Dr Shala Imani v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 31 January 2024 |
| Neutral Citation | [2024] EWHC 132 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002171 |
[2024] EWHC 132 (Admin)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: AC-2023-LON-002171
CO/2635/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jamas Hodivala KC (instructed by Gunner Cooke LLP) for the Appellant
Ms Lydia Barnfather (instructed by General Dental Council) for the Respondent
Hearing dates: 21 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal by Dr Shala Imani from the decision of the General Dental Council Professional Conduct Committee (“PCC”) of 16 June 2023 suspending her registration as a dentist with the General Dental Council (“GDC”) for 12 months. The appeal is brought under section 29(3) of the Dentists Act 1984. Pursuant to CPR 52.21(3), the court will allow the appeal if the decision was wrong or unjust because of a serious procedural or other irregularity in the proceedings below.
The allegations faced by Dr Imani concerned the period 2012 – 2018. During that time she undertook private and National Health Service (“NHS”) dental work from her two dental practices in Peacehaven and in Hove. As part of her NHS contract for each practice, she had a yearly target to submit a certain amount of Units of Dental Activity (“UDAs”).
In summary, the PCC found that Dr Imani had caused or permitted claims to be made for UDAs relating to treatments that had not in fact been provided as claimed. This included claiming for treatments that had not taken place and submitting claims with incorrect premature dates of completion. In total, the PCC found that in 23 instances her conduct was inappropriate and misleading and that in nine of those instances, including all of the charges relating to claims with incorrect premature dates of completion, her conduct was dishonest, as she sought to obtain UDAs to which she was not entitled. In addition, the PCC found that in one instance she had acted dishonestly in failing to offer a patient treatment under the NHS, as opposed to exclusively under a private contract. The PCC also determined that Dr Imani failed to provide an adequate standard of care in relation to ten patients and that she failed to provide an adequate standard of record keeping in relation to 12 patients. In turn, the PCC found that the proven allegations amounted to misconduct and that her fitness to practice was impaired by virtue of the proven dishonesty.
The Appellant appeals the ten findings of dishonesty. Her Grounds of Appeal are that the PCC was wrong and erred in:
“1. Admitting or failing to exclude, multiple hearsay evidence regarding Treatment Acceptance Dates and Treatment Completion Dates contained in Schedule C;
2. Finding dishonesty proved in relation to the allegations 5(g), 6(f), 7(a) – (g) and 17(b);
3. Determining a sanction of suspension for a period of 12 months.”
Mr Hodivala KC confirmed at the outset of the hearing that: (a) Ground 1 is only relied on in respect of the ten dishonesty findings, and that none of the other findings made by the PCC are challenged; and (b) Ground 3 only arises if the appeal succeeds in relation to Grounds 1 and/or 2; it does not raise any free-standing issue regarding the sanction imposed.
As I explain in para 38 below, Schedule C (the subject of Ground 1), was prepared by Dr Julian Scott, a former Chief Probity Officer of the Dental Practice Board for England and Wales and the GDC's probity expert. The document set out in tabular form data relating to 45 claims made by the Appellant in respect of treatment concerning 20 patients (each of which was assigned a number). The columns of data indicated the Treatment Acceptance Date (“TAD”), the Treatment Completion Date (“TCD”), the date the claim was received, the Band of treatment claimed and the UDAs relating to it. The data in Schedule C was based on records provided by Mr Andy Lee, Senior Operations Lead for the NHS Business Services Authority (“BSA”), in particular in exhibit NHS4. The provenance of this data is described at paras 41 – 45 below. In short, Mr Hodivala submits that it was hearsay evidence that in fairness to Dr Imani should not have been admitted or should have been excluded by the PCC.
The Appellant's contentions in relation to Ground 2 are detailed at paras 104 – 111 below. In summary, Dr Imani submitted that the PCC failed to focus on or make sufficient findings in respect of her subjective state of mind, as required by the first stage of the test identified in Ivey v Genting Casinos [2017] UKSC 67, [2018] AC 391 (“ Ivey”); arrived at inconsistent findings between the allegations of dishonesty that were and were not found proven; and made specific errors of reasoning in relation to some of the charges.
