AC-2025-LON-000160 - [2025] EWHC 3006 (Admin)

The central issue under ground 1 was whether Mr Mobasseri had conducted BPEs for each of Patients 1-15. The PCC found (under charge 1(a)) that Mr Mobasseri had failed to adequately carry out a BPE in relation to those patients. Mr Mobasseri had admitted the charge as a failure to record (thus admitting what he had done was not adequate), but contended he had carried out a BPE at each of at the appointments in question.

The PCC explained in its decision what a BPE involved, as follows:

“A BPE involves using a probe to measure pocket depths to screen for periodontal disease, with a score of between 0-4* to be recorded for each sextant of the mouth containing at least two teeth. …. The Committee accepted Mr Bateman’s opinion that you were under a duty to carry out a BPE at each appointment, as set out in the Clinical Examination & Record-Keeping Good Practice Guidelines from the Faculty of General Dental Practice (UK) (the ‘FGDP Guidelines’). Mr Bateman’s opinion was that carrying out a BPE is vital, as commencing orthodontic treatment in the presence of periodontal disease can lead to the disease being significantly worsened.

The FGDP Guidelines state:

“Careful assessment of the periodontal tissues is an essential component of patient management. The Basic Periodontal Examination (BPE) is a simple and rapid screening tool that is used to indicate the level of further examination needed and provide basic guidance on treatment needed. These BPE guidelines are not prescriptive but represent a minimum standard of care for initial periodontal assessment. BPE should be used for screening only and should not be used for diagnosis.”

The Guidelines explain that “For patients with codes 0, 1 or 2, the BPE should be recorded at every routine examination” and “more detailed periodontal charting is required” for patients with a higher BPE score indicating the presence of periodontal disease.

The Committee accepted the opinion of Mr Bateman that, whilst not prescriptive, any departure from the FGDP Guidelines would need to be clearly justified in the clinical records. The Committee also accepted the opinion of Mr Bateman and satisfied itself with reference to the guidelines that recording the scores is an intrinsic part of undertaking a BPE and would be necessary for the purposes of treatment planning.”

Mr Bateman also explained in his evidence to the PCC a little more about what the different scores signified. He summarised the position in his oral evidence as follows:

“So, generally, as I say zero is indicative of complete health. 1 is indicative of some inflammation in that area of the mouth there. 2 is indicative of plaque retention factors. 3 is indicative of some pocketing, which is a symptom of periodontal disease (inaudible) attachment. And 4 is indicative of a greater degree of periodontal disease.”

Ground 1 as formulated focussed on the PCC having said that it could not identify any contemporaneous record of BPEs having been carried out for any of these patients, and contended that there had been evidence that BPE scores were recorded in Mr Mobasseri’s contemporaneous notes. It was not pursued in that way at the hearing before me. Rather, Mr Horne took as his starting point the following “central facts underpinning Charge 1(a)”:

“(1)

Mr Mobasseri did not document [BPEs] in his contemporaneous Word records for Patients 1 to 15. That failure occurred once for each patient at consultations between 14 May 2019 (Patient 15) and 02 March 2020 (Patient 4).

(2)

Mr Mobasseri admitted those failures.

(3)

When Mr Mobasseri transferred the Word records to the R4^[ (Footnote: ²)^] system on various dates in 2020, he included BPE scores for each of those consultations.

(4)

Mr Mobasseri admitted that he failed to record the BPE scores in the Word document for each patient, but denied that he failed to undertake the examination.”

The submissions Mr Horne made on behalf of Mr Mobasseri recognised that the PCC’s findings on this charge weighed various factors in the evidence in reaching its determination that Mr Mobasseri failed to undertake a BPE for each patient as alleged. However, he drew attention to particular passages of the evidence of Nurse A and Mr Mobasseri which he said should have led the PCC to conclude that Mr Mobasseri had in fact conducted BPEs. In particular, he relied upon:

Mr Horne accepted that Nurse A also gave evidence that, when Mr Mobasseri called out the BPE, she would always write it down. However, he noted that Nurse A was the dental nurse for only 3 of the 15 consultations in question, and he noted that some of the Word records for the other group of patients (namely for certain appointments for Patients A and J) did record BPE scores.

Mr Horne also noted that the PCC considered whether Mr Mobasseri might have mentally noted the BPE scores, rather than calling them out to be recorded by his dental nurse, but it rejected that possibility because (a) Mr Mobasseri’s own evidence was that he would call them out to be recorded by the dental nurse, and (b) Mr Mobasseri’s evidence was that he would always check the records made by his dental nurse. In relation to the second of those points, Mr Horne challenged the security of a finding that Mr Mobasseri would always check the records by referring to other evidence given by Mr Mobasseri of a more equivocal nature, for example:

“Yes, but I didn't instruct [Dental Nurse A] to put it actually in the Software of Excellence in that moment whereas I was hoping that it would happen because I was always reading out -saying the numbers but that was something which I kind of didn't check if it was really in the - written down. That is what I must have missed.”

and

“That is where my shortcoming has come to place where I was definitely taking the measurements. I was doing my BPE but I kind of - that is my shortcoming where I make - I did not make sure that they would appear under a Word document recorded by the nurse. I took it a bit lightly, I would say, which is a mistake.”

