Manori Balachandra v The General Dental Council

The Appellant was a dentist providing mainly NHS services in Fareham, Hampshire from her own practice with 3-4 other dentists and support staff.

The Respondent is the professional conduct regulator for dentists in England and Wales.

NHS England has a Business Services Authority [NHSE] which provides services to dentists and the NHS. Dentists who work for the NHS make claims for payment for their work to NHSE. These were either made on paper or online. The NHSE also carries out quality control reviews of NHS dentists providing NHS services.

In February 2023 the Professional Conduct Committee [PCC] of the General Dental Council [GDC] erased the Appellant’s name from the register of dentists so she cannot practice dentistry any longer in England and Wales. The main reason for that decision was that the PCC found that the Appellant had made handwritten clinical notes about 11 patients [The 11] long after the treatments were provided and then sought to persuade the PCC that the notes were contemporaneous. The Appellant denies the assertion of post event note fraud and seeks to overturn the findings made by the PCC on that alleged wrongdoing and the decision on erasure as the appropriate sanction. There were less serious charges relating to some clinical failings and poor or withdrawn billing which the parties agreed were not central to the appeal. There were charges found proved which are not appealed.

For the hearing I was provided with 7 lever arch bundles of evidence and documents, a core bundle of skeleton arguments, the PCC decision and an authorities bundle. Near the end of day 2 of the appeal I was provided with 2 supplementary bundles which contained 90% duplicates of many of the documents in the main bundles, some additional documents and a case relied upon by the GDC.

Under S.29 of theDentists Act 1984[DA84] the Appellant had the right to appeal the decision of the PCC directing her erasure by notice delivered within 28 days:

On appeal this Court has the following powers under S.29 DA84:

CPR Part 52 governs this type of statutory appeal. CPR PD52D applies, in particular para 19(1)(c). 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.

The power which this Court has to set aside the PCC’s rulings and findings is set out in CPR r.52.21(3). If this Court considers the PCC findings or rulings to be wrong or unjust due to serious procedural or other irregularity this Court can allow the appeal, substitute any decision which the PCC could have made or remit to the PCC for further consideration.

Under CPR r.52.21(4) the appeal Court may draw any inference of fact which it considers justified on the evidence.

The correct approach to findings of fact and PCC reasoning in appeals by way of reanalysis was considered by Sharp LJ and Dingemans J in the Divisional Court in General Medical Council v. Jagjivan [2017] 1 WLR 4438. The following principles were set out (at para. 40):

Set out below is a table of the charges laid against the Appellant and the PCC’s findings. NAR means “no adequate record”. “Brown Card” means the handwritten records which were made on NHS standard brown cards.

Ground 1: The PCC were wrong to refuse to stay the proceedings in relation to the Brown Cards charges.

Ground 2: The PCC were wrong to find as a fact that the CQC report in 2013 did not refer to the Brown Cards.

Ground 3: The PCC were wrong to conclude that each (Brown Card) charge was proven.

Ground 4 and 5: The PCC were wrong to find as a fact that the Appellant made backdated Brown Cards and submitted them to the NHSE and GDC.

Ground 6: The PCC were wrong to conclude that the admission of Doctor Pal’s evidence in respect of record keeping prior to and at the time of the charges would be prejudicial to the GDC’s case. His evidence was admitted at stage 2.

Ground 7: Sanction. The PCC were wrong to erase the Appellant from the register. Suspension would have been the appropriate sanction.

Ground 8: The PCC were wrong to impose an immediate suspension order to cover the appeal period.

The first issue in the appeal was whether the Appellant’s application to stay the hearing or dismiss the charges in relation to the Brown Cards for abuse of process should have been granted. If this is decided in the Appellant’s favour then the Appealed Findings will be set aside, but not the Unappealed Findings.

The second issue is whether the PCC were wrong, on the evidence before them, or whether it was procedurally seriously irregular and/or unjust to make the Appealed Findings relating to dishonestly back dating the handwritten Brown Cards under the asserted frauds 1 and 2 (which I shall explain below) at all or for the reasons given.

The third issue is whether the sanction of erasure was wrongly imposed taking into account the Appellant’s 7 years of safe practise from 2016 to 2023; her otherwise good character; her CQC reports and other mitigating evidence.

I have carefully read the witness statements and expert reports of the following witnesses and I have read the transcript of evidence and bundles.

Professor Morganstein, dentistry expert.

The Appellant.

I set out this factual chronology from the evidence. The PCC decision contained only a short chronology. For all findings of fact I apply the civil standard of proof.

The Appellant qualified in 2000 with a BD from KCS in London. She qualified as a dentist in 2001. She worked at various dental practices until she set up her own, mainly NHS practice, in Fareham in 2007. She started as a sole practitioner but built up the practice so that by 2023 she had 3-4 other dentists working with her, 3 - 4 full time dental assistants, a practice manager and an admin clerk. The Appellant gave evidence that the practice turned over around £543,000 pa in NHS dental work, representing around 21,000 UDAs pa (units of dental activity) and 80% of the practice was NHS work. She asserted in her live evidence that she had used Brown Cards to make handwritten notes ever since she had started work. Her practice started using a computerised system in 2009. She gave evidence that her usual practice after 2009 was to have the Brown Card in her hand with the patient as they interacted and the computer was behind her. She made all her own notes on the Cards and the computer, no one else did. Her dental assistants put the Brown Cards in her room each day for her for each patient on her day list.

