England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2014

Sir Brian Leveson P :

1. On 21 October 2013, a Professional Conduct Committee ("PCC") of the General Dental Council ("GDC") adjudged that Dr Ashraf, a dental practitioner, had made inappropriate and dishonest claims to the NHS and, in addition, had interfered with witnesses who had been approached in the investigation. On the following day, it made consequential findings of misconduct and impairment. In consequence, the PCC determined that his name should be erased from the register. Dr Ashraf now appeals pursuant to the provisions of s. 29 of the Dentists Act 1984.
2. Central to the appeal is the fact that, prior to the PCC hearing, Dr Ashraf had been prosecuted on an indictment containing three counts of fraud and theft in relation to the same NHS claims and had been acquitted by the jury on all counts. That led to an application to stay the disciplinary proceedings as an abuse of process which, on 9 September 2013, the PCC rejected. Further grounds of appeal relate to the adequacy of the evidence upon which the adverse findings were made and the decisions both as to the impairment of his fitness to practise and his erasure.

Legal Framework

3. The appeal proceeds by way of a re-hearing (CPR Part 52, PD 52D, 19.1(2)) so that it will be allowed where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings (CPR 52.11). In that regard, the court has the power (a) to dismiss the appeal, (b) to allow the appeal and quash the decision appealed against, (c) to substitute for the decision appealed against any other decision which could have been made by the PCC or (d) remit the case to the PCC to dispose of the case in accordance with the directions of the court: see s. 29(3) of the 1984 Act.
4. It is unnecessary to revisit the authorities that identify the difference between a review and a rehearing. These are summarised in Bhatt v General Medical Council [2011] EWHC 783 (Admin) at para 9 and adopted, with minor linguistic alteration) in Singh Wasu v General Dental Council [2013] 3782 (Admin). In short, although the court will correct errors of fact or approach:

"(1) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

(2) [it will have regard to the fact] that the tribunal has had the advantage of hearing the evidence from live witnesses;

(3) the court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;

(4) findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

(5) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair."

Background Facts

5. Dr Ashraf qualified as a dentist in 1996. In 2002, he became the owner and principal of a general dental practice known as Great Horton Dental Practice in Bradford. When he acquired the practice, he was working under the then existing General Dental Services contract with a patient base of around 3,000 but, over the ensuing years, he built up the practice to around 7,000 patients. From 1 April 2006, Dr Ashraf entered into a new NHS contract which provided a new basis for calculating remuneration through a mechanism whereby a contracting dentist was expected to provide an agreed amount of dental care, measured in what were known as units of dental activity ("UDA"). In the case of Dr Ashraf's practice, the agreed amount of dental activity amounted to 14,000 UDAs which had a monetary value of some £350,000. To claim payment, within two months of a completed course of treatment, the dentist is required to submit a claim identifying the details of the care or the UDAs carried out.
6. UDAs are claimed according to one of three bands of treatment. Band 1 includes an examination, assessment and planning of treatment and attracts 1 UDA. Band 2 covers everything in band 1 plus any additional treatments such as fillings and simple root canal procedures: this band justifies a claim of 3 UDAs. Lastly, band 3 incorporates treatment covered by bands 1 and 2 plus more complex procedures such as crowns, dentures and appliances involving laboratory work. Band 3 treatment typically involves more than one appointment and attracts 12 UDAs. At the time of the claims in question, fee-paying patients would have to pay an NHS fee of approximately £15.50 for band 1, £42.40 for band 2 and £189.00 for band 3 treatments.
7. The allegations against Dr Ashraf concerned inappropriate and dishonest claims made in respect of UDAs and payments from the NHS over the period 2006 to 2008. The PCC also considered allegations of attempts by Dr Ashraf to frustrate the NHS counter fraud investigation into these claims by failing to supply patient records and, by himself or others, interfering with witnesses.
8. The claims said to be inappropriate and dishonest are grouped under three heads. First, it is alleged that Dr Ashraf submitted claims for treatments that had not in fact been carried out. These involved the provision of bite raising appliances ("BRAs"), a band 3 treatment attracting 12 UDAs, to patients who had never, in fact, received a BRA ("Head 3" of the charge). Secondly, it is alleged that Dr Ashraf claimed for treatments in a higher band than was justified or split a course of treatment into two separate claims which properly should have been covered by one claim ("Head 4"). The third complaint concerns Dr Ashraf's failure to submit PDS 1 forms. These forms enable dentists to declare fees paid by patients directly so that the Dental Practice Board can deduct that amount from the NHS monies paid to the dentist each month. Thus, this allegation is that forms were deliberately held back so that deductions which should have been made to Dr Ashraf's payments were not made ("Head 5").
9. Suspicion was raised about Dr Ashraf's NHS claims in 2007 and his case was passed to the Dental Fraud team in September of that year. The subsequent counter-fraud investigation was led by Mr Jason Croft, who was also a witness both in the criminal trial and disciplinary hearing. On 28 January 2009, Dr Ashraf was arrested at his surgery in relation to the investigation and records were seized. Mr Croft interviewed Dr Ashraf on three occasions at Bradford South Police Station and obtained statements and records from patients. In May 2009, he referred the case to the GDC.

