“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.”
“Incomplete treatment – For banded courses of treatment commenced but not completed, cross one of the boxes 1, 2 or 3 to show the work that has been completed. The patient charge will be calculated against whichever of these boxes is crossed. A charge band must also be present in part 5, showing the treatment that has been started, so the band crossed in part 5 must be the same as, or higher than, the band crossed in part 3. ..... Completion or Last Visit – Enter date of completion if the course was completed, or the date of last visit if it was not completed. All forms should be submitted within 2 months of the date of completion. If a decision is made to mark the form as incomplete, it should be submitted as quickly as possible.”
“Band 1 – Cross this box for a course of treatment that falls into charge band 1. Band 2 – Cross this box for a course of treatment that falls into charge band 2. Band 3 – Cross this box for a course of treatment that falls into charge band 3.”
“All the necessary care and treatment that the patient is willing to undergo will be provided.”
“All the currently necessary care and treatment that the patient is willing to undergo has been carried out”
“Between January 2012 and December 2017 you caused or permitted claims to be made in your name for...UDAs...under the provisions of the NHS as set out in Schedule C.”
“I now accept that this was an inappropriate claim and that submitting claims for incomplete treatment at the end of the contract year is not appropriate, but I did not know that at the time”
“In respect of the following claims you caused or permitted a claim to be made with incorrect premature dates of completion: (a) Patient 1 and Claim 6; (b) Patient 2 and Claim 12; (c) Patient 6 and Claim 26; (d) Patient 8 and Claim 43; (e) Patient 11 and Claim 50; (f) Patient 22 and Claim 107; and (g) Patient 23 and Claim 109. The Appellant admitted this conduct, but she denied dishonesty on the same basis as she had indicated in respect of charge 6(f). In relation to the charge 7(c) she also said that she could not explain the dates entered and thought it to be “a mistake by whoever completed the form, which I obviously accept responsibility for”
“did not offer Patient 5 the option of undergoing periodontal treatment under the NHS and your conduct was thereby: (a) misleading; (b) dishonest in that you sought to obtain private payment for treatment to which the patient was entitled under the NHS”
“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. ..... 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. ..... ...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.”
“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’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.”
“The Committee took into account the submissions made by both parties and accepted the advice of the Legal Adviser. In making its decision, the Committee acknowledged the importance and the significance of the evidence it was being asked to consider. It noted that it may be the sole evidence with regard to the allegation of dishonesty. However it noted that that was not in itself a reason to exclude the evidence. The Committee was of the view the collation of information from the FP17 forms amounted to a business record, and, as such was generally admissible in regulatory proceedings. The GDC also considered that the information came from a reliable source, namely the NHS. Furthermore, the Committee noted Mr Lee’s oral evidence regarding the auditing of the claims data and that out of 10 per cent of the data audited, 99.9 per cent was found to be accurate. The Committee consider that a 10 per cent sample was a reasonable amount to show that the data was reliable. The Committee also considered that you will have the opportunity to present your own evidence with reference to the relevant dental records and the evidence of your expert. The Committee considered carefully the fact that the FP17 forms were no longer available. The Committee also had regarding to Hayley Turner’s witness statement...in which she stated that concerns were initially raised about your claiming in 2013. However, the Committee noted that there was no further information contained in her witness statement about what those concerns specifically involved. The Committee, therefore, do not accept that the evidence is demonstrably unreliable and determined that it should not be excluded.”
“by signing the Part 9 declaration of the FP17 form you ‘caused or permitted’ the relevant claims to be made...It is not disputed that dentists/performers are expected to ensure that any claim made in their name is an accurate representation of the treatment, including the date the treatment was provided, under the NHS”
“When determining whether your conduct amounts to dishonesty, it should apply the test set out in the case of [Ivey]. It should first consider the actual state of your knowledge or belief as to the facts at the time. It should then go on to consider whether your conduct would be viewed as dishonest by the objective standards of ordinary and decent people. There is no requirement that you must appreciate that what you have done was dishonest by those standards...”
