“25. Between 2019 and 2020 you failed to carry out BPEs and sufficient treatment planning in respect of a number of patients for whom you were providing Invisalign orthodontic treatment. 26. Between 2019 and 2021 you also routinely failed to maintain contemporaneous records in the Practice’s record keeping software. You instead used Microsoft Word to make most of your clinical notes. This was not an adequate standard of record keeping. The notes lacked sufficient clinical detail and were sometimes incomplete. They were also being created and stored separately to the Practice’s record keeping software, and were not easily accessible to other treating clinicians. 27. When a sample of your clinical records was reviewed as part of the GDC’s investigation into your fitness to practise, it came to light that, in two instances, radiographs had been stored in the records of the wrong patient. This too amounted to a failure to maintain an adequate standard of record keeping. 28. Between March and November 2020 you retrospectively altered the clinical records of 29 patients when transferring the notes you had made using Microsoft Word into the Practice’s record keeping software. These alterations were made by you to the records for a total of 125 appointments which had taken place up to two years earlier and consisted of adding (and in some cases altering and deleting) significant clinical detail which was not included in the contemporaneous Word documents. The alterations were not minor or purely editorial, such as correcting typographical errors, but instead altered the substance of the clinical record and provided substantially more clinical detail than had originally been recorded. 29. You made the alterations to create a permanent clinical record which would give the false impression that you had maintained an adequate standard of record keeping and had carried out more detailed examinations and investigations than that which had been contemporaneously recorded. Clinical findings were also retrospectively included which did not appear in the contemporaneous notes. False BPE scores were added by you in respect of numerous appointments to give the impression that you had carried out a BPE to screen for periodontal disease at those appointments, as required under the FGDP Guidelines, when you had not in fact carried out such examinations. 30. The records for 14 of the 29 patients had been retrospectively altered by you on19 October 2020 in response to a request from the NHS for the disclosure of those records. You knew that those records were deficient and you extensively falsified them in order to mislead the NHS as part of its monitoring processes. You falsely added considerable clinical detail to support the corresponding claims for treatment which had been submitted to it for payment[ I note that in his appeal skeleton Mr Mobasseri said this (in saying “claims”) overstated the evidence in this respect, which only (in terms of falsification of records by way of addition of clinical detail to support an inappropriate claim) extended to Patient I. ] and to give the false impression that your recording keeping met an adequate standard. 31. Your conduct in altering the records of these 29 patients was dishonest. 32. Between 2018 and 2019 you dishonestly submitted 6 inappropriate claims for treatment to the NHS. You had deliberately manipulated the dates of treatment and other details either to claim for additional UDAs to which you were not entitled or to make it appear that you had completed more UDAs in the preceding contract year, potentially avoiding a clawback for underperformance of the contract.”
“69. Having regard to all the circumstances, the Committee determined that no lesser sanction than erasure would be sufficient to meet the aspects of the over-arching objective of promoting and maintaining public confidence in the dental profession and of promoting and maintaining proper professional standards and conduct for members of that profession.”
“First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. … Secondly, … [t]he starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact … Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below … Fourthly, 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 conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta; - findings “sufficiently out of the 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 after analysis of McGraddie and Henderson.”
“This is a “rehearing” not a review. However, in my judgment the word “rehearing” is misleading. The appellate Court does not re-hear or re-see any live witnesses. Instead, what the appellate Court does is re-analyse the transcript of the evidence and the bundles of evidence put before the PCC. So, it is actually an appeal by way of reanalysis, not a full rehearing.”
“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.”
“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.”
“(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 between14 May 2019 (Patient 15) and02 March 2020 (Patient 4). (2) Mr Mobasseri admitted those failures. (3) When Mr Mobasseri transferred the Word records to the R4[ In fact, the SoE system. ] 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.”
“…And can you just tell me, is it your recollection that Mr Mobasseri would routinely take a BPE of all the patients that he saw? A. Yes, he does, yes, he does (inaudible). Q. And is--- A. Yes, he does, he does. Whenever there is check-up, he does BPEs. Q. So - okay, and he did- he did that exam with all of his patients including the Invisalign ones? A. Yes, I think- I think so, if I’m remembering correctly.”
“In reaching its decision, the Committee had regard to the fact that the record keeping template which you [Mr Mobasseri] created in Word did not include a field for BPE scores to be recorded, indicating that it may not have been your intention necessarily to routinely carry out BPEs. The Committee also had regard to the answers you gave during the course of your evidence where you were repeatedly dismissive of the clinical significance and importance of BPEs and where you characterised the FGDP Guidelines as being indicative rather than a requirement in relation to a need to take a BPE at each routine appointment. You stated that any differences in BPE scores were marginal, and that scores 0-2 (and potentially 3) could change over the course of just a few days, depending on the oral health of the patient. You stated that if a BPE were to be carried out weekly on a patient, 52 different scores could be recorded for them over the course of a year. A clear and consistent underlying theme of your evidence was a professional attitude where you did not appear to regard BPEs as being clinically necessary in the way described in the FGDP Guidelines, which makes it even more likely that you would not have routinely carried them out.”