The Criminal Trial

10. How the case proceeded from the GDC to criminal prosecution was not elucidated before us but, between 5 and 21 March 2012, Dr Ashraf stood trial on three charges of fraud and theft arising out of his claims for NHS payment. Counts 1 and 2 were making a false representation contrary to s. 2(1) of the Fraud Act 2006. The particulars were that with intent to make a gain for himself or cause loss to another, Dr Ashraf dishonestly made false representations, namely that treatment had been provided as detailed on the claim form whereas in fact that treatment had not been carried out (count 1), and that treatment was claimed within the correct Band whereas in fact it was not (count 2). Count 3 was a specific allegation of theft of the sum of £1,600 in relation to the retention of PDS 1 forms. As we have explained, Dr Ashraf was acquitted of all charges.

The Disciplinary Hearing

11. Given the speed of the subsequent hearings, there must have been considerable prior notice of the intentions of the GDC and, indeed, of Dr Ashraf's challenge, but it was by letter dated 5 September 2013 that Dr Ashraf was formally notified of the GDC charges against him. A PCC hearing was proposed for 7 October 2013 but a preliminary meeting was convened on 6 September 2013 (that is the day after the formal letter) in order to consider Dr Ashraf's application to stay, in whole or part, the substantive disciplinary proceedings against him on the grounds of abuse of process. The basis of this application was that, in light of the acquittals, it would be abusive for the GDC to proceed against him on charges which in substance mirrored the criminal charges.
12. The panel promulgated its findings on 9 September 2013. It noted that the GDC charges were both wider and narrower than those in the criminal trial; wider because the allegations were that the claims made to the NHS were inappropriate as well as dishonest, and narrower in that they concerned a smaller number of patients. The panel accepted the legal advice publicly enunciated by its legal adviser that the doctrine of double jeopardy had no application to disciplinary proceedings and that to try a matter in disciplinary proceedings where there has previously been an acquittal was not inherently abusive. Furthermore, because different standards of proof apply, there is no logical incompatibility in seeking to prove a disciplinary matter to a civil standard where there has been an acquittal on the criminal standard; the two questions may receive different answers simply because they are addressed to different standards.
13. In reaching its decision the panel made it clear that it had taken into account all the circumstances of the case, including the fact that the allegations dated back many years and the impact on Dr Ashraf of the further passage of one year since the criminal trial (during which he had resumed his practice). It also considered that the allegations of fraud did not involve any direct harm to patients in the way that a clinical error would. However, the panel found that the allegations were nevertheless serious and, if true, reflected on Dr Ashraf's professional standards and integrity. The panel concluded that the public interest in hearing the allegations, which if true would likely affect Dr Ashraf's fitness to practise, outweighed the hardship to Dr Ashraf in facing some of the allegations for a second time. In so concluding, the panel was conscious of the possibility that public confidence in professional regulation could be undermined if Dr Ashraf's case, which involved serious allegations including dishonesty, were not to proceed.
14. The substantive hearing therefore proceeded on 7 October, lasting for 14 days. The PCC heard evidence from Dr Ashraf, a selection of the patients about whose treatments the claims concerned, Mr Croft the counter-fraud investigator, Mr Roger Furniss, a General Dental Practice Advisor, Mr Julian Scott and Mr Nicholas Barker, expert witnesses for both sides and a number of character witnesses for Dr Ashraf.
15. In relation to Head 3, the PCC found that Dr Ashraf knew or ought to have known that claims were made for dental treatment that had not been provided in respect of 4 patients. The PCC found the live evidence of the patients compelling and accepted that they had not received BRAs. It also found that the fact the patient records matched the claim forms which stated that BRAs had been provided did not of itself prove or disprove fabrication.