“...the Committee gave careful and detailed consideration to Mr Hodivala’s closing submissions about the weight that the Committee should attach to the evidence contained in Schedule C. Mr Hodivala made reference to the non-exhaustive list of considerations identified in Section 4 of the [CEA 1995] and concluded that, ‘both the data contained in Schedule C and the evidence of audits involve multiple hearsay’ and ‘the registrant (and the Committee) have had no opportunity to check the data because all original documents, including the audit reports, have been destroyed’. He concluded that, ‘no weight should be placed on the hearsay data contained in Schedule C’. ..... The Committee accepted Mr Lee’s evidence, which is based on his experience of working for NHS Dental Services for 32 years and his knowledge of the process, including the monthly audit of the transcribed data accuracy, gained through his work...”
“...The Committee also accepts that the quality control process did reveal an extremely low level of error (0.1%). The Committee considered this extremely minimal level of error, identified by the quality control process, was so miniscule that it did not justify Mr Hodivala’s assertion that no weight whatsoever should be placed on the data in Schedule C because that data was not reliable. In conclusion, the Committee determined that it was appropriate and fair to place weight on the information contained in Schedule C because that information was reliable.”
“...although your interpretation of how to complete the FP17 form was incorrect, you were careless and you benefitted financially from your actions when you submitted the form, you genuinely believed that you were completing it correctly. The Committee determined that the GDC has not provided cogent evidence in support of this charge and has not satisfied the burden of proof. Therefore, it determined, on the balance of probabilities, that when this claim was made, you did not submit it knowing or believing you were not entitled to the UDAs claimed.”
“Dr Pal’s opinion is that the evidence from this can be seen from the x-rays and photos in the records. The Committee had sight of the x-rays and photos referred to by Dr Pal. However, it considered that the quality of these was poor and did not accept Dr Pal’s explanation. The Committee considered that the records did not contain any evidence that an inlay was fitted to the UR7 during the dates claimed for...The Committee noted that there was an appointment for2 December 2016 , which is a 20-minute appointment marked ‘pending’ for ‘filing-composite’. The Committee determined that there are no treatment notes for this appointment and no satisfactory evidence that an inlay was placed on that day. In conclusion, the Committee preferred and accepted Mr Scott’s opinion that no Band 3 treatment was provided during this period.”
“The Committee has previously accepted your explanation in relation to other charges for making an incomplete claim where treatment had been planned but not completed within the claim period. However, in relation to this charge, there is no satisfactory evidence that the treatment claimed for was planned, started, or even considered during the claim period. Considering the evidence holistically, even taking account of the passage of time and considering the chaotic and disorganised nature of your practice and reminding itself of the burden of proof, the Committee is satisfied, on the balance of probabilities, that you knew you were claiming for additional UDAs to which you were not entitled. This is not a claim for incomplete Band 3 treatment and it is inherently unbelievable that you did not know when the claim was submitted that you had not planned or started the treatment you were claiming for. The Committee also considers that you had a motive for making the claim which was you own financial gain. The Committee then determined that this conduct would be viewed as dishonest by the objective standards of ordinary and decent people.”
“The Committee noted that the records indicate that this patient did attend an emergency appointment at which he received treatment on6 August 2013 ...but there is no evidence to persuade the Committee that Band 2 treatment was provided that day. However, looking at the evidence in the round, taking into account that treatment did take place on6 August 2013 , that your practice was chaotic, disorganised and you did not give the required attention to the completion of FP17s, the Committee concluded that the GDC had not proved to the requisite standard that you submitted this claim believing that it was for UDAs to which you were not entitled. Instead the Committee determined that you sent this claim in without properly checking the form before it was signed by you and submitted. You were careless, but your conduct would not be viewed as dishonest by the objective standards of ordinary and decent people.”
“It was my understanding that if you started a course of treatment in one contract year then you couldn’t carry it forwards to the next year. I was reinforced in this view by a conversation I had with Jill Graham...in about 2014 in which she told me that I had to claim for the work before 31st March in each contract year. We would therefore fill in the Completion Date / Last Visit Date on the FP17 claim forms based on that understanding if we were unable to complete a patient’s course of treatment within the same contract year, we would submit a claim for incomplete treatment on the FP17 claim form.”