“whenever he does that I record it. If he doesn’t, I don’t.”
“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.”
“In respect of the addition of BPE scores, you accepted that these were “made up” but maintained that you would have carried out the BPE at the appointment and that the retrospective scores (usually recorded by you as 222/222) were a rough estimate of what you think the scores were likely to have been based on other clinical data available to you. The Committee rejected your evidence and determined that the BPEs had not in fact been carried out. The Committee therefore found that your dishonesty in respect of the BPEs was not confined to simply retrospectively “making up” scores: you added those scores to give the impression that you had in fact carried out the BPE when you knew that this was not likely to be the case.”
“You stated in oral evidence that you were aware that Patients 9 and 10 were under the clinical care of other practitioners. You stated that you considered that monitoring or stabilising the periodontal disease would have been the clinical responsibility of those other practitioners and that your clinical role was confined to providing the orthodontic treatment. However, there was nothing in the clinical records (or even your detailed witness statement to the Committee) to indicate whether you were aware of any treatment carried out by those other practitioners or that you had attempted to identify when they had last seen their patient and whether the periodontal disease was being treated or monitored.”
“Ground 3: The Committee erred in finding dishonesty under Charge 7(b) in relation to the findings of fact made under Charge 5. As part of its reasoning the Committee opined: You could not offer any explanation to the Committee for the change in dates in respect of Patients B, F and K, save to suggest that it was the result of administrative error ... And In reaching its decision, the Committee could identify no other reasonable explanation for the alteration of dates. Under Ground 3, it is submitted that the Committee erred as it applied the wrong legal test, shifting the burden on proof onto the Appellant. It was for the General Dental Council to prove their case on the Balance on the Probabilities, rather than for the Appellant to prove. As such, the Committee erred in law.” “Ground 5(i): In respect of Patients B, F and K The Committee in finding dishonesty under Charge 7(b) in relation to the findings of fact made under Charge 5, relied on the motivation and reasoning of the Appellant was to ensure that the yearly NHS Contractual Targets were met. This was in error as: a. The Committee failed to give sufficient weight to the fact that that the claims in respect of these patients would have had a negligible effect on achieving the yearly targets as all of the alleged overclaiming amounted to only 0.28% of the yearly target; and/or b. The Committee failed to properly set out how this alleged reasoning allowed the Appellant to meet the requirement to meet the NHS Contractual Target. Ground 5(ii): In respect of Patient C and D in Charge 7(b) The Committee erred in failing to consider or weigh into the balance: a. Whether a second Band 3 claim, for the same treatment within 6 weeks of an earlier claim, would in fact have been eligible for any separate award of UDA points as against the yearly contractual target. b. That the Appellant did not require to attempt to submit incorrect duplicate claims to reach his yearly NHS Contractual Target; and c. The Committee erred in placing the burden of proof upon the Appellant by determining that he had failed to prove an administrative error, when the burden was on the GDC to prove dishonesty. Ground 5(iii): In respect of Patient I in Charge 7(b) The Committee erred in failing to consider or weigh into the balance: a. That there was no evidence led by the GDC that he needed to attempt to submit incorrect duplicate claims to reach his yearly NHS Contractual Target; and b. The Committee erred in placing the burden of proof upon the Appellant by determining that he had failed to prove an administrative error, when the burden was on the GDC to prove dishonesty.”
“When 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.”
“The dishonesty alleged under charge 5 depends on whether you submitted, or caused to be submitted, the inappropriate claims in the knowledge that they were dishonestly inappropriate and submitted for financial gain as opposed to doing so as the result of administrative or computer error.”
“The burden is on the GDC to prove each allegation on the balance of probabilities.” iii) Suggested that the correct application of the burden of proof was evident from the PCC’s decision in respect of Patient E, where the charge of dishonesty had been rejected, the PCC having stated as follows: “The Committee could not rule out the possibility that the second claim might subsequently have been administratively closed in error and therefore could not be satisfied that dishonesty had been proved.” iv) Contended that the PCC considered the alternative allegations provided by Mr Mobasseri, acting in accordance with the legal advice it had received: “In considering whether the GDC has proved its case, and before finding dishonesty proved, you have to be able to safely exclude, as less than probable, other possible explanations for Mr Mobasseri’s conduct, see Soni v General Medical Council[2015] EWHC 364 (Admin) ”. v) Said that the PCC’s reasoning was that it determined that the changes of date were deliberately altered; then considered the alternative explanation by Mr Mobasseri (namely administrative error) and decided that was less probable than deliberate amendment; then went on to consider whether there was any other reasonable explanation for the alternation of dates; and concluded that the changes made no sense except for the purpose of attempting to assign UDAs to the previous contract year (for which it pointed out Mr Mobasseri would have been the only potential beneficiary) and that there “would have been no reason for the administrative staff at the practice to have manipulated the dates in this way and submitted the claims for payment unless acting under your direction.”