16. Turning to Head 4, the PCC found that Dr Ashraf knew or ought to have known that claims for UDA were made for dental treatment that either split a course of treatment into two claims or were in the incorrect band for 5 patients. In light of the extensive experience of Dr Ashraf's staff, the straightforward nature of the claiming system and the simplicity of these courses of treatment, the committee found that the over claims were highly unlikely to be accidental errors.
17. Finally, in relation to Head 5, the PCC found that Dr Ashraf had failed to submit 91 completed PDS 1 forms without a legitimate reason. The committee did not accept that Mr Furniss, the General Dental Practice Advisor, had advised Dr Ashraf to retain the forms; rather it concluded that it was done with the intention of preventing a deduction to his payments from the NHS.
18. With regard to witness interference, the PCC found that Dr Ashraf, knowing about the investigation into his claims, discussed with a patient his communication with the NHS counter fraud service and caused or permitted attempts to be made to deter witnesses from giving evidence before the PCC: the findings in respect of these allegations are not challenged in this appeal.
19. As a result of these findings of fact, the PCC found that Dr Ashraf's fitness to practise was impaired by reason of misconduct. In considering the appropriate sanction, the PCC had regard to supportive testimonials made on Dr Ashraf's behalf. It noted that no patient complaints had been made against him and that, prior to this case, Dr Ashraf had an unblemished record before the GDC. It also considered the small number of claims involved set against the number of patients treated overall, the fact that Dr Ashraf ran a practice in an area of some deprivation in Bradford with around 7,000 patients as well as the fact that he was the sole bread winner for his family. However even with regard to all of these factors, the PCC took the view that public confidence in the profession would be seriously undermined if, after engaging in a succession of dishonest actions and seeking to interfere with the GDC investigation by intimidating witnesses, Dr Ashraf were allowed to remain on the register. It therefore determined that the only proportionate sanction was erasure.

Ground 1: Abuse of Process

20. The first ground of appeal advanced by Mr Andrew Hockton on behalf of Dr Ashraf is that the PCC was wrong not to stay the disciplinary case against him as an abuse of process. It is submitted that it would be unfair to pursue misconduct charges against him where he had been acquitted of substantially the same charges. It is not suggested that Dr Ashraf could not have received a fair hearing under the first limb of the doctrine of abuse of process.
21. Mr Hockton appeared to accept the correctness of the advice of the legal advisor to the PCC and that the panel purported to consider factors relevant to the evaluation of whether to proceed would be unfair in this particular case. In short, his submission was that the panel came to the wrong conclusion. He accepted that these concessions left him with a high threshold to mount in demonstrating that the PCC decision was wrong.
22. It was and is common ground that the fact of an acquittal in the criminal courts does not, of itself, make it inherently abusive for the same matter to be heard by a disciplinary panel; we repeat that the concept of double jeopardy does not apply. However, Mr Hockton submits on behalf of Dr Ashraf that it is unfair to routinely subject professionals to both criminal and disciplinary proceedings in relation to the same subject matter. He argues that there is a discretion which falls to be exercised and it was wrongly exercised by the PCC. Drawing upon his experience, he went as far as to submit that professional conduct panels currently operate on the basis that it would never be unfair to pursue disciplinary proceedings where there had been an acquittal. He submits that this must not be right and invites the court to consider the principles which should inform the exercise of discretion.
23. At the heart of this submission is the contention that there may be intrinsic features of different types of case which mean that they should not be re-litigated. He draws support for this position from the dicta of Lord Justice Simon Brown in R (Redgrave) v Commission of Police for the Metropolis [2003] 1 WLR 1136 at para. 46 and the subsequent line of authorities which appear to cite the judge's observations with approval.
24. It is necessary therefore to review these authorities. As a starting point, in Ziderman v General Dental Council [1976] 1 WLR 330, although dealing with a disciplinary process which followed conviction, Lord Diplock made the point that there was no parity between the two sets of proceedings and that different public policies were engaged. He said (at 333B):

