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Ground 5(iii)
Ground 5(iii)
This ground relates to the PCC’s findings in relation to the claim for Patient I’s treatment. This is different to the other claims for treatment dealt with under Ground 5 because before the PCC Mr Mobasseri contended (as he does on this appeal) that not only was he not dishonest, but also that the claim for treatment in respect of Patient I was not inappropriate and not misleading. In other words, he contends that the claim for Patient I’s treatment was a valid claim for treatment he actually carried out. The PCC found that it was inappropriate, misleading and dishonest.
As recorded by the PCC:
“The claim in respect of Patient I was alleged to be inappropriate because you claimed for an emergency course of treatment on 1 June 2018 in circumstances where it is alleged that the treatment in fact formed part of an existing planned course of treatment to redo a failed root canal which had been carried out by another dentist.”
There was no doubt that Patient I was given treatment on 1 June 2018. The issue was what were the circumstances of that treatment. Mr Mobasseri submitted a claim in relation to this treatment as Band 1 (Urgent) treatment. The GDC contended (and the PCC found) that the treatment on that date in fact formed part of an existing planned course of treatment, and therefore should not have been the subject of a separate claim.
The PCC recorded that:
At an appointment on 14 March 2018 with Patient I, Mr Mobasseri had carried out an examination, an inlay prep, taken an x-ray of the UR2 and identified that the UR2 required re-root canal treatment.
The patient returned for an appointment on 1 June 2018 for re-root canal treatment on UR2. The contemporaneous notes for that 1 June appointment recorded that the patient continued to experience pain in respect of the failed previous root canal treatment and stated: “Next appt [appointment] – pt [patient] to come back for 2nd stage of root canal treatment.”
When Mr Mobasseri transferred the contemporaneous notes from the Word documents into SoE some 2 years later, he made significant changes to what had been recorded, stating that this was an “emergency appointment” and that the patient had attended in “severe pain”. He deleted the reference to the patient returning for the second stage of root canal treatment and replaced it with: “Next appt – pat to come back to see if tooth can be saved.” He also added the following: “A course of antibiotics recommended, patient confirms not being allergic to any antibiotic, amxycillin 500mg 21 capsules for 7 days 3 times a day”
The PCC pointed out that some elements of Mr Mobasseri’s version of events had only emerged in his oral evidence. It relied on the contemporaneous version of the notes. It said that the addition of the detail about antibiotics had been added without there having been any contemporaneous record of antibiotics having been prescribed and said Mr Mobasseri could not have recorded that detail of the prescription some 2 years after the event. It also noted his change in evidence about how long the appointment on 1 June lasted. As a result, the PCC concluded:
“In the Committee’s judgment, having carefully examined Patient I’s records and the explanations you gave in evidence for her treatment, the Committee did not consider that Patient I attended you as a separate emergency appointment on 1 June 2018 to justify a Band 1 (urgent) claim under the relevant regulations. The Committee determined that it is more likely that you had retrospectively amended the records in SoE to characterise it as an emergency appointment to justify the additional claim you had made to the NHS for emergency treatment. You knew that the claim was inappropriate and such conduct would clearly be regarded as dishonest by the standards of ordinary decent people.”
Mr Mobasseri’s account had been that he knew Patient I very well – she had previously been his daughter’s live-in nanny (although by this point in time that was no longer the case) and at some point he said she had done some administrative work at the Camden Practice – and that he recalled the appointment well. He confirmed he had seen Patient I on 14 March, and noted that there had been a previous root canal treatment which needed redoing. He said when he saw her again, at his house (where she had come to help with the cleaning), on 1 June she said she had been to a dentist in Romania for treatment, but the pain was now worse. He said his wife told him to drive Patient I to the practice, which he did, and then dealt with it as an emergency treatment.
In his oral evidence in chief he said he “spent about an hour and a half, two hours with that emergency” and thought it was fair to charge for an emergency.
His account was that the contemporaneous note on 1 June was made by his nurse. (Footnote: 4) He said that she must have assumed that the next appointment would be for the second stage of root canal treatment, suggesting that a dental nurse would not always see the complexity of a re-root canal treatment, and that he would have to make a clinical judgment.