“However, the Committee did not accept your explanation as plausible for the following reasons: • In oral evidence Ms Graham stated that she could not remember this conversation with you. However, she stated, ‘Although I cannot recall a conversation with Ms Imani, I would not have advised any NHS dental provider that a course of treatment that started in one financial year could not be carried forward (completed) in the next financial year, or that they should submit incomplete treatment submissions on the basis of the financial year.’ The Committee found Ms Graham’s evidence credible. It considered it highly unlikely that Ms Graham would have advised you it is correct to complete FP17 forms in the way you have. Jill Graham’s evidence was that she had not been able to find any correspondence from you raising any queries about the correct process for claiming; • The Committee noted that you had held an NHS contract since 2006 and Jill Graham’s evidence was that the procedure on how to submit claims within financial years had not changed since then. You stated that you had realised in 2018 that it was wrong, but did not explain how you came to that conclusion. • The Committee accepted the witness statement of Hayley Turner... • Ms Turner relied on documents that had been saved to the NHSE casefile, which showed your UDA targets and performance from 2012 to 2018. The figures in these documents demonstrated that you have consistently underperformed on your Brighton contract for every year from 2012/13 to 2018/19. You agreed in your oral evidence that you knew that you were at risk of ‘clawback’ of NHS funds prepaid to you throughout these years. • The Committee accepted Dr Scott’s evidence that, ‘By dating a claim that in fact relates to treatment completed in April or May, as if it had been completed during March, the Contractor ensures that the UDAs are accrued during the previous Contract Year’...The Committee also found credible Dr Scott’s expert evidence that there was no misunderstanding from the dental profession at large in relation to premature claiming. In conclusion, after considering the evidence holistically and where the burden of proof lay, it determined that your explanation was implausible and inherently unbelievable. The Committee did not find it credible that you did not know that you were not entitled to claim in the financial year for work you had not yet completed. Because of this, unlike in relation to certain other allegations where the Committee has accepted that you may have been negligent and/or careless...it determined in relation to this particular allegation that it would have been your genuine belief at the time that you would not have been entitled to claim for Band 2 treatment that had not been completed in that financial year. The Committee then determined that this conduct would be viewed as dishonest by the objective standards of ordinary and decent people.” • In oral evidence Ms Graham stated that she could not remember this conversation with you. However, she stated, ‘Although I cannot recall a conversation with Ms Imani, I would not have advised any NHS dental provider that a course of treatment that started in one financial year could not be carried forward (completed) in the next financial year, or that they should submit incomplete treatment submissions on the basis of the financial year.’ The Committee found Ms Graham’s evidence credible. It considered it highly unlikely that Ms Graham would have advised you it is correct to complete FP17 forms in the way you have. Jill Graham’s evidence was that she had not been able to find any correspondence from you raising any queries about the correct process for claiming; • The Committee noted that you had held an NHS contract since 2006 and Jill Graham’s evidence was that the procedure on how to submit claims within financial years had not changed since then. You stated that you had realised in 2018 that it was wrong, but did not explain how you came to that conclusion. • The Committee accepted the witness statement of Hayley Turner... • Ms Turner relied on documents that had been saved to the NHSE casefile, which showed your UDA targets and performance from 2012 to 2018. The figures in these documents demonstrated that you have consistently underperformed on your Brighton contract for every year from 2012/13 to 2018/19. You agreed in your oral evidence that you knew that you were at risk of ‘clawback’ of NHS funds prepaid to you throughout these years. • The Committee accepted Dr Scott’s evidence that, ‘By dating a claim that in fact relates to treatment completed in April or May, as if it had been completed during March, the Contractor ensures that the UDAs are accrued during the previous Contract Year’...The Committee also found credible Dr Scott’s expert evidence that there was no misunderstanding from the dental profession at large in relation to premature claiming. In conclusion, after considering the evidence holistically and where the burden of proof lay, it determined that your explanation was implausible and inherently unbelievable. The Committee did not find it credible that you did not know that you were not entitled to claim in the financial year for work you had not yet completed. Because of this, unlike in relation to certain other allegations where the Committee has accepted that you may have been negligent and/or careless...it determined in relation to this particular allegation that it would have been your genuine belief at the time that you would not have been entitled to claim for Band 2 treatment that had not been completed in that financial year. The Committee then determined that this conduct would be viewed as dishonest by the objective standards of ordinary and decent people.”