"The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession."

25. In R (Redgrave) v Commission of Police for the Metropolis [2003] 1 WLR 1136, the Court of Appeal considered whether it was an abuse of process for a police disciplinary board to proceed with disciplinary proceedings for discreditable conduct against a police officer where a magistrates' court had previously discharged him in relation to substantially the same offence on the ground that there was insufficient evidence to warrant putting him on trial. After a review of the authorities, including Ziderman, Simon Brown LJ put the matter (at para. 37-38) in this way:

"37 These authorities, to my mind, establish that, even assuming there has been an acquittal by a criminal court, the double jeopardy rule has no application save to other courts of competent jurisdiction, and there is therefore no bar to the bringing of disciplinary proceedings in respect of the same charge. And it is surely right that this should be so. Plainly it is so where the standard of proof is different: even the passage from Friedland quoted by Popplewell J in Saeed's case (set out in paragraph 35 above) recognises that. But, in my judgment, it is right also even where the standard of proof is the same, ie, where the disciplinary charge too has to be proved beyond reasonable doubt – as was the case in respect of police disciplinary charges arising out of alleged misconduct prior to 1 April 1999 (as here) and, indeed, as continues to be the case under many disciplinary codes, for example, those governing architects, dentists, doctors, veterinary surgeons, nurses and, with regard to certain charges, solicitors and barristers.

38 There are two main reasons why the double jeopardy rule should not apply to tribunals even where they apply the criminal standard of proof. In the first place, it must be recognised that the character and purpose of the proceedings is entirely different – the central point made by Lord Diplock in the Ziderman case: see paragraph 33 above. Secondly, however, and no less importantly, the material before the tribunal is likely to be different, in part because different rules of evidence are likely to apply and in part because judicial discretions may well be differently exercised – generally, less strictly in the disciplinary context where at least the accused's liberty is not at stake. It may also be that on occasions, as Mr Freeland suggests, witnesses will be readier to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings."

26. This clearly represents the ratio of the judgment. It is, however, the further observations which have exercised subsequent tribunals. Thus, at para. 46, Simon Brown LJ specifically commended to disciplinary boards generally the following paragraphs from the 1999 Home Office Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures (which he set out in this order):

"3.70 In deciding matters of fact the burden of proof lies with the presenting officer, and the tribunal must apply the standard of proof required in civil cases, that is, the balance of probabilities. The straightforward legal definition of the civil standard of proof is that the adjudicator is convinced by the evidence that it is more likely or probable that something occurred than that it did not occur. Relevant case law makes it clear that the degree of proof required increases with the gravity of what is alleged and its potential consequences. It therefore follows that, where an allegation is likely to ruin an officer's reputation, deprive them of their livelihood or seriously damage their career prospects, a tribunal should be satisfied to a high degree of probability that what is alleged has been proved."

"3.31 Where criminal proceedings have taken place for an offence arising out of the matter under investigation and those proceedings have resulted in the acquittal of an officer, that determination will be relevant to a decision on whether to discipline an officer: (a) where the conduct under investigation is in substance the same as the criminal charge so determined, and where the alleged failure is so serious and the likely sanction serious such that it would be reasonable to look for proof to a high degree of probability (see paragraph 3.70), it will normally be unfair to institute disciplinary proceedings; or (b) where the conduct under investigation is not in substance the same as the criminal charge so determined, it may nevertheless be unfair to proceed where a matter essential to the proof of the misconduct was in issue in criminal proceedings and had been resolved in the officer's favour"

