule C should not be admitted for the following reasons: in light of the discrepancies that had been highlighted the evidence was “not demonstrably reliable”; it was unfair to admit the evidence because it was not capable of being tested because the FP17 forms had been destroyed; the allegations of dishonesty that Dr Imani faced were potentially career-ending and the contents of NHS4 and NHS5 (and, in turn, Schedule C) were effectively the sole evidence relied upon by the GDC in respect of the alleged dishonesty; and there was no good reason why the FP17s had been destroyed. In addition to the apparent discrepancies that were addressed in Lee 2, Mr Hodivala referred to some typographical errors in the data: in relation to Claim 122 the patient’s year of birth was given as both 1961 and 1962; and in two instances a patient’s name had been spelt differently. He acknowledged that these were “a handful of examples”.

In response, Ms Barnfather referred to section 1(1) CEA 1995 and to rule 57(2) of the FTP Rules (paras 89 - 91 below). She said that the evidence in question related to the processing of data and that there was good reason why the courts permitted business documents to be admitted in evidence as it would be grossly disproportionate to expect all those involved in the processing of the data to give evidence in the proceedings. She submitted that it was in the interests of justice to admit the material and that there was no basis for doubting the method and manner by which BSA had collected the claims data during the relevant period and that there was no basis to doubt its reliability. Furthermore, the errors Counsel had highlighted were “trivial and insignificant and do not invalidate the claims data as a whole”. It was not unfair to Dr Imani as the data had been captured from the FP17 forms before they were destroyed. She referred to Mr Lee’s evidence regarding the auditing process and the monthly invoices provided to dentists in respect of which “there was no groundswell of concern leading the [BSA] to have any reason whatsoever to want to check the quality of the audit concerning the 99.9% accuracy”.

The Legal Adviser then gave advice to the Committee. It is unnecessary to refer to the majority of that advice, as Mr Hodivala does not take issue with it. However, I will set out the passages that bear on his complaints of misdirection:

“The question for you, therefore, is whether you should make a ruling that a particular document or group of documents should not be received in evidence.

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 that notwithstanding the fact that you have already seen them, you won’t take them into consideration.

......

This is not a case where there is an individual witness statement, this is a case concerning a business record. Nevertheless, it seems to me as your Legal Adviser, that you ought to seize the opportunity of considering the admissibility of this evidence with, as it were, open arms, since if the registrant is complaining that this evidence should not have been received you should certainly deal with it.

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Clearly, Mr Hodivala is making a case here that you should consider at this juncture whether to admit this hearsay evidence, effectively, as it is in front of you, you should determine whether to exclude it, if Ms Barnfather is not actually making an application to admit it.

When you consider whether or not you should exclude it or putting it the other way, whether you should admit it, what you are considering is effectively fairness. The statutory provision and the authorities that I have referred to demonstrate that you have a discretion. The question for you is how you should exercise that discretion.

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...You should make a determination, whether in those circumstances it is fair to admit this evidence.

...broadly the position is that as Ms Barnfather indicated that in civil proceedings business record evidence is normally admitted but it can be excluded, and it is right to say that under section [sic] 57(2) other evidence can be admitted after consultation with the Legal Adviser, and you consider that is it in the interests of justice for that evidence to be admissible. Essentially that means fairness.”

The Committee then asked Mr Hodivala if he had any comments on the legal advice that had been given. He responded that there was one matter, namely the relevance of Dr Imani’s inability to challenge the hearsay evidence. The Legal Adviser indicated that this was “clearly a factor which Mr Hodivala can advance”. His additional advice included the following:

“On the one hand [Mr Hodivala] is able to say, ‘Well my client cannot challenge this evidence’ which is true of course of any hearsay evidence, that is the problem with hearsay. But on the other hand, it seems to me that as a committee you are entitled to consider the provenances of this hearsay evidence when considering whether or not it should be admitted. You will have to weigh...the two matters in the balance and then decide which way you are going to come down, I would suggest.”

Ms Barnfather then said that not only was the data “demonstrably reliable” but that it was not right that the registrant was unable to challenge it because she could and did do so by refence to the patient records, her own recollection and with the support of her own expert. The Legal Adviser then said:

“Ms Barnfather’s observation fits nicely into the way in which Mr Hodivala has expressed himself, it must either be demonstrably reliable or capable of being tested...She makes the point that it is capable of being tested and is indeed challenged by Dr Imani in her evidence.”

Counsel then indicated that they had no further comments to make on the legal advice that had been given.