Mr Mobasseri’s ground 3 challenge, based on the reversal of the burden of proof, also applies to the PCC’s determination in relation to Patient I. However, Mr Horne’s skeleton argument on this appeal stated: “The appellant accepts that there is nothing on the face of the determination that directly demonstrates a reversal of the burden of proof for this claim.” That is indeed the case. There is nothing in the PCC’s reasoning in relation to Patient I which suggests it did not apply the burden of proof in the way in which it had set out at paragraphs 8 and 9 of its determination.
However, the challenge was still made on this basis in relation to Patient I stating:
“…if … the PCC did so [i.e. applied a reverse burden of proof] in relation to Patients B, C, D, F, and K, it is likely that the Committee approach his [Mr Mobasseri’s] evidence in relation to this patient in the same manner.”
However, that does not follow. The reasoning of the PCC is evident from its determination in respect of each patient (or group of patients) separately. I have set out above the reasons why it seems to me that the PCC’s reasoning in respect of Patients B, F and K involved a reversal of the burden of proof. The same cannot be said of its reasoning in relation to Patient I. There is no “read across” to be done in that respect.
There is no error of principle in the way in which the PCC approached determination of the issues in relation to Patient I. In truth, this is a direct challenge to the primary findings of fact made by the PCC about the treatment that took place on 1 June 2018. In respect of the particular points made by Mr Mobasseri in relation to this:
Mr Mobasseri submits that the PCC wrongly found that the notations in the contemporaneous notes for 1 June 2018 were Mr Mobasseri’s rather than those of his dental nurse. It is right that the PCC described the notes as “your contemporaneous notes for the appointment” in which “you recorded…”. And it is right that it was Mr Mobasseri’s evidence that his nurse made the notes on the laptop whilst he attended to the patient. However, that does not appear to me to undermine the PCC’s point. The emphasis in this part of the PCC’s determination was on the fact that these were the contemporaneous notes taken at the appointment, as compared to the notes which Mr Mobasseri transferred into SoE some two years later, when he changed the critical detail. The PCC spent much time at the hearing and in its determination considering the “system” (such as it was) for note-taking at Mr Mobasseri’s appointments and no doubt had well in mind who was doing the typing during the course of the appointments. Moreover, although it may have been the nurse at the laptop keyboard taking the notes, they were Mr Mobasseri’s notes of the appointment – that was his contemporaneous record of what took place – as Mr Mobasseri confirmed as a general point to the tribunal in its questioning of him, he checked the notes that had been made by his dental nurses. Moreover, despite Mr Mobasseri’s protestations to the contrary in his oral evidence it is difficult to see how his dental nurse would have not recorded things differently if the appointment had been as Mr Mobasseri contended it had been before the PCC.
Mr Mobasseri contended that the PCC failed to consider his explanation about the clinical uncertainty over the next step in treatment. This does not take things any further. His evidence about this was not particularly clear, and appears to have amounted to saying that his dental nurse would not always see the complexity of a re-root canal treatment, and that he would have to make a clinical judgment about what to do next. In other words, this was a way in which he was seeking to explain away the notes, and suggest that his dental nurse might not have written things down correctly. It is a facet of the point considered at (i) above. But, as I have said, the PCC had well in mind who was making the notes at the time and that Mr Mobasseri checked them (and, indeed, then made the claim for the emergency treatment). Mr Mobasseri’s evidence about this may have been his attempt to explain away the notes, but it was not convincing, and not surprising that the PCC did not feel the need to deal with it expressly.
Mr Mobasseri submitted that the PCC failed to “consider the paucity of any financial motive”. Whilst he accepted that the presence of financial gain is not a prerequisite to a finding of dishonesty, he submitted that the absence of such a motive is a powerful factor against the dishonesty alleged in this case.
In relation to this, the PCC said that it was likely he had retrospectively amended the SoE records to characterise it as an emergency appointment to justify the additional claim made to the NHS for emergency treatment. In his skeleton argument, Mr Horne said that the dishonest gain of 1.2 UDAs would have equated to additional gross financial income of about £40 (which was not disputed by Ms Tahta). One may think that, in the grand scheme of things, that it not a huge amount of money. But, nonetheless, it would be a financial gain and, even at that level, the PCC was entitled to regard it as such.