27. Since Redgrave, there have been repeated invitations to consider the effect of this commendation, even where on the particular facts it has not been necessary to resolve the issue one way or another. In Phillips v General Medical Council [2004] EWHC 1858 (Admin) Newman J dismissed an application for judicial review of a decision of the Professional Conduct Committee to refer for inquiry by the PCC complaints against the claimant. Newman J confirmed (at para. 37) that "there is no rule of law which prevents a disciplinary tribunal … from investigating conduct which was been the subject matter of a trial and which has resulted in the acquittal at trial of, for example, of a doctor of a criminal offence". He noted that this flows from the decision in Redgrave. However, Mr Hockton relies on the reference by Newman J to the general guidance given at para. 46 of Redgrave, "all of which of course is in point". In para. 38, the judge concluded that:

"It is obvious that it is pre-eminently for the professional body to determine whether the evidence relevant to the discharge of professional standards reaches its required standard of proof in a case where there has been criminal prosecution which has failed, for it to consider whether the allegations of professional misconduct are, for example, capable of being freestanding from any determination in the court, and for the professional standards committee to pay regard to the direction given by Simon Brown LJ in paragraph 46 of the judgment in Redgrave."

28. In Sacha v General Medical Council [2009] EWHC 302 (Admin) a GP appealed a determination by the GMC of impairment and an order of erasure. This followed the doctor's acquittal of the charge of indecent assault of a patient. Lloyd Jones J confirmed (at para 43):

"To my mind there is no general principle that it would be unfair to bring disciplinary proceedings in respect of a matter which forms part of the same course of conduct which has given rise to a criminal charge on which the individual concerned has been acquitted, if the matter could have been the subject of a criminal charge in those proceedings."

29. The facts were that the GMC had decided not to pursue the indecent assault charge against the GP; the charges in relation to an internal examination were limited to the GP's failures to explain the purpose of the examination, obtain the patient's consent, offer a chaperone and record the examination. Having observed (at para. 17) that the commendation of Simon Brown LJ in Redgrave at para. 46 provided "most welcome guidance as to what may be considered an abuse of process in the circumstances of the present case", Lloyd Jones J went on to observe (at para 40) that:

"the General Medical Council was clearly correct in concluding that the allegation of indecent assault by way of internal investigation could not properly be the subject of disciplinary charges following the doctor's acquittal on precisely this allegation."

30. It is not surprising that Mr Hockton places substantial reliance on this observation (although not relevant to the dismissal of the doctor's appeal in relation to the charge that he did face). With great respect to Lloyd Jones J, in this ex tempore decision, he has failed to reflect the true reason for the decision by the GMC which he had previously set out at para. 13, namely that the evidential basis for the allegation of indecent assault had disappeared because the expert evidence available to the GMC from an independent expert supported the suggestion that an internal examination may have been clinically indicated (para. 13 of Sacha).
31. Therefore although the observations in Sacha may well be a high water mark, providing an example of where it could have been unfair to pursue certain charges in the particular circumstances (albeit this was not in issue in Sacha because the GMC had already made the determination not to proceed on this charge), it cannot be said to support a general principle. This assessment of the authorities was supported in Bhatt v General Medical Council [2011] EWHC 783. After considering para. 40 of Sacha, Langstaff J went on (at para. 42):

"It is not clear to me that he intended these words as recognising a general principle that acquittal of one charge made it unfair of a professional body to prosecute the same allegations in a disciplinary hearing. If he had done so, it would have been contrary to that which he had set out earlier in his judgment, where he had eschewed any such principle and regarded abuse as dependent on the particular circumstances of a case (see paragraph 17 of his judgment). I take it, therefore, that these words are limited to a fact-specific analysis of the case before him."