The CQC inspected the Appellant’s practice on 17.10.2013 and reported in November 2013. They concluded that the practice respected and involved the patients, provided care and welfare to patients, had appropriate cleanliness, infection control, assessment and monitoring of the quality of its services. They noted that the four patients they spoke to were happy with the services they received. The staff were noted as helpful and welcoming. The complaints procedure was recorded as robust. At the time of the visit there were four dentists working in the practice together with two hygienists and three dental nurses. One patient described the practice this way: “all the staff are lovely and the atmosphere is very relaxed here”.

In April 2015 the Appellant had an appraisal by the Wessex NHS health education team. The Appellant was described as a caring practitioner who works hard to ensure her patients receive the best possible care. There were no areas of concern in the report of the review which covered patient's interests, patient communication, obtaining valid consent, maintaining and protecting patients’ information, having a clear and effective complaints procedure, working with colleagues in the patients’ best interests, maintaining and developing professional knowledge and skills, raising concerns if patients are at risk and making sure personal behaviour maintains patients’ confidence in the Appellant and the dental profession. The reviewer concluded (Manori is the Appellant’s first name):

As a result of a complaint letter received by NHSE dated 18.10.2016, on 23.1.2017 the NHSE informed the GDC that they were investigating the Appellant under their framework and in May 2017 informed the GDC of a proposed record card review. In May 2017 Miss Philpott of NHSE asked DA to review the clinical records of the Appellant. DA was briefed to assess the quality of record keeping, the quality of dental care, the standard of NHS administration and whether the claims for payment were appropriate. He went through the thousands of claims for payment made by the Appellant to the NHSE and chose 11 patients. It was not a random choice. There was logic to it. He chose a cross section of different types of work in different payments bands. Claims for payment are made by her by filling in FP17 forms and sending them to the NHSE. On 8.5.2017 he wrote to the Appellant asking for the clinical records for the chosen 11 patients [The 11] for work done between January 2014 and April 2017. He specifically asked for the digital records (on her computers) to be printed out in hard copy and put with the handwritten records and given to NHSE. This was followed up by Moira Philpott of NHSE calling the Appellant on 12.5.2017 and then emailing her for the same clinical records.

I find as a fact that in the Appellant’s practice she made clinical notes in two ways: firstly, on her computer system, which, on her evidence, she had personally developed. This system had template spaces serving as a checklist for all aspects of her dental care. I will call these electronic records [ERs]. In addition to the ERs the Appellant made handwritten records on NHS standard forms supplied free to her by NHSE for clinical notes. These are called “Brown Cards”, or more specifically FP25 cards. These were stored in the NHS provided “Brown Envelopes”, more specifically called the FP25A envelopes. These are A5 in size (smaller than A4). I was given a Brown Envelope during the appeal. It fits the Brown Card inside very snugly and could not hold an A4 sheet unless the latter was folded. In her evidence the Appellant asserted that most of the time the Brown Cards were filled in contemporaneously (same day), but the entries were sometimes made later if there were either IT issues or she was too busy to do them with the patient in the room.

The Appellant gave evidence and the GDC accepted that she delivered the original records for The 11 to NHSE in Southampton on 29.5.2017 by recorded delivery. An unknown person then sent them to Darlington and an unknown person working for or with Capita scanned them into the NHSE’s system. This set of scanned copies was called Set A. As I shall explain below the GDC did not put before the PCC any protocol for the scanning/copying of original clinical records by permanent or temporary staff working for Capita, despite the serious nature of the disciplinary proceedings which might result from analysis of the medical records. Nor did they explain in a witness statement whether the NHSE’s sub-contractor, Capita scanned the records for them. As to the involvement of Capita, in scanning or returning the original records, no evidence from them was provided to the PCC. However, in an email from David Akuoko (the clinical adviser to the NHSE) to Yamsin Khaira, dated 10.3.2020 he said this:

An email dated 12.3.2020, Malcolm Apted, of NHSE responded thus:

I find, from this evidence, that Capita probably did the scanning in Darlington. The records must have been transported up to Darlington by NHSE. The PCC made no findings on this.

Set A was then sent to DA in a digital format. DA worked from home and provided his report on the records dated 19.6.2017. In the report he described the records as having come from a period between April 2015 and April 2017 (different from the requested period). He noted that lab dockets had not been provided to him and he was missing 2 patients’ clinical entry records. He noted that there were 11 patients’ records and for these patients the practice had made claims for 28 courses of treatment. In brief summary he raised concerns about: the standard of records keeping for all the 11 patients reviewed; radiography for some patients and some quality of care concerns. In relation to record keeping he noted that: there were no medical history checks for patients: 2,5,7,8,10 and 11; BPE scores were not noted for patients 2,5,7,8 and 10; for patient 3 the name of the dentist in the record was different from the performer in the FP17; there was a lack of detail of recall times and oral health risk assessments for patients 1,2,6,7,9 and 10; clinical records for claims 1 and 2 were not provided for patient 4; prescription records for antibiotics (justification and duration) were not satisfactory, or for extractions (no history check or update) for patients 1,5,10 and 11. He made no criticism of any lack of analysis of X-rays. Of the 28 claims for payment made to NHSE, 16 were satisfactory, 2 had no clinical records to back them up, 6 were considered inappropriate due to failure to meet the standard of care required to claim and 4 had no evidence of full mouth examinations. In his conclusion DA stated he had only been able to review what was provided, namely the scanned records. He recommended further information gathering and consideration thereafter of disciplinary proceedings. He then deleted his digital copy of the records and informed NHSE that they could return the original records to the Appellant. In his third witness statement DA was asked whether he had seen the Brown Cards for the 11 patients when he provided his report. He asserted that he had not.

The original records were returned by NHSE to the Appellant by “Capita”, on her evidence, in July/August 2017.