Moreover, the battle ground in relation to the claim for Patient I was slightly different to that for the other Ground 5 Patients where the PCC found dishonesty. There was no case that emergency treatment had been claimed for in error. Mr Mobasseri’s defence in respect of Patient I was not that a claim that should not have been put through was made in error. Rather, it was that the claim was entirely appropriate. The claim was made deliberately, for emergency treatment, not long after the 1 June appointment. It is difficult to see that, once the PCC had concluded that the appointment was not for emergency treatment as a matter of fact, it could have found otherwise than that the claim for emergency treatment had been submitted dishonestly. Seeking a financial motive was, therefore, not a factually central inquiry in relation to this patient.
Mr Mobasseri also suggested that the PCC was “influenced in finding dishonesty by the errors made in their appropriate to the cases of Patients B,C, D, F and K.” I do not accept that. There is nothing in the section of the determination dealing with Patient I that suggests that the PCC was influenced by what it had found in respect of other patients. Moreover, the PCC stated at the end of its consideration of the Ground 5 matters that, in “reaching its findings of fact in relation to the claims in Schedule 8, (Footnote: 5) the Committee examined each claim individually …”, (Footnote: 6) and there is no reason to doubt that was what it had done.
Mr Horne’s skeleton argument also drew attention to “how emotional [Mr Mobasseri] became [in his oral evidence] when refuting” the suggestion of financial motivation for this claim. That seems to me to be a good illustration of a point where an appeal court must be very wary indeed before seeking to draw any inference, or other assistance, that the PCC did not itself draw. Detecting particular emotion from a transcript is far from straightforward, still less seeking to attribute to any such emotion what that might mean in terms of the credibility of the evidence being given at the time. I do not see how I can place any weight on such a point (at least in this case by reference to the part of the transcript to which I was directed for this point) in assessing whether the PCC was correct in its assessment of Mr Mobasseri’s evidence.
In his oral submissions, Mr Horne made two additional points that had not been made in his skeleton argument in seeking to undermine what the PCC had found in relation to this issue. Neither of them advance matters.
Mr Horne criticised the PCC’s statement that:
“You also initially stated in oral evidence that the appointment would have lasted nearly two hours but changed your account when it was put to you that this would have been unusually long for an emergency appointment.”
He said that was a mischaracterisation, and that it had not been put to Mr Mobasseri that nearly two hours would have been “unusually long” for an emergency appointment. However, Mr Mobasseri did give inconsistent evidence about this. When first asked about it in his oral evidence, he said he spent “an hour and a half, two hours with that emergency…”. Later, when asked by the tribunal he said it was 45 minutes to an hour, although it is fair to say that does not appear to have been prompted by any suggestion that his first account would have been unusually long for an emergency appointment. But that does not seem to me to have any impact on the PCC’s reasoning on this point.
Mr Horne also referred to retrospective addition by Mr Mobasseri of the information about antibiotics to the record, and the PCC’s statement that he could not have recalled the detail of the prescription some two years later. In his oral evidence, Mr Mobasseri had said that the Camden Practice dispensed antibiotics, and that the dose and recipient were recorded on a spreadsheet which he must have gone back to look at when retrospectively adding the detail to his notes. However, there was no direct evidence of such a spreadsheet beyond Mr Mobasseri’s own word, and this was not an explanation he had produced before giving his answers in cross-examination, and nor had he sought to find and produce a copy of the spreadsheet in question (which, when asked, he said would be difficult because he had sold the Camden Practice), such that his evidence could not properly be tested. It was, therefore, somewhat flimsy evidence and unlikely to have made any difference to the PCC’s decision on this point even if it had referred to it. But, in any event, even if he was right in having such a spreadsheet to refer to when retrospectively adding to the notes, all that would do would explain the addition to the notes. No one suggested that it would mean that the appointment must have been an emergency one.
As a result, none of the criticisms of the PCC’s finding on this point were good ones. This was a factual finding of the PCC, where there is no problem with its approach to the issue, and its finding was certainly not “plainly wrong or so out of tune with the evidence properly read as to be unreasonable”. It was not a finding that no reasonable tribunal could have reached. I therefore dismiss the appeal on ground 5(iii).