The structure of this judgment is as follows:
i) Facts and circumstances and the PCC's findings: paras 9 – 81;
ii) The legal framework: paras 82 – 102;
iii) The Appellant's submissions: paras 103 – 111;
iv) Discussion and conclusions, Ground 1: paras 112 – 129;
v) Discussion and conclusions, Ground 2: paras 130 – 157; and
vi) Outcome: paras 158 – 159.
Facts and circumstances and the PCC's findings
Background
The Appellant graduated with a degree in dentistry whilst living in Sweden. She came to the United Kingdom in 1998 and has been registered with the GDC since 25 March 1998. In 2000 Dr Imani purchased her first dental practice, which was based in Peacehaven. When the NHS General Dental Services Contract (“GDS Contract”) came into existence in April 2006, Peacehaven was allocated over 19,000 UDAs per annum (a relatively large figure). The contract year runs from 1 April to 31 March. The allocation of UDAs remained at this level during the period that the PCC was concerned with. Over the years, the Appellant engaged a number of full time, part-time and locum dentists to assist her in the practice. She also had a practice manager and a receptionist.
In May 2005 Dr Imani purchased a second practice, this time in Hove. This was a much smaller operation. Initially the patients were all private, but Dr Imani expanded into NHS work and from 2006 this practice was awarded 600 UDAs annually under the GDS Contract. From the year 2016/2017 the Appellant was able to sub-contract around 2000 UDAs from the larger Peacehaven contract to be undertaken at Hove.
The charges faced by the Appellant arose from reviews of randomly selected records of her patients that were undertaken in August 2014, October 2015 and March 2017.
The GDS contract and FP17
By the time of the hearing before the PCC, the correct approach to making claims for dental treatment under the GDS contract was not in dispute. The contested issues concerned Dr Imani's state of mind at the time when the claims were made.
The GDS Contract was introduced by the National Health Service (General Dental Services Contracts) Regulations 2005 (“the GDS Regulations”) and the National Health Service (Dental Charges) Regulations 2005 (“the Charges Regulations”). A dentist who contracts to work for the NHS agrees to deliver an annual number of UDAs. The dentist is then paid monthly pro rata the value of the annual contract. There is no additional payment made for extra UDAs undertaken, but, in the circumstances that I indicate below, the NHS can clawback funds which have been overpaid if UDA targets are not met. Every dental provider is required by their contract to furnish details of the clinical activity undertaken by the contractor's performers. The notification has to be given within two months of the completion of a course of treatment. From 2013 this is given to NHS England.
Clinical activity is measured in terms of UDAs with respect to a completed course of treatment. There are three main charging Bands: Band 1 attracts 1 UDA and covers, for example, examination, diagnosis and preventive care; Band 2 work attracts three UDAs and includes treatment covered by Band 1 with additional treatment such as filings, root canal treatment and extractions; and Band 3 is assigned 12 UDAs and includes treatment that is covered by Bands 1 and 2 plus more complex dental work such as the provisions of crowns and dentures. The provider is expected to know, and to indicate on the FP17 form (para 16 below), the correct Band for the treatment that they provide.
The contractor is expected to use their best endeavours to ensure that the course of treatment is completed within a reasonable time: clause 41 of the GDS Contract and Sch 3 Part 2, para 6(2) of the GDS Regulations. A course of treatment encompasses: examination of a patient, assessment of their oral health, the planning of any treatment to be provided and the provision of the planned treatment up to the date on which every component has been provided to the patient (or they voluntarily withdraw or are withdrawn from the treatment): regulation 2(1) of the Charges Regulations. UDAs are attributable when the course of treatment is complete: regulation 2(1) of the GDS Regulations. Accordingly, the accrual of UDAs for a GDS Contract is directly related to the course of treatment completed during a particular contract year, or, to put it another way, the date of completion of a course of treatment determines the contract year to which the relevant UDAs will be attributed.
The contractor is required to notify NHS England on the prescribed form (“the FP17”) within two months of the date of completion of each course of treatment. At the relevant time, the FP17 could be submitted in paper format or electronically. Its contents provide the...
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