Then in December 2017 DA’s report was sent to the Appellant by NHSE. As a result, the Appellant instructed lawyers and notified her insurers.

The key factual issue in the case, identified in the PCC’s decision, was whether the Brown Cards were provided to NHSE on 29 June 2017 by the Appellant when she hand delivered the original records to the Post Office and sent them by recorded delivery. However, in my judgment the key issue was whether any Brown Cards were actually written contemporaneously for The 11 patients. The root of the GDC’s case on fraud 1 was that all or most of the Brown Cards were “faked” at some time between December 2017, when the Appellant was sent DA’s report and June 2018 when the original records were again requested by NHSE and given back to them. On fraud 2 the GDC’s case was that further Brown Cards were made after Professional Morganstein’s report and then disclosed in 2021.

In her witness statement the Appellant commented as follows. Set A was not a complete copy of the papers that she sent to NHSE in 2017. She asserted that she had sent the Brown Cards in their Brown Envelopes for all The 11. However, NHSE/Capita had only scanned and copied the Brown Envelopes and had overlooked the cards inside. She raised, in particular, two scanned copies which showed the Envelopes with the middle of the top of the Brown Cards poking out but inside them. No Brown Card was copied. These copies were shown to me during the appeal hearing and both do indeed show a Brown Card inside. One had “2010” written in handwriting at the top of it. In addition, the Appellant criticised the scanning because she asserted that for numerous documents only one side of double-sided documents had been scanned. The Appellant set out in her witness statement examples of the scanning errors for each of The 11. So, for instance, for patient 1 only the front side of the Brown Envelope had been scanned, not the rear and only the front side of the FP17 PR form had been scanned.

Either in December 2017 or on 25.1.2018 the NHSE sent a letter to the Appellant. I have not seen the letter. I understand it contained DA’s allegations of conduct and records failures for The 11. The deadline for reply was 4 weeks. The Appellant asked for more time.

According to Victoria Brazier’s evidence, (she worked at the GDC) the NHSE informed her in February 2018 that the NHSE had closed its case because there was “no evidence of fraud” found. The date for this evidence from Ms. Brazier was probably not correct. I suspect the date was mistyped. This probably occurred in 2019. The GDC requested a summary of the NHSE’s report.

On 22.5.2018 the CQC reported on their face to face regulatory inspection of the Appellant’s practice which took place on 25.4.2018. They found that the provision of care was safe and in accordance with the relevant regulations. They found that the practice was providing caring services, responsive care, was well led and concluded that:

A plain reading of that report would suggest that the Brown Cards were included in the review but the PCC found they were not. The Appellant sent her substantive response to the NHSE via her solicitors on 27.6.2018. Mr Grant, her solicitor, drafted the response letter which pointed out to NHSE that they had overlooked the Brown Cards when instructing DA to report. Mr Grant also enclosed the CQC reports and a report from Mr Renshaw, an expert, in which he expressed the opinion that when looking at the ERs and the Brown Card records for each of The 11, the Appellants’ clinical records were adequate and DA’s report was therefore based on a false premise. Mr Grant re-sent the original patients’ clinical records, including the Brown Cards inside the Brown Envelopes, to NHSE on the same day.

Mr Renshaw’s report dealt with each of The 11. The report is unsigned and undated. His CV is impressive. For each charge in relation to The 11, Mr Renshaw advised that the appropriate notes were set out in the Brown Cards. Mr Renshaw rejected each of the allegations of clinical lack of care made by DA and gave explanations given as to why. It is noteworthy that he supported some of the criticisms of the inappropriate claims which the NHSE had raised.

Miss Ward was working at the NHSE on a temporary contract from January to July 2018. She received the original patients’ records from Mr Grant in late June 2018. On the evidence I find by then that the Capita contract had ended and the NHSE did its own scanning and copying. She asserted that she recalled (in her November 2020 witness statement) that the records were received in one large lever arch file “and a separate envelope for further records. … pieces of paper of all different sizes”. She recalled having difficulties scanning them. She could not recall if they were all originals or some copies but could not contradict what Mr Grant said in his witness statement that they were all originals. She did not attempt to scan all the documents in the lever arch file “they were mainly radiographs” or any documents which were “the incorrect size”. She asserted that, “therefore I scanned what I could” and the scans, together with the lever arch file, were later put before the NHSE PAG (Performance Advisory Group). She stopped working for NHSE on 28.6.2018 because it was her last day working there. So, she must have scanned the documents either on 27^th or 28^th June 2018. Ms Ward makes no assertion that the NHSE had any protocol for how she should scan original notes or which she should scan or not scan or for indexing the originals received.

The NHSE PAG meeting took place on 5.7.2018. I have read the resulting letter dated 11.7.2018 which explains why the case was referred on to the PLDP. The allegations concerned the lack of record keeping and some inadequate care.

The original clinical records for The 11 were returned to Mr Grant in August 2018. I interject here some very strange evidence from Miss Philpott, the deputy director for re-validation, in her witness statement dated 28.10.2020. She sets out two requests by Mr Grant, one dated 18^th and the other dated 24^th July 2018 for the return of the original clinical records. She explained that she arranged for a colleague to do so. She then went on to assert that:

Within less than a month the NHSE asked again for the original clinical notes to be returned to them. This was the third time. I have not seen that correspondence. Mr Grant gave evidence that on 12.9.2018 he couriered the originals of the 11 patients’ clinical records to them. The receipt of these was confirmed by Miss Philpott of NHSE by email which undermines her evidence that she never had originals.