32. Langstaff J considered (at para. 56) that "it is unnecessary in drawing these conclusions to express any decided view as to the current status of what was said at paragraph 46 of Redgrave". However he went on to express that it "was obiter, was guidance, and certainly was not binding" and that he "[saw] the force of the Panel's view that it no longer represents the law".
33. It is essential that regulators are confident in exercising their discretion in these matters and the continued anxious citation of this line of authority ought to be discouraged. In my judgment, the approach in paras. 37 and 38 of Redgrave, confirmed in Phillips, Sacha and Bhatt, is clearly correct. Simon Brown LJ (at para. 46 of Redgrave) was not enunciating the law but merely commending the approach set out in guidance which, in any event, has since been altered. The latest Home Office Guidance in this area (to such extent as it is relevant) is a revision dated November 2012. It is concerned with misconduct action following criminal proceedings at paras. 2.35 to 2.40 and, rather than suggest it would usually be unfair to proceed following an acquittal, states at para. 2.36 that an acquittal is simply "a relevant factor which should be taken into account in deciding whether to continue with those proceedings". In addition, professional conduct panels do not require the criminal standard of proof but apply the civil standard. These two factors are crucial in demonstrating that para. 46 cannot be considered authority, if it ever was, for the proposition that it would necessarily be an abuse of process to bring disciplinary proceedings against a person on substantially the same subject matter as had been the subject of failed criminal proceedings.
34. In that regard, it is important to bear in mind that the purpose of criminal proceedings is the imposition of a sanction for breach of the criminal law; regulators have no choice whether or not a prosecution is mounted (usually by the CPS) following a complaint of crime even if the complainant is the NHS. The focus of regulators is to maintain the standards and integrity of the profession to ensure that public confidence is and can be maintained and it would not be in the public interest for a form of regulatory arbitrage to take place if there was an 'either/or' approach to whether proceedings should be pursued through the criminal courts or by the regulator. Miss Lydia Barnfather, for the GDC, explained that it is the allegations which follow flawed criminal investigations and prosecutions which tend to be pursued. The test must not be whether a second bite of the cherry might secure a 'better' outcome but, rather, what is in the public interest, viewing the case through the lens of the obligations placed on the regulator.
35. It is therefore important to confirm that although it is not inherently unfair to bring misconduct charges against a professional who has already been acquitted in the criminal courts, this does not mean that there will not be circumstances in which it may well be unfair to proceed. Allegations of crime (which if leading to a conviction would justify erasure) may, in some circumstances, not justify further investigation by a regulator. Without seeking to be determinative, it might be that no further investigation by the regulator is justified because the allegations do not, in any way, touch upon professional responsibilities either to patients or (as here) to the NHS (which is required to invest trust in the integrity of the professional to fulfil the terms of the funding contract honestly). This elaboration, however, is not intended to be definitive guidance: regulators must each determine how they go about achieving their regulatory objectives and, bearing those objectives in mind, faithfully apply the well known principles engaged within the concept of abuse of process.
36. Turning to the facts of this case, in my judgment, the PCC paid entirely appropriate regard to the applicable legal principles and weighed all the relevant factors in coming to its decision that it would not be an abuse of process to proceed in this case. Mr Hockton did not challenge the reasons in themselves and, viewing the allegations through the prism of the importance to the public of the integrity vested in dentists in connection with payment claims (and the critical importance that those whose conduct is under scrutiny do not seek to impede the investigation), the decision is entirely justified. There was no error of law and this ground of appeal fails.