“You could not offer any explanation to the Committee for the change in dates in respect of Patients B, F and K, save to suggest that it was the result of administrative error. You denied that you would have had any motive to have brought the claims into the previous contract year, as you stated there would not in any event have been a shortfall in the number of UDAs to t[r]igger a ‘claw back’.” iii) The PCC then recorded that with “regard to the totality of the evidence” it determined that Mr Mobasseri deliberately changed the dates of completion (and in the case of patient K, the date of acceptance) in order to bring the claims into the previous contract year, which conduct would be regarded as dishonest. iv) The PCC then went on to state that, in reaching its decision, it could identify no other reasonable explanation for the alteration of dates, noting that the dates were changed and the claims made in Mr Mobasseri’s name, using his log in details, that it was Mr Mobasseri who was solely responsible for closing treatment, and that it made no sense for this to have happened except for the purpose of attempting to assign UDAs to the previous contract year, for which Mr Mobasseri would have been the only person to have potentially benefitted. It stated there would have been no reason for the administrative staff “to have manipulated the dates in this way and submitted the claims for payment unless acting under your direction” and that the administrative staff would not have known the date on which the treatment was complete. v) The PCC also noted that there was “no evidence … that the claim could be opened and submitted in this way as a result of computer error.”
“There would have been no reason for the administrative staff at the Practice to have opened and closed the second course of treatment and submitted it for payment except if acting under your direction. The administrative staff would not have known the date on which treatment is complete, as this is a clinical matter for the treating dentist or other clinician to decide. There was also no evidence before the Committee that the claim could be opened and submitted in this way as a result of computer error.”
“You stated in evidence that you knew in the event of a duplicate claim being submitted to the NHS for the same course of treatment it would not have been paid. However, this was not a duplicate claim: the dates had been manipulated so that what was claimed would appear as a separate course of treatment.”
“Having regard to the totality of the evidence the Committee determined that it is more likely than not that you deliberately changed the dates in order to claim twice for the same course of treatment. Such conduct would clearly be regarded as dishonest by the standards of ordinary decent people.”
“You stated in evidence that you knew in the event of a duplicate claim being submitted to the NHS for the same course of treatment it would not have been paid. However, this was not a duplicate claim: the dates had been manipulated so that what was claimed would appear as a separate course of treatment.”
“It makes no sense for this to have happened except for the purpose of attempting to claim twice for the same treatment, for which you would have been the only person to benefit.”
“The claim in respect of Patient I was alleged to be inappropriate because you claimed for an emergency course of treatment on1 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.”
“Next appt [appointment] – pt [patient] to come back for 2nd stage of root canal treatment.” iii) 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”
“Next appt – pat to come back to see if tooth can be saved.”
“A course of antibiotics recommended, patient confirms not being allergic to any antibiotic, amxycillin 500mg 21 capsules for 7 days 3 times a day”
“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 on1 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.”
“…the fact that I put in my – or maybe my nurse put it in my Word records …”
“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.”
“…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.”
“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.”
“The ability to erase exists because certain behaviours are so damaging to a registrant’s fitness to practise and to public confidence in the dental profession that removal of their professional status is the only appropriate outcome. Erasure is the most severe sanction that can be applied by the PCC and should be used only where there is no other means of protecting the public and/or maintaining confidence in the profession. Erasure from the register is not intended to last for a particular or specified term of time. However, a registrant may apply for restoration only after the expiry of five years from the date of erasure.”
“Further to Grounds 1 to 6 above, the Committee erred in determining a sanction of erasure, when suspension for 12 months would have been more appropriate when all of the factors were taken into account. The Committee failed to take properly into account the significant amount of remediation completed by the Registrant, in addition to the fact he had been under interim suspension from December 2021 to September 2023, being a period just shy 2 years, having been on conditions since October 2020, and then subsequently conditions were reimposed September 2023.”
“There were substantial failures in your standard of record keeping and significant clinical failings in terms of diagnostic assessments and treatment planning, which put patients at a real risk of harm. … Your dishonesty in retrospectively altering numerous patient records, including to mislead the NHS as part of its monitoring process, and your dishonesty in submitting inappropriate claims for treatment are matters which clearly breach basic professional standards and fundamental tenets of the profession”
“…had regard to the wider public interest, which includes the need to uphold and declare appropriate standards of conduct and behaviour in order to maintain public confidence in the profession.”