It is agreed that the originals were never returned to Mr Grant or the Appellant thereafter. They were shredded (according to the findings of the PCC) or lost. No direct evidence was put before the PCC as to how that loss occurred. It is unimpressive that this should have been allowed to occur by a regulator.

Miss Philpott asserted in her witness statement that the NHSE PLDP (Performers List Decision Panel) met on 17.1.2019 and decided a further clinical review of the Appellant’s practice was needed.

In parallel with the NHSE regulatory investigation and separate from it, on 22nd February 2019 the GDC wrote to the Appellant asking for the dental records of the same 11 patients. They requested digital records in digital format and all paper records. A report had been received from the NHSE by the GDC in early 2019 and used to form part of a Rule 4 letter according to V Brazier. I have not seen that report. On 25.3.2019 the GDC sent the Rule 4 letter to the Appellant asking for comments on the detailed allegations DA had raised in 2017 for The 11 which the GDC had finessed.

Only 16th of April 2019 Elizabeth Tyler, a dentist and clinical adviser to the NHSE, alongside Ms Philpott, the Appellant and his solicitor, carried out a record card audit on behalf of NHSE at the practice in Fareham. Miss Tyler considered the computerised clinical notes of the practice but did not ask for, so was not given, the handwritten records on Brown Cards. She also considered the FP17DC and FP17 PR forms and radiographs. The objective was to assess whether the information required to comply with record keeping guidelines was recorded. Her methodology was to look at the dental records of 25 patients seen by the Appellant on the 19th of March 2019. Miss Tyler considered specifically whether the records recorded: the medical history; the patient complaints; dental charting; soft tissue examination; basic periodontal examination; radiographs; diagnosis; discussion of treatment options; type, amount and batch number of local anaesthetic administered; oral hygiene instructions; smoking cessation advice; diet advice; fluoride advice; recall interval; appropriate referrals for secondary care; hygienist referrals and the NHSE payment claim forms. Miss Tyler concluded that all 25 patients had appropriate records. She also noted that:

In June 2019 Mr Grant received a full set of copy clinical records for The 11 from the Appellant.

On 4.7.2019 Mr Grant sent to the GDC by email (16 separate ones) digital copies of the records of 10 of The 11 (missing patient 4) which the GDC had asked for.

The NHSE investigation of the Appellant closed in August 2019 with no disciplinary action. Miss Philpott gave evidence to the GDC in her witness statement that:

The GDC investigation was only just getting started. On the 22nd of November 2019 Capsticks asked the Appellant’s practice for 15 patient records. Jozelle Patterson (the practice manager) identified these and collected the paper dental records. She printed off the records for all 15 patients from the computer. Then, for each of the patients, Ms Patterson pulled out what she described as the blue forms, the Brown Envelopes and the purple forms. The blue forms were patient declaration forms which state whether a patient pays for their treatment or whether it is provided on the NHS. The Brown Envelopes contained the patients’ hand-written medical records and X-rays. The purple forms were the patients’ treatment plans. She had some paper records for all fifteen of these patients. These also included the FP17 forms and consents for treatment forms. She sent these, by post, to Capsticks on the 11th of December 2019.

On 20th January 2020 the practice received a further request from Capsticks to carry out urgent checks for any additional records for 10 of the 15 patients previously requested. Miss Patterson did so and found no additional records. By this time NHSE and the GDC had made at least 7 separate requests for the same patients' records having lost the originals. In my judgment this was a heavy burden to place on any NHS dentist’s practice and was caused by the chaotic system the regulators had in place for handling records.

In October 2021 the Claimant submitted her witness statement dated 25.10.2021 with copies of the records for The 11.

On the 2nd of November 2021 Capsticks informed the Appellant that the copies of the 11 patients medical records provided on the 25th and 27th October 2021 included additional hand-written Brown Card records which they had not previously seen which would lead to additional dishonesty charges.

The GDC case on fraud 1 was advanced on the basis that the copy records (which I have found were scanned by Capita) in Set A did not include any Brown Cards thus they concluded that there never were any original Brown Cards in existence for the 11 patients at that time. It was advanced on the basis that the Brown Cards provided as originals to the NHSE in June 2018 were fraudulently backdated by the Appellant. In addition, the GDC alleged a second fraud, namely that some more Brown Cards for some of The 11 had been faked by the Claimant long after 2018, and these were first delivered to Capsticks in October 2021.

Andy Lee gave a witness statement dated September 2020. He is a service development lead for processing payments within the NHSE. He advised that claims are made for payment by NHS dentists on form FP17. From the 1st of May 2019 all claims are made online via the compass system used in dental practices. Before then claims could be made on paper or online. He advised that claims can be amended by submitting a new claim form and back referring to the old claim and this can cover deletion as well. His evidence was that a letter of withdrawal could only be effective if the original claim was made on paper rather than online. He stated that the Appellant’s practice submitted digital claims in the relevant period from April 2015 through to April 2017 and therefore it was unlikely to make applications to amend claims for payment on paper. In his second witness statement dated March 2021 he exhibited a list of withdrawn claims by the Appellant.

Deborah Ward was a programme manager for the NHSE. She was working on a temporary contract from January 2018 to 28th June 2018. I have incorporated most of her evidence above. When she left NHSE on the 28th of June 2018 she emailed Teresa Holt stating that the original documents came as a big lever arch file with plastic wallets by post and she locked them in the bottom drawer of her pedestal when she left. Mr Grant wanted them back after the PAG meeting. because they were original documents. She asked for them to be returned after the PAG meeting. In her second witness statement she described being unable to give evidence about the detail of the documents received in June 2018.