Ground 2: Findings of Fact

37. The second ground of appeal challenges the findings of fact made by the PCC. Mr Hockton opened his submissions by conceding the difficulty that he faced and accepted that this court is not in the best position to assess the credibility of live witness evidence. Nevertheless, he invited the court to consider in relation to Head 3 the extent to which the PCC unreasonably disregarded contemporaneous clinical records and claim forms.
38. It was common ground between the two experts, Mr Scott and Mr Barker, that the BRA treatment was clinically indicated; in other words the records appeared to confirm the treatment was carried out. Mr Hockton submits that the records were seized from Dr Ashraf in January 2009 without notice or advance warning of the identity of patients to be investigated and therefore there was no opportunity for Dr Ashraf to tamper with the forms. It is further submitted that Patients 1 to 4 had limited recollection of their treatment and are therefore unreliable.
39. In response to an enquiry as to the length of time patients would usually be asked to use the BRA, Mr Hockton replied 3 months; Miss Barnfather said that it could be used for over a year, sometimes for up to four years. Either way, the process involved in taking impressions and fitting the appliance no doubt renders it a memorable treatment for patients. Furthermore, Miss Barnfather points out that the contemporaneous records would have had to be falsified if the fraud was to be executed. When dental practices are subject to random spot inspections, they would have to ensure that the records match the claims submitted. For my part, I entirely recognise that all the contemporaneous clinical records show is that treatment was recorded, not that treatment was in fact given.
40. With regard to Head 4, Mr Hockton submits that it was unreasonable of the panel to find that staff were highly unlikely to have made mistakes, particularly when one considers the total number of claims for UDAs made each year. He referred to the expert evidence of Mr Barker who considered that mistakes can be made when it comes to submitting claims. Miss Barnfather submitted that these findings were open to the PCC having considered the experience of the staff and the simplicity of the claiming system.
41. Finally in relation to Head 5 and the failure to submit 91 PDS1 forms, Mr Hockton refers us to the evidence of Mr Furniss, who was also a witness in the criminal proceedings. Dr Ashraf claims that he was advised by Mr Furniss in April 2006 to retain the forms. In the Crown Court, Mr Furniss denied any discussion with Dr Ashraf on the issue of whether the forms needed to be submitted. Before the PCC, he accepted that he did have a discussion with Dr Ashraf, but that it was in 2007, not 2006 as alleged by Dr Ashraf. Mr Hockton invites us to find that the material difference renders his evidence before the PCC unreliable.
42. In relation to Heads 4 and 5, the court is being asked to make an assessment of the credibility of witnesses whom we have neither seen nor heard: as Lord Hoffmann said in Biogen Inc v. Medusa plc [1997] RPC 1, at para. 45, for reasons which he there explains, an appellate court should be very cautious in differing from a judge's evaluation of witnesses. On any showing, following the approach described above in Bhatt, they are not shown with reasonable certainty to be wrong. On the contrary, the conclusions expressed by the panel as to the witnesses are cogent and well within the appropriate limits of a proper assessment of the evidence.
43. Taking these principles into account, the test we must apply is whether the decision of the PCC was wrong (Meadow v General Medical Council [2006] EWCA Civ 1390, per Auld LJ at para. 125). This is not a case where there was no evidence upon which the PCC could base its findings. As I have concluded, the PCC weighed up the evidence of witnesses examined and cross-examined before the panel and, absent perversity, it is not open to the court to go behind their conclusions. Far from being perverse, in my judgment, the findings were both justifiable on the evidence and entirely reasonable.

Impairment and Sanction

44. Moving on to the extent to which fitness to practise was impaired and sanction, the PCC made it clear that it was fully aware of the very real benefit that Dr Ashraf had brought to the residents of Bradford and, furthermore, to the fact that he had continued to engage in dentistry without complaint in the period following his acquittal. On the other hand, it is simply not possible to argue that fitness to practise is not impaired when the trust and confidence that the NHS funding body (and, thus, the public) must be able to maintain in those who are contracted to provide services is lost and that the loss of that trust and confidence is an inevitable consequence of the adverse findings.
45. As for sanction, again, the PCC expressly had regard to modest sums involved, to Dr Ashraf's prior good character and to the personal impact on him and his family. Its conclusion, however, that to permit him to remain on the register having knowingly made false claims upon NHS funds and, furthermore, sought to interfere with the GDC investigation, would undermine confidence in the profession is unassailable. Whether it might be appropriate to take a different view after an appropriate period of time is not a matter for the court. There is, however, no basis for challenging the decision or upon which to overturn it.

Conclusion

46. The decisions of the PCC were neither procedurally unjust nor wrong within the meaning of CPR 52.11 either in relation to the fairness of pursuing disciplinary proceedings against Dr Ashraf or in relation to the findings of fact as to the heads of charge or the issues of impairment and sanction. Although a personal tragedy for Dr Ashraf, based on the justifiable findings of the PCC, he has only himself to blame. In the circumstances, I would dismiss this appeal.

Mr Justice Cranston :

47. I agree.