“The Committee recognised the substantial remedial steps you have already taken, including comprehensive CPD activity and substantial changes in your record keeping practices, whereby your records are now contemporaneously maintained to a high standard. The evidence of your workplace supervisor is that you are a highly skilled, caring and competent practitioner who has taken these proceedings seriously and who has worked well under supervision to embed substantial improvements in his clinical practice.”
“No meaningful reflection on this was provided by you to the Committee, either at this stage of the hearing or as part of the factual inquiry, where your evidence to the Committee tended to be dismissive of the clinical importance and significance of BPE charting notwithstanding the CPD activity which you have undertaken.”
“You had placed patients at an unwarranted risk of harm in the past and, in the absence of further reflection and insight, are liable to do so again in the future.”
“You falsified the clinical records of 29 patients, including with the intention of misleading the NHS as part of its monitoring processes in respect of 14 of those patients. You also dishonestly submitted inappropriate claims to the NHS for 6 patients. Whilst the sums involved were modest, the principle involved remains the same: you abused the trust which the NHS placed in you as a registered dentist when claiming from the public purse.”
“There remains a risk of repetition which puts the public at a risk of harm. The wider public interest also requires a finding of impairment to mark the seriousness of your dishonesty.”
“57. The aggravating factors include: - a risk of harm to patients in respect of both your clinical failings and your retrospective alteration of clinical records; - premeditated dishonesty, including the deliberate alteration of clinical records; financial gain in respect of the NHS claims; - misconduct sustained and repeated over an extended period; - a blatant or wilful disregard of the systems regulating the profession, in that you falsified contemporaneous records to mislead the NHS and also made inappropriate claims to the NHS; - attempts by you to cover up wrongdoing by retrospectively altering the contemporaneous records; and - you demonstrate a lack of insight in that your insight in respect of both the clinical and probity failings is still developing. 58. In mitigation, the Committee had regard to: - your personal circumstances leading up to the incidents in question; - the evidence of good conduct following these incidents; - that you are otherwise of good character with no previous adverse fitness to practise history and have undertaken substantial remediation action in respect of the clinical aspects of your clinical failings, wholeheartedly embracing the interim conditions to which your registration is currently subject; - the steps you have taken to avoid a repetition of your clinical failings, including substantial changes to your record keeping practices; - the fact that you are remorseful; and - the passage of time, with the last incident occurring in 2021.”
“- there is evidence of repetition of the behaviour; - the Registrant has not shown insight and/or poses a significant risk of repeating the behaviour; - patients’ interests would be insufficiently protected by a lesser sanction; - public confidence in the profession would be insufficiently protected by a lesser sanction; - there is no evidence of harmful deep-seated personality or professional attitudinal problems (which might make erasure the appropriate order).”
“The scale and extent of your dishonesty in retrospectively altering clinical records both in order to conceal inadequate clinical practice and to mislead the NHS, does suggest a harmful deep-seated professional attitudinal problem which engages the question of erasure.”
“- serious departure(s) from the relevant professional standards; - serious dishonesty, particularly where persistent or covered up; - a persistent lack of insight into the seriousness of actions or their consequences.”
“66. The Committee noted that ‘submitting fraudulent NHS claims’ and ‘falsifying and/or improperly amending patient records’ are among the factors indicated at paragraph 59 of the ISG as being examples of dishonesty in professional practice which are capable of being ‘highly damaging to the dental professional’s fitness to practise and to public confidence in the profession’. 67. The Committee also had regard to the over-arching objective set out undersection 1 of the Dentists Act 1984 , namely: ‘(a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Act; and (c) to promote and maintain proper professional standards and conduct for members of those professions.’ ”
“Such conduct is fundamentally incompatible with your remaining on the Register and being allowed to enjoy the benefits and privilege of professional registration as a dentist.”
“Since his suspension and the therapeutic work he has undertaken alongside professional courses in ethics, professional values, honesty and probity he has gained a significant level of insight into these psychological processes and the path that has brought him to this point. In my opinion he has developed a good understanding of his basic attitudes and actions which have led to the charges against him. He acknowledges that he has been misleading and dishonest. I appreciate there are charges which he is contesting and on which the panel will rule which may shed further light on his level of insight. Notwithstanding it is my opinion that as a result of his self-reflection and engagement with outside agencies, professional and therapeutic, he has recovered an appropriate level of probity and his capacity to be honest with himself and act according to his ethical values of providing good quality and respectful clinical care.”
“The scale and extent of your dishonesty in retrospectively altering clinical records both in order to conceal inadequate clinical practice and to mislead the NHS, does suggest a harmful deep-seated professional attitudinal problem which engages the question of erasure.” vii) The PCC also noted that paragraph 59 of Appendix A to the ISG identifies “submitting fraudulent NHS claims” and “falsifying and/or improperly amending patient records” as examples of dishonesty in professional practice which are capable of being “highly damaging to the dental professional’s fitness to practise and to public confidence in the profession”