As a result, it was submitted that there was evidence from both Nurse A and Mr Mobasseri that he had undertaken BPEs, that the fact that records for other patients included BPE scores suggested that Mr Mobasseri was inconsistent in calling out the scores, and that Mr Mobasseri’s failure to check the Word notes made by his dental nurse meant that “his own error in mentally noting the score but not calling it out, or the nurse’s error in not documenting the score, went uncorrected.” Mr Horne contended that, as a result, the PCC’s finding that Mr Mobasseri had failed to carry out a BPE in respect of these patients was wrong.

This, as presented at the appeal hearing, is not a challenge on the basis of principle or based on a contention that the wrong approach was adopted by the PCC, nor that something crucial was missed or something irrelevant taken into account. It is a simple challenge to a finding of primary fact, of the sort that Mr Horne recognised presented a high hurdle to an appellant. As the authorities referred to above have emphasised, an appeal court should be slow to interfere with such findings. There seems to me to be no basis at all to interfere with this finding.

There was ample evidence before the PCC on which it was able to base its finding of fact that Mr Mobasseri had not carried out BPEs for these patients. I do not attempt to (or need to) set it out in full, but the following matters provide the gist:

Moreover, neither the suggestion i) that Mr Mobasseri would carry out a BPE but (contrary to his own evidence) not call out the scores, nor ii) that the nurses would (sometimes) not write down the scores as they were called out (and then that Mr Mobasseri would not notice, in whatever checking he did, that the scores had not been recorded), was particularly plausible (nor supported by direct evidence).

As I noted above, Mr Mobasseri relied upon evidence Nurse A gave in response to questions from the PCC that he take a BPE whenever he did a check-up, and that “if I am remembering correctly” that included for Invisalign patients (as I have set out in the fuller extract quoted above). However, that was immediately followed by her evidence in response to the next question that when Mr Mobasseri undertook a BPE, he would call out the scores, and that whenever he did so she would record it: “whenever he does that I record it. If he doesn’t, I don’t.” That evidence, coupled with the fact that on the occasions in question the notes did not record it, suggest that her evidence that Mr Mobasseri always did a BPE (if that was the right way of reading it) was overstated or mistaken. Moreover, immediately after that, the GDC’s counsel asked in re-examination for clarification:

“Q. …did I understand you correctly because I think I was having difficulty hearing your answer just now, are you saying that with some patients he would do a BPE, can I ask you - I’m going to ask you this question in parts. So can you answer that first?

A. Yes, whenever I do the check-up, it wasn’t like with all patients, no. Maybe (inaudible) do it, I don’t know, but whenever he tells me I do the BPEs.

Q. So when he does the BPE and says it out loud, you would always write it down?

A.

Yes.”

The result is that Nurse A’s evidence on whether Mr Mobasseri always carried out a BPE was at best unclear, but suggesting he did not always do it. But in any event, her evidence was clear and consistent that when Mr Mobasseri called out BPE scores, she would always write them down. Her evidence as to the regularity with which she thought Mr Mobasseri carried out BPEs was not, therefore, helpful to Mr Mobasseri.

As I have noted above, Mr Horne also challenged the PCC’s reliance on Mr Mobasseri’s evidence that he had confirmed he would always check the records made by his dental nurse. He acknowledged that Mr Mobasseri had indeed said in his oral evidence that he would go back and check the notes made by his nurse after an appointment, but suggested that the overall weight of his evidence was that he did not do so properly. However, Mr Mobasseri’s evidence in the passages relied on by Mr Horne in this respect was not definitive, but more along the lines of saying that he had read out BPE numbers, and where they were not written down that must be because he failed to make sure the nurse recorded them and then must have missed the fact that they were missing when checking the notes. It was not compelling evidence, and it does not surprise me that that the PCC did not refer to it expressly. In any event, whether or not he was checking the notes with care, the clear weight of the evidence was that he was not carrying out BPEs on those occasions when the scores were not recorded (for the reasons I have set out above).

In short, the PCC’s finding that Mr Mobasseri did not, on the occasions in question, carry out a BPE was entirely supported by the evidence. Ground 1 of this appeal does not get near to surmounting the hurdle required on a challenge to such findings of fact. It certainly cannot be said that the finding was plainly wrong, or out of tune with the evidence so as to be unreasonable, or that there was no evidence to support the finding. Nor are any of the other descriptions of circumstances in which an appeal court might interfere with a finding of primary fact apt here. Ground 1 of the appeal must fail.