Jennison Baskerville provided a witness statement dated September 2020. She described the process that the NHSE used to gather information; to have it analysed by a clinical advisor; if there were concerns: to escalate those to the PAG who could in turn escalate to the PLDP. She was not in post at the time of the relevant events but summarised them and her evidence is incorporated in the chronology above.

Teresa Hobbs provided a witness statement dated October 2020. She worked for NHSE in 2018. She arranged for a colleague, Ms Russell-Manning to return the original clinical records to Mr Grant in the summer of 2018.

Moira Philpott provided 2 witness statements for the PCC, one in April and the other in October 2020. She managed the records audit in 2017 and hired David Akuoko to be the clinical advisor. I have incorporated her evidence in the chronology above.

Jozelle Patterson was the deputy practice manager at the practice in 2017. Her evidence is incorporated in the chronology above.

Victoria Brazier was employed by the GDC from April 2019. She did not have conduct of the matter before then. She reviewed the case file which had been managed by Clare Stringfellow, Dilvinder Sander and Lauren Brown.

Professor Morganstein is a dental surgeon who is the head of comprehensive dental care at Barts and the Royal London dental school. He has an impressive CV. He reported on the 10th of June 2021 instructed by the GDC. In his report he stated that the allegations related to a period between the 3rd of December 2015 and the 3rd of March 2017 (which was not the original period covered by DA) and covered: inadequate standard of care and inadequate record keeping. He referred back to a case examiner’s report dated the 1st of August 2019 which I have not seen. He stated his opinion was based on four sets of copy patient records. Set A was the name for the scanned records by the NHSE from what he called July 2017, but he must have been referring to June 2017. Set B was a copy of the records sent by the practice to what he called “Clapsticks solicitors” (sic), which I assume related to those sent in December 2020. Set C was a copy of records provided by Software of Excellence. Set D was a set of copies provided by the Appellant, but he did not provide a date for those. He noted that the Appellant kept clinical records electronically using a template for treatment planning and examinations. He also noted the Brown Cards provided for the patients. He went on to conclude (I infer only in relation to the ERs) that the Appellant did not apply appropriate clinical treatment as follows: (1) related to the BPE scores obtained; (2) the automatically generated recall period of six months did not comply with NICE recommendations and (3) many of the electronic records were duplicated multiple times. He advised that there could be proper reasons why it may not have been possible to provide contemporaneous records, for instance technology failures or emergencies or time issues, however he advised that it should have been possible to put an entry in the electronic records stating this. Finally, he advised that the Appellant recorded inappropriate or inaccurate information in relation to antibiotic prescriptions in the ERs. Therefore, the Appellant’s care fell far below the expected standards (I assume that he meant this applied just to the ERs). When looking at the justification for these conclusions he sought to give his “expert” opinion on whether the Brown Cards were contemporaneous. He analysed the Brown Card records and stated the notes were continuous, not split into paragraphs and there were no headings. He asserted that the Brown Cards included a summary of the issues raised in the DA report as well as denials by the Appellant and rebuttals. He asserted that the style of the records did not reflect contemporaneous records and there were no gaps or headings but instead they were in narrative format and he asserted they resembled “a commentary”.

Having reviewed the Brown Cards provided for 10 of the 11 patients he said they were “isolated” to the extent that they only related to the visits identified by the case examiner and had not been provided for “any other patient visits”. For the reasons I shall explain below I consider that that was a particularly insightful comment. He advised that there should be equivalent sheets of handwritten records for all the other appointments that the Appellant had with other patients and advised “these brown card records should be available for inspection”. This advice was never followed by the GDC.

The Professor advised that GDC standard 4.1 required dentists to make and keep contemporaneous complete and accurate patient records. The Professor then went through each allegation for each patient. In summary it was his opinion that the ERs were inadequate but when combined with the Brown Card records they were adequate. I will not go through his summary of each of the patients. However, as an example, taking patient 1, there were nine appointments, five with the Appellant and four with other dentists. The GDC clinical advisor had identified that the ERs were inadequate because the sections for diagnosis and treatment were incomplete, there was no record of oral health risk assessment for caries periodontal disease or oral cancer and no justification was written for the prescribed antibiotics. He accepted that the Brown Card records filled those gaps but he provided the caveat that if the Brown Card records were not contemporaneous then that would be a breach of the relevant standards. In relation to some of the prescriptions of antibiotics the Appellant accepted that they were outside clinical guidelines. He did not assert the Brown cards were faked.

Other than having the experience of seeing lots of dentists’ records through the years, I do not understand him to assert expertise in the authenticity of documents. There is no such expertise set out in his CV.

In his live evidence the Professor Morganstein confirmed his reports. He was not cross-examined.

The second expert instructed by the GDC was Julian Scott. He provided two reports: 6.5.2021 and 1.11.2021. His specialist field is the propriety of dental practice on claiming fees from the NHS. His CV shows he graduated dental school in 1969 and after five years in the Royal Navy moved into general dental practise for 22 years. That would mean that he stopped general dental practice 1996. Since then he has been an adviser on dental practice, a research fellow, taken a degree in philosophy, and he retired from the Dental Practice Board in 2008. By any measure, his experience in dental note making himself stopped 27 years ago. He reported on 6.5.2021. He set out the bands for claiming payment for NHS treatment and summarised the FP17 claim forms that dentists have to submit to claim payment for various courses of treatment which they have provided. He analysed 30 claims for courses of treatment looking at the computer records and the Brown Cards for The 11. He raised 4 propriety issues which he considered were significant. The first was submitting claims for a higher value band than appropriate. The second was submitting inaccurate documentation in support of the Appellant’s assertion that claims had been deleted before being assessed. The third was modifying computer based clinical records to support the assertions that there were justifiable reasons to withdraw or delete claims following receipt of the GDC case advisors’ report. The fourth was preparing non-contemporaneous Brown Card records to support two claims numbered 6 and 26. He also mentioned less significant propriety issues relating to splitting courses of treatment for four separate claims and one unjustified claim for Band 2 urgent treatment. He analysed the copy records which he had seen. He summarised that he was provided with five sets of copies of the patients’ clinical records. Set A was printed on 28.5.2017. He noted that in addition to the printouts of the computerised records, the copies included various forms, documents and radiographs and the Brown Envelopes but no Brown Cards. As for Set B, he described these as apparently copies of those sent to NHSE on 27.6.2018 but noted that the copies for patients 6 through 11 were stamped by NHSE and were identical to those in Set A. As for record Set C, he described these as relating to patients 1 to 11 having been printed in late May and early June 2017. However, he noted that these included copies of the Brown Cards. He also stated:

Mr. Scott asserted that a purpose of his review of the four sets of records (he had listed 5) was to establish the authenticity of the material. He noted that for patients 2 to 11 a claim for treatment payment was submitted and a subsequent submission had been made to reduce the allocation of units of dental activity to zero. For each claim he then considered whether the letter of deletion was likely to have been genuine or not. He then went on to consider the Brown Card records. In relation to the original clinical records sent to NHSE in May 2017 he advised “there were no FP25 record cards sent with the records.” I do not understand how Mr Scott could have been so sure of that fact which was wholly a matter for the PCC not him. He never provided a supplementary report after the Appellant served her evidence asserting different facts.

I question whether he had the expertise or sufficient information to be able fairly to determine the facts of whether the originals were or were not sent to NHSE and on to Capita just by looking at the photocopy records. He had no idea what happened internally in NHSE or Capita by way of scanning. He did not know who did the scanning or under what protocol. He saw no index of the documents received. He did not visit the practice and see what other hand-written records the Appellant made on the relevant days. I shall make findings on this below.

In relation to record Set B, he noted correctly that this set of copies did include the Brown Cards. He advised:

None of the detail of the evidence to support those findings was laid out in the report. So not one of the Brown Card notes was extracted to evidence the opinion. Unpacking this evidence, the foundations for the opinion were: (1) the Brown Cards were in identical format, (2) they were handwritten, (3) they were dated, (4) no other before or after entries were provided, (5) the entries covered the points raised by the CA. In relation to those foundations, in my judgment none has any logical merit. As to (1), they were on NHS standard form Brown Cards so the format is irrelevant. As to (2), the expert evidence was that hand-written notes are sufficient. As to (3), the provision of a date on the note is required by the dentist’s guidance. As to (4), the lack of before and after entries is highly relevant but should have been requested by the GDC who were firmly advised by Professor Morganstein to do so in his report. But the GDC failed to do so and neither did Mr Scott. In addition, no visit to the practice was carried out by Mr Scott or the GDC to look at the notes made by the Appellant on other patients’ examinations and treatment on the same days. As to (5), the content included the sort of information which a dentist should write on such examinations according to all of the other dental experts. Thus, I struggle to understand how Mr Scott came to this firm conclusion on fraud on the basis of the 5 foundations he has set out based merely on photocopies.

In his live evidence Mr Scott explained that between 1996 and 2008 he worked as a dental officer reviewing dental records for the Dental Board. During that time he frequently visited dental practices to “challenge them”. After that he worked as a privately funded expert. He had done 100 cases in the previous 6 years. The vast majority of the records he looked at were Brown Cards until into the 2000s. More recently most of the records were ERs. In chief, when asking Mr Scott about his experience of considering if records were made contemporaneously, counsel for the GDC asked this question:

As was highlighted in cross examination, Mr Scott provided his opinion on the scanning in Darlington asserting that: “whilst it is possible that one or two sheets may have been missed from the scanning exercise, it is highly unlikely that all the FP25s which were provided with this group of records would be missed.” On this point, I do not accept that it was within this expert’s field of expertise or experience to advise on the likelihood or otherwise of scanning errors by Capita in Darlington. He is not expert on these factual matters. More troubling is that he was prepared to advise without knowing who did the scanning, the training (if any) of the operative, or under what protocol it was done and what the staffing issues were at the time in Capita and without seeing an index of the original documents received. He had none of this information. He then gave evidence of his general experience of the scanning team at the NHSE, but he had retired from the Dental Board in 2008 before the NHSE BSA was even set up and did not work for NHSE. In any event such facts were for the PCC to decide not Mr Scott. In my judgment, without direct evidence of what happened at Capita in Darlington in June 2017 it was inappropriate for Mr Scott to seek to give any evidence on what might have happened there and in doing so he stepped well over the boundary between being an independent expert and an advocate for the party instructing him. Mr Scott accepted under cross examination that he was in no position to advise the PCC on whether the Brown Cards had been delivered to NHSE when the original notes were scanned in 2017.