“With regard to dishonesty, you denied this and stated that this was an example of where you forgot to cross the ‘incomplete’ box in Part 3 of the FP17 form. The Committee noted that the claim was submitted with a completion date of31 March 2015 , but the treatment was not completed until15 May 2015 . The Committee had previously rejected your explanation regarding your stated misunderstanding when completing the FP17 form for claims at the end of the financial year which it finds implausible (see reasoning above for charge 6(f) in relation to 9(c)). Therefore, the Committee determined that when you submitted the claim you did so despite knowing that you were not entitled to claim prematurely for incomplete work in that financial year. The Committee paid careful attention to the fact this claim had a completion date of31 March 2015 , which was the end of your UDA year when you underperformed on your NHS contract and were at risk of clawback. The Committee also noted that a number of UDA claims appeared to have been submitted by you on or about the end of the UDA year. Looking at the evidence in the round the Committee find that when you submitted this claim you were seeking to obtain additional UDAs to which you knew you were not entitled. The Committee then determined that this conduct would be viewed as dishonest by the objective standards of ordinary and decent people.”
“The Committee noted the FP17DC forms, which showed that on three separate occasions (14 November 2014 ,24 July 2015 and12 February 2016 ) you had provided private periodontal treatment to Patient 5. The Committee could see no evidence in the records that you offered to provide this treatment on the NHS. The Committee found your evidence that the patient had wanted this treatment privately to be vague and not based on any recorded discussion with the patient about this. Further, the Committee finds your explanation that, as Patient 5 had signed the FP17DC forms, this in itself showed that he had decided to have private treatment implausible. ..... The Committee is not critical of Airflow being provided as an additional cosmetic private treatment, but finds that because this patient’s BPE scores indicated that periodontal disease was present the patient should have been offered the available treatment on the NHS. The Committee considers that there is no satisfactory evidence that you did this. Accordingly, the Committee found it proved that you did not offer Patient 5 the option of undergoing periodontal treatment under the NHS.”
“...on the balance of probabilities, that as an experienced general dental practitioner, who had been working under an NHS contract since 2006, you would have been aware at the time that the treatment was available on the NHS. The Committee determined that the three separate FP17DCs, dated14 November 2014 ,24 July 2015 and12 February 2016 , evidenced that you had provided on these occasions private periodontal treatment, without the patient being offered the treatment on the NHS. The Committee considers that signing the FP17DCs evidences the patient may have been aware of the£65 charge but not that he could have had the treatment on the NHS but opted to have it privately instead. The Committee determined that the use of Airflow was not documented in the clinical records to prompt the receptionist to charge for Airflow. The Committee finds it implausible that your receptionist, rather than you, decided that the patient should pay the£65 charge. Looking at the evidence in the round, the Committee decided, on a balance of probabilities, that despite being aware that this patient was entitled to NHS treatment, you decided to charge him privately, without making him aware that the treatment was available on the NHS and that you did this most likely for personal gain. The Committee concluded that ordinary and decent people would view your actions of seeking to obtain private payment for this treatment, when the patient could have had the treatment provided on the NHS, as dishonest.”
“16. The approach to an appeal pursuant tos.29 of the Dentists Act 1984 can be summarised as follows: (1) An appeal pursuant tos.29 of the Dentists Act 1984 is by way of rehearing... (2) ... (3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity in the proceedings before the lower tribunal... 17. The general principles applicable to an appeal against a decision of a professional Disciplinary Committee of this sort can be summarised as follows: (1) The Court 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) The Court 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) 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.” (1) An appeal pursuant tos.29 of the Dentists Act 1984 is by way of rehearing... (2) ... (3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity in the proceedings before the lower tribunal... (1) The Court 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) The Court 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) 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.”
“103. The courts have accepted that some degree of deference will be accorded to the judgment of the tribunal but, as was observed by Lord Millett at para 14 in Ghosh, ‘the Board will not defer to the Committee’s judgment more than is warranted by the circumstances’. In Preiss[2001] 1 WLR 1926 , at para 27, Lord Cooke stated that the appropriate degree of defence will depend upon the circumstances of the case; Laws LJ in Raschid and Fatnam[2007] 1 WLR 1460 , in accepting that the learning of the Privy Council constituted the essential approach to be applied by the High Court on a section 40 appeal, stated that on such an appear material errors of fact and law will be corrected and the court will exercise judgment but it is a secondary judgment as to the application of the principles to the facts of the case (para 20)...”
