Mohammed Ashraf v General Dental Council
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Mr Justice Cranston |
| Judgment Date | 29 July 2014 |
| Neutral Citation | [2014] EWHC 2618 (Admin) |
| Docket Number | Case No: CO/16976/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2014 |
[2014] EWHC 2618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr. Justice Cranston
Case No: CO/16976/2013
Andrew Hockton (instructed by Radcliffes le Brasseur, London) for Dr Ashraf
Lydia Barnfather (instructed by Capsticks, London) for the Respondent
Hearing dates: 26 June 2014
Judgment Approved by the court for handing down
(subject to editorial corrections)
On 21 October 2013, a Professional Conduct Committee ("PCC") of the General Dental Council ("GDC") adjudged that Dr Ashraf, a dental practitioner, had made inappropriate and dishonest claims to the NHS and, in addition, had interfered with witnesses who had been approached in the investigation. On the following day, it made consequential findings of misconduct and impairment. In consequence, the PCC determined that his name should be erased from the register. Dr Ashraf now appeals pursuant to the provisions of s. 29 of the Dentists Act 1984.
Central to the appeal is the fact that, prior to the PCC hearing, Dr Ashraf had been prosecuted on an indictment containing three counts of fraud and theft in relation to the same NHS claims and had been acquitted by the jury on all counts. That led to an application to stay the disciplinary proceedings as an abuse of process which, on 9 September 2013, the PCC rejected. Further grounds of appeal relate to the adequacy of the evidence upon which the adverse findings were made and the decisions both as to the impairment of his fitness to practise and his erasure.
Legal Framework
The appeal proceeds by way of a re-hearing ( CPR Part 52, PD 52D, 19.1(2)) so that it will be allowed where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings ( CPR 52.11). In that regard, the court has the power (a) to dismiss the appeal, (b) to allow the appeal and quash the decision appealed against, (c) to substitute for the decision appealed against any other decision which could have been made by the PCC or (d) remit the case to the PCC to dispose of the case in accordance with the directions of the court: see s. 29(3) of the 1984 Act.
It is unnecessary to revisit the authorities that identify the difference between a review and a rehearing. These are summarised in Bhatt v General Medical Council [2011] EWHC 783 (Admin) at para 9 and adopted, with minor linguistic alteration) in Singh Wasu v General Dental Council [2013] 3782 (Admin). In short, although the court will correct errors of fact or approach:
"(1) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
(2) [it will have regard to the fact] that the tribunal has had the advantage of hearing the evidence from live witnesses;
(3) the court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;
(4) findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
(5) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair."
Background Facts
Dr Ashraf qualified as a dentist in 1996. In 2002, he became the owner and principal of a general dental practice known as Great Horton Dental Practice in Bradford. When he acquired the practice, he was working under the then existing General Dental Services contract with a patient base of around 3,000 but, over the ensuing years, he built up the practice to around 7,000 patients. From 1 April 2006, Dr Ashraf entered into a new NHS contract which provided a new basis for calculating remuneration through a mechanism whereby a contracting dentist was expected to provide an agreed amount of dental care, measured in what were known as units of dental activity ("UDA"). In the case of Dr Ashraf's practice, the agreed amount of dental activity amounted to 14,000 UDAs which had a monetary value of some £350,000. To claim payment, within two months of a completed course of treatment, the dentist is required to submit a claim identifying the details of the care or the UDAs carried out.
UDAs are claimed according to one of three bands of treatment. Band 1 includes an examination, assessment and planning of treatment and attracts 1 UDA. Band 2 covers everything in band 1 plus any additional treatments such as fillings and simple root canal procedures: this band justifies a claim of 3 UDAs. Lastly, band 3 incorporates treatment covered by bands 1 and 2 plus more complex procedures such as crowns, dentures and appliances involving laboratory work. Band 3 treatment typically involves more than one appointment and attracts 12 UDAs. At the time of the claims in question, fee-paying patients would have to pay an NHS fee of approximately £15.50 for band 1, £42.40 for band 2 and £189.00 for band 3 treatments.
The allegations against Dr Ashraf concerned inappropriate and dishonest claims made in respect of UDAs and payments from the NHS over the period 2006 to 2008. The PCC also considered allegations of attempts by Dr Ashraf to frustrate the NHS counter fraud investigation into these claims by failing to supply patient records and, by himself or others, interfering with witnesses.
The claims said to be inappropriate and dishonest are grouped under three heads. First, it is alleged that Dr Ashraf submitted claims for treatments that had not in fact been carried out. These involved the provision of bite raising appliances ("BRAs"), a band 3 treatment attracting 12 UDAs, to patients who had never, in fact, received a BRA ("Head 3" of the charge). Secondly, it is alleged that Dr Ashraf claimed for treatments in a higher band than was justified or split a course of treatment into two separate claims which properly should have been covered by one claim ("Head 4"). The third complaint concerns Dr Ashraf's failure to submit PDS 1 forms. These forms enable dentists to declare fees paid by patients directly so that the Dental Practice Board can deduct that amount from the NHS monies paid to the dentist each month. Thus, this allegation is that forms were deliberately held back so that deductions which should have been made to Dr Ashraf's payments were not made ("Head 5").
Suspicion was raised about Dr Ashraf's NHS claims in 2007 and his case was passed to the Dental Fraud team in September of that year. The subsequent counter-fraud investigation was led by Mr Jason Croft, who was also a witness both in the criminal trial and disciplinary hearing. On 28 January 2009, Dr Ashraf was arrested at his surgery in relation to the investigation and records were seized. Mr Croft interviewed Dr Ashraf on three occasions at Bradford South Police Station and obtained statements and records from patients. In May 2009, he referred the case to the GDC.
The Criminal Trial
How the case proceeded from the GDC to criminal prosecution was not elucidated before us but, between 5 and 21 March 2012, Dr Ashraf stood trial on three charges of fraud and theft arising out of his claims for NHS payment. Counts 1 and 2 were making a false representation contrary to s. 2(1) of the Fraud Act 2006. The particulars were that with intent to make a gain for himself or cause loss to another, Dr Ashraf dishonestly made false representations, namely that treatment had been provided as detailed on the claim form whereas in fact that treatment had not been carried out (count 1), and that treatment was claimed within the correct Band whereas in fact it was not (count 2). Count 3 was a specific allegation of theft of the sum of £1,600 in relation to the retention of PDS 1 forms. As we have explained, Dr Ashraf was acquitted of all charges.
The Disciplinary Hearing
Given the speed of the subsequent hearings, there must have been considerable prior notice of the intentions of the GDC and, indeed, of Dr Ashraf's challenge, but it was by letter dated 5 September 2013 that Dr Ashraf was formally notified of the GDC charges against him. A PCC hearing was proposed for 7 October 2013 but a preliminary meeting was convened on 6 September 2013 (that is the day after the formal letter) in order to consider Dr Ashraf's application to stay, in whole or part, the substantive disciplinary proceedings against him on the grounds of abuse of process. The basis of this application was that, in light of the acquittals, it would be abusive for the GDC to proceed against him on charges which in substance mirrored the criminal charges.
The panel promulgated its findings on 9 September 2013. It noted that the GDC charges were both wider and narrower than those in the criminal trial; wider because the allegations were that the claims made to the NHS were inappropriate as well as dishonest, and narrower in that they concerned a smaller number of patients. The panel accepted the legal advice...
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