Under further cross-examination Mr Scott withdrew the implication in his report that the Brown Cards were created after the event:

At the end of cross-examination it was put to Mr Scott that if the copy of the records held by Mr Grant from 2019 onwards contained all the Brown Cards, his opinion that the Brown Cards disclosed in 2021 were backdated to answer Professor Morganstein’s report from 2021 would be unsustainable. He accepted that he would have to withdraw his opinion that the second fraud occurred. In answer to questions from the PCC Mr Scott stated that it was unusual for dental practices to keep handwritten and ER records save when they were changing over from the old way to the new way. He was also asked his opinion on the copy of a scan of a Brown Envelope for patient 4, and what he made of its “condition”. The PCC panel member had calculated that 10 Brown Cards would have been inside it if they had been delivered in 2017 with it:

The Appellant’s evidence in chief to the PCC was contained in four witness statements. The first three were dated 25.10.2021, 28.10.2021 and 2.11.2021. These witness statements were unhelpful in that they substantially duplicated the contents of each other. Starting with the first the Appellant asserted that when she read DA's report she saw that he had not been provided with the Brown Cards so she arranged for the originals to be sent to NHSE in June 2018 with her response letter. She asserted that in 2017 NHSE only scanned the Brown Envelopes and pointed specifically to one Brown Envelope which showed that it had a Brown Card inside which had not been copied. During the hearing two examples of copies of envelopes from the notes in Set A were highlighted to show scans of the Brown Envelopes which clearly showed Brown Cards inside. The first is in appeal bundle one at page 178 for patient one and the second is in bundle 1 at page 762 for patient five. I should say that the photocopying of these records was so bad in some of the Sets that it was almost impossible to distinguish whether the card is inside but it was possible to distinguish that the Card was inside on others. This evidence is direct and incontrovertible factual proof that Capita failed to scan at least two Brown Cards. It is relevant because the GDC and Mr. Scott stated that no Brown Cards were scanned or copied by Capita in June 2017, only the envelopes and the GDC used that as a justification to allege that none existed. This piece of evidence has been overlooked by the PCC in its decision.

The Appellant also explained, in relation to the scans taken in June 2017 by Capita, that for many of the documents only one side had been copied. She provided a full list of incorrect scans. She then set out in her witness statement, patient by patient, date by date, her response to each of the allegations made by DA, referring to the contents of her notes in the Brown Cards.

In her second witness statement the Appellant dealt with a second set of charges which had been raised against her on the 8th of October 2021 in relation to additional Brown Cards which had been provided to the GDC by the Appellant’s solicitors. The Appellant answered the new charges. She challenged Professor Morganstein’s opinion and the conclusion that it was implausible for her practice to keep both electronic and hand-written records simultaneously. She relied on the CQC inspection in April 2018 to refute that suggestion and on the words “written or typed” and “stored paper records securely”. She also relied on the CQC report dated October 2013 and the words “we saw that records were updated during or immediately following an appointment. This ensured that chronological records were maintained”. She asserted that it was not plausible that she would fraudulently construct records after the event when she could merely have admitted a lack of handwritten records and had that remedied through training and reflection, in which event she would not have faced any serious risk of erasure. I regret to say that the rest of the responses for each new charge were word processed copies of the response for patient one and therefore were unhelpful and bulky. I do not deal with the responses on the matters which are Unappealed.

In her third witness statement the Appellant again recited swathes of her previous witness statements. She helpfully set out details of the defective scanning carried out in June 2017 patient by patient and then once again set out her responses to each of the charges.

In her live evidence in chief the Appellant explained that she had always used Brown Cards to make clinical records and continued to do so after computerisation came into the practice in 2009. She was sure she delivered the original records with the Brown Envelopes and Cards to NHSE in June 2017. She put everything together herself. She printed the ERs and collected the FP17s, the FP17DC forms, X-rays, lab dockets etc. She went to the Post office and sent them recorded delivery. For each patient there was one Brown Envelope included with the other documents. The Appellant’s case was that she took a master copy of all the records before she posted them out [the Master Copy]. The originals were sent back by recorded delivery and the Appellant opened the bag. The Brown Cards were all there. When the Appellant received DA’s report in December 2017 she read it. She instructed Mr Grant. She handed the Maser Copy to Mr Grant in June 2019. She had written contemporaneous Brown Cards for each patient visit. She had hand-written cards for every patient. She started that this would be obvious on any spot examination of the practice by the GDC should they have visited. She stated that when Ms Tyler did her inspection in April 2019 she only inspected the computer records not the Brown Cards.

Before cross-examination the GDC applied for disclosure of the Master Copy. This was directed on 9.11.2021 and a bundle of copies was delivered to Capsticks on 12.11.2021 with a witness statement from Mr Grant and the hearing resumed on that day. Mr Grant could not confirm that he had provided the exact Master Copy but did confirm all the documents were delivered to him in June 2019.

At the resumed hearing in February the Appellant was cross-examined. She was not challenged on her evidence that she stored the Brown Envelopes in the garage at the practice. During questioning on the Set A this exchange took place:

The GDC accepted the Appellant’s evidence that the scanning was defective in that it did not cover all of the original documents delivered to NHSE. The Appellant then pointed out that Brown Cards were visible when inside the Brown Envelopes. I note that this is because of the semi-circular finger “cut out” at the top of the front of the Envelope. She hand-wrote the year at the top of some of the Brown Cards. The Appellant was asked about the scans which showed Brown Cards inside the Envelopes which Mr Scott conceded in his evidence showed that. It had “2010” on it which the Appellant conceded was outside the date range requested by DA. The Appellant was not challenged when she gave evidence that there were 70 copies of one side of documents which the scanner had failed to copy (other than the Brown Cards). The Appellant was then asked about patient 4 and she explained that this patient had been coming so long to the practice there there were 2 or 3 Brown Envelopes for him. Not all were provided to the GDC being outside the date range. One was provided which was outside the date range but had no Brown Cards in it. For patient 4 the Appellant explained that she sent everything on this patient who had been with her from early days, to her solicitors. In submissions in the appeal the GDC relied on this passage of answers to show the lack of credibility of the Appellant’s evidence:

The Appellant was asked how many days per week she worked and how many patients per day she saw and it was suggested that she would have been producing a lot of Brown Cards. She agreed. That was why they were stored in the garage. She had to store the notes for 11 years. The Cards were provided free by the NHS. She started a new card for each appointment. In what I regard as a key passage in her evidence the Appellant was asked this:

It was put to the Appellant that the Brown Cards were not contemporaneous because the pages did not fit together or flow and because of their format and content addressing the criticisms of DA and she denied that assertion.