“14. ...the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where ‘any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion’ per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings ‘sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread’ per Lord Hailsham in Libman; - findings ‘plainly wrong or so out of tune with the evidence properly read as to be unreasonable’ per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); - where there is ‘no evidence to support a...finding of fact or the trial judge’s finding was one which no reasonable judge could have reached’ per Lord Briggs in Perry...” - where ‘any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion’ per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings ‘sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread’ per Lord Hailsham in Libman; - findings ‘plainly wrong or so out of tune with the evidence properly read as to be unreasonable’ per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); - where there is ‘no evidence to support a...finding of fact or the trial judge’s finding was one which no reasonable judge could have reached’ per Lord Briggs in Perry...”
“74. ...Where dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
“57 Evidence (1) A Practice Committee may in the course of the proceedings receive oral, documentary of other evidence that is admissible in civil proceedings in the appropriate court in the part of the United Kingdom in which the hearing takes place. (2) A Practice Committee may also, at their discretion, treat other evidence as admissible, if, after consultation with the legal adviser, they consider that it would be helpful to the Practice Committee, and in the interests of justice, for that evidence to be heard. (3) ... (4) It shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities.”
“1. – Admissibility of hearsay evidence (1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay. (2) In this Act – (a) ‘hearsay’ means a statement made otherwise than by a person whilst giving oral evidence in the proceedings which is tendered as evidence of the matters stated; (a) ‘hearsay’ means a statement made otherwise than by a person whilst giving oral evidence in the proceedings which is tendered as evidence of the matters stated; 4. – Considerations relevant to weighing of hearsay evidence (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard may be had, in particular, to the following – (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. 9. – Proof of records of business or public authority (1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof. (2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong...... (3) ..... (4) In this section – ‘records’ means records in whatever form ‘business’ includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual; ... (5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.”
“In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”
“58. ...the Court of Appeal emphasised that the issue of fairness under r.31 goes to the admissibility of the evidence rather than merely to its weight. It therefore is not open to the [Committee] to adopt an approach which involves admitting the evidence and then giving such weight to it as the Committee thinks fair: see, in particular, paras 23 and 25 of the judgment of the Court of Appeal. 59. In Ogbonna, the NMC had placed reliance on the statement of a Ms Pligrim without calling her. At para 23, Rimer LJ, with whom Pill and Black LJ agreed, said this: ‘...the criterion of fairness referred to in 31(1) is relevant to whether a statement should be admitted at all; the rule expressly requires decisions as to the admission or exclusion of a hearsay statement to be governed by considerations, inter alia, of fairness. In that context, the NMC should perhaps be reminded that it was seeking to adduce Ms Pilgrim’s statement as the sole evidence supporting the material parts of Charge 1, when it knew that the evidence was roundly disputed and could not be tested by cross-examination. It was, moreover, seeking to adduce it in support of a case that it was promoting, whose outcome could be (and in the event was) the wrecking of Mrs Ogbonna’s career as a midwife, a career which had lasted over 30 years. I should have thought it was obvious that, in the circumstances fairness to Mrs Ogbonna demanded that in principle the statement ought only to be admitted if she had the opportunity of cross-examining Ms Pilgrim upon it.’” ‘...the criterion of fairness referred to in 31(1) is relevant to whether a statement should be admitted at all; the rule expressly requires decisions as to the admission or exclusion of a hearsay statement to be governed by considerations, inter alia, of fairness. In that context, the NMC should perhaps be reminded that it was seeking to adduce Ms Pilgrim’s statement as the sole evidence supporting the material parts of Charge 1, when it knew that the evidence was roundly disputed and could not be tested by cross-examination. It was, moreover, seeking to adduce it in support of a case that it was promoting, whose outcome could be (and in the event was) the wrecking of Mrs Ogbonna’s career as a midwife, a career which had lasted over 30 years. I should have thought it was obvious that, in the circumstances fairness to Mrs Ogbonna demanded that in principle the statement ought only to be admitted if she had the opportunity of cross-examining Ms Pilgrim upon it.’”