The PCC asked various questions about her modus operandi at the end. She was asked about repetition in her notes relating to patient 4. She was asked why she had no nurse to write the notes. She responded that nurses might miss something of chart incorrectly.

Mr Paul Grant was the solicitor from BSG solicitors who acted for the Appellant. In his first witness statement he gave evidence which I have summarised above in the chronology about him sending the original records to NHSE on the 12th of September 2018 and that they were never returned to his firm. In his second witness statement dated 7.11.2021 he gave evidence that he had prepared the Appellant’s main response dated 27.6.2018 by looking at the original records for The 11, including the Brown Cards. He sent those with the letter and received a receipt from NHSE. He received the original records back in August 2018 but again had to return them to NHSE on the 12th of September 2018 and the documents were never again returned to his firm. He also dealt with the photocopies of the originals. The Appellant delivered a set of copies to him in June 2019. His evidence was that the Appellant had not changed those copies or delivered any additional copies since that date apart from one Brown Card on the 1st of November 2021. He explained that if any of the later sets of copies of the clinical records of The 11 did not include all of the relevant pages that could have been an oversight by a member of his team. However, he stated that it would have been helpful if NHSE had returned the original records rather than having to rely on photocopies. In his third witness statement Mr Grant stated that the Appellant did not deliver any X-rays to his office, she did deliver laboratory dockets for certain patients and did not deliver any photographs to his office in June 2019. He also repeated that the Appellant had delivered copies of all relevant clinical notes for The 11 in June 2019. Finally in his fourth witness statement Mr Grant answered a question posed by the GDC's barrister at the hearing only 12th of November 2021 to the effect that the copies of the Brown Card records were taken from the bundle of copy documents which his firm held and sent to the GDC and he did not return copies of these to the main bundle. That is why they were not included in the disclosure on the 12th of December 2021 (by which I assume he meant the 12th of November 2021).

Further evidence was served by the GDC in between the first part of the hearing in November 2021 and the second part of the hearing in February 2022. Anna Holdsworth, a solicitor from Capsticks, gave a witness statement explaining that during the November hearing the Appellant mentioned that she had kept a copy of the records originally sent to NHSE at the outset of the case. The PCC made a direction for that set of copies to be provided to the GDC by 12th November 2021. A black lever arch folder was Couriered to Capsticks by Mr Grant on the 12th of November. She checked the copies and found no copies of Brown Cards. She handed the folder to a member of intelligent office docu-centre team to whom Capsticks subcontracted photocopying. By the 6th of December 2021 the subcontractors had shredded it by mistake.

The evidence of Miss Holdsworth was corroborated by a witness statement from Charlotte Stevens-Mulroe updated January 2022 and a witness statement from Miss Djemal dated January 2022.

Doctor Pal wrote an expert report on 17.6.2022. He had been asked to carry out a random check on the records of the practice for the years 2015-2021 in particular to check whether Brown Cards were used and to look at the style of writing on different pages. On 11 May 2022 he was granted access to the practice computer and shown 250 Brown Cards. He was told the rest were being scanned into the computer. He selected 20 sample patients and another 11 paper records. On 24^th May he went to the practice. By then 50% of the Brown Cards had been scanned into the computer. By 16^th June all the Brown Cards were on the computer system. He then selected another 15 patients. In total he examined the records of 68 patients. 53 of 57 patients had Brown Cards. He discovered that the Appellant was the only dentist at the practice using handwritten records. He considered that the computer records were below the standard required being formulaic and lacking in detail. When he looked at the Brown Cards, he found that each Card had only one date on it (not two or more). They were mainly “full-mouth examinations” and oral health reviews. There were no procedures in them. The quality was high however the records for procedures were below the standard expected.

Doctor Pal’s evidence was not put before the PCC at stage 1. It was used at stage 2. The Appellant put in a further witness statement at stage 2 disclosing how the CQC had criticised her for keeping handwritten records and how she had taken the advice and scanned them all into her system using Proscan. They scanned 27,000 Brown Cards.

The GDC’s evidence was served in March and May 2021 and the expert evidence in 11^th June 2021 with further documentation in August 2021. Additional dishonesty charges were added in early October 2021. Mr Scott provided a short addended report dated 1^st November 2021. The hearing took place between 1^st and 12^th November and then 14^th February and 2^nd March 2022. In opening there was discussion by the GDC of the need for handwriting experts and last minute instructions to them. The PCC were provided with the bundles on 4^th November 2021.

The sets of copies were as follows:

Page 2 (again a very poor copy indeed, I could find no better one):

The PCC concluded there were no coexisting circumstances which undermined the GDC’s circumstantial case. The PCC then disregarded the evidence of Mr Grant that he had copy records in his possession from 2019 stating:

The PCC accepted there was a strong inference that the Appellant did not send Brown Cards to the NHSE in June 2017 and therefore the Brown Cards relied on in 2018 were written retrospectively. The PCC concluded:

I raised this at the appeal hearing because this conclusion acquits the Appellant of all Brown Card charges. The parties agreed that this was a typing error by the PCC. Accordingly, the Appellant was found to have committed each of the charged items of wrongful conduct in relation to the Brown Cards for The 11. The PCC then went through each charge finding it proven. No analysis of dishonesty was set out.

Stay and abuse of process