“i) Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referrable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance. ii) In criminal proceedings there is no ‘sole or decisive’ rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant. iii) In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d). iv) However, disciplinary proceedings against a professional man or woman, although not classified as criminal, may still bring into play some of the requirements of a fair trial spelt out in Article 6(2) and (3) including in particular the right to cross-examine witnesses whose evidence is relied on against them. v) The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors. vi) Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused person in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal. vii) The ultimate question is what protection is required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one. viii) In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examiner the accuser.”
“1.1 The admission of the statement of an absent witness should not be regarded as a routine matter. The FTP rules require the Panel to consider the issue of fairness before determining the evidence. 1.2 The fact that the absence of the witness can be reflected in the weight to be attached to their evidence is a factor to weigh in the balance, but it will not always be a sufficient answer to objection to admissibility. 1.3 The existence or otherwise of a good and cogent reason for the non-attendance of the witness is an important factor. However, the absence of a good reasons does not automatically result in the exclusion of the evidence. 1.4 Where such evidence is the sole or decision evidence in relation to the charges, the decision whether or not admit it requires the Panel to make a careful assessment, weighing up the competing factors. To do so, the Panel must considers the issues in the case, the other evidence which is to be called and the potential consequences of admitting the evidence. The Panel must be satisfied either than the evidence is demonstrably reliable, or alternatively that there will be some means of testing its reliability.”
“55. The appellant criticises the wording of the Panel’s decision that stated: ‘The panel did not consider Patient A’s account to be so unreliable that it should not be admitted into evidence’. This was a good point well made by Ms Ahmed. If that had been how the Panel had directed itself as to how to approach the question of the admissibility of hearsay evidence, it would be worrying as it is wrong. However, when one reads those words in the context of the Panel’s overall self-direction and all its findings and reasoning, it is clear that it is just a stray phrase – merely infelicitous wording or a Homeric nod – and does not represent the test they have applied. The Panel did not consider the admission of Patient A’s statement as a routine matter. It noted the good and cogent reason for the inability of Patient A to attend the hearing to give evidence...His evidence was decisive, but after careful consideration the Panel concluded that Patient A’s account...was demonstrably reliable and in some respects was capable of being tested by other evidence.”
“you sought to obtain additional UDAs to which you knew you were not entitled”
“... that patient should have been offered the available treatment on the NHS. The Committee considers that there is no satisfactory evidence that you did this”
“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 notwithstanding the fact that you have already seen them”
“He submitted that you have the right to a fair trial and that the evidence should be demonstrably reliable and capable of being tested for it to be admitted”
“she referred the Committee to Mr Lee’s oral evidence in which he attested to the reliability of the data”
“Q A suggestion I am going to put to you...that there was a discussion between yourself and Dr Imani about the fact that there are all these late submitted claims and that if she wanted to get paid for the work, then she had to put the claim in by the end of the year. A. On the late submitted claims? Q. ...there was discussion about the fact that claims had to be submitted by the year end if they were to be paid. A. If they were completed claims, then they would have to be submitted by the end – completed by 31 March to ensure that they were included on that year end information. Q. Yes, but I am going to suggest to you that there was not any discussion about completed or incompleted, just that there was a discussion about the fact that claims had to be submitted by the end of the year if she was to be paid for those UDAs. A. And if the treatment had been completed on or before 31 March of that financial year.” (Emphasis added.)
“...And I remembered that time Jill came and showed me a – like a bundle of paper and said – and she had highlighted with yellow/pink...and said ‘These are not paid’ because they were submitted late... ....And so I asked her, I said ‘So you are telling me all this claim that we sent for last year it hasn’t been paid for or UDA hasn’t been given...She said – this was exactly what she said, ‘As long as you sent your claim form before 31 March, you will be paid, or UDA will be claimed for that financial year. Anything that goes to the new financial year is for new financial year’. I don’t think she did anything – said anything wrong. I think the misunderstanding for me what that I thought the late submitted claim that she showed me belongs to those ones that I started the treatment but didn’t finish it in the same financial years. So that’s why she is saying that this hasn’t been paid...So my understanding was that if you don’t finish your UDAs on the previous financial year, you are not going to be paid for them.”
“did not find it credible that you did not know that you were not entitled to claim in the financial year for the work you had not yet completed”
“on a balance of probabilities, that despite being aware that this patient was entitled to NHS treatment, you decided to charge him privately, without making him aware that the treatment was available on the NHS and that you did this most likely for personal gain”