England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2015

The Hon Mr Justice Turner:

INTRODUCTION

1. The appellant in this case, Mr Pope, is a dentist. From 2006, he practised from a dental surgery on Monkmoor Road in Shrewsbury. He provided services under a contract with the Primary Care Trust ("PCT") and was entitled to be paid in accordance with the terms and conditions of that contract.
2. Mr Pope came to the attention of the General Dental Council ("GDC") when two patients raised formal complaints about the treatment they had received at his hands. In consequence, he was asked to provide records relating to nine other patients for review. For ease of reference and reasons of confidentiality, the eleven patients who were the subject matter of the investigation were thereafter referred to, sequentially, as "A" to "K".
3. By letter dated 22 January 2014, solicitors acting on behalf of the GDC gave notice to Mr Pope that a hearing of the Professional Conduct Committee ("PCC") was to be held to adjudicate on a broad range of allegations of misconduct. These included charges directed not only towards Mr Pope's clinical performance but also towards his probity. In particular, it was contended that he had repeatedly made dishonest claims for remuneration to which he well knew he was not entitled under his contract with the PCT.
4. In then event, the PCC found that twenty of a total of thirty one allegations of dishonesty had been made out. The sanction they imposed was erasure from the register. Mr Pope now appeals to this court against the findings of dishonesty but for which, it is said, the appropriate sanction would have fallen short of erasure.

THE LEGAL FRAMEWORK

5. The Appeal proceeds by way of re-hearing pursuant to CPR PD 52D 19.1(1) (c) and (2). CPR 52.11 (3) provides that the Appeal Court will allow an appeal where the decision of the lower court was–

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

6. In Bhatt v General Medical Council [2011] EWHC 783 (Admin) Langstaff J. distilled the following guidance from the existing case law:

"…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 judgment 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."

THE BURDEN AND STANDARD OF PROOF

7. Rule 57(4) of the General Dental Council Fitness to Practise Rules 2006 provides:

"It shall be for the Council to prove any fact alleged in the notification of hearing, on the balance of probabilities"

8. The GDC's "Guidance for the Professional Conduct Committee" provides:

"19. The standard of proof relates to the level of certainty which the PCC must reach before it decides that factual allegations have been proved. The GDC has determined that the standard to be applied, in all fitness to practise cases, is the civil standard. This means that the PCC must find that it is more likely than not that the allegations are true.

20. The adoption of the civil standard is appropriate in a system concerned with fitness to practise issues that is aimed at protecting the public."

9. The central issue in this appeal is whether or not the PCC properly applied the presumption of innocence in reaching their conclusions of fact.
10. The appellant puts the point in the following way in his skeleton argument:

"13.The PCC appear to have properly understood that they had to be satisfied that an allegation is more likely than not in order to find it proved, but their varied and inconsistent explanations for how they reached that position suggest that the burden of proof has not been ascribed its proper weight. Since the PCC sometimes expressed the direction of the burden of proof correctly and were given proper advice on this basic principle by the Legal Adviser, it does not appear that they simply erred by reversing the direction of the burden.

14. Rather, the only way in which their various descriptions of how they reached their conclusions can be reconciled is if they started from a neutral position when considering the evidence; that is, they started without any assumption about whether the allegations were correct or not, with the evidential scales evenly balanced. The effect of this error is profound. It substantially lightens the burden of proof, effectively rendering it weightless."

11. I must confess that I struggled to understand this point when I first read these passages and further admit that, despite the commendably patient attempts of their author orally to articulate what they were intended to convey, I later found myself to be none the wiser.
12. In the light of this, I have concluded that it is necessary to go back to basic principles to see if there are foundations capable of supporting the edifice which counsel has sought to build. Much of this is, necessarily, trite law.
13. There are in English law two categories of burden of proof: the persuasive (or legal) and the evidential. We are concerned here only with the persuasive burden and so nothing more need be said about the evidential burden.
14. In a civil case, the burden of proof is fixed at the beginning of the trial by the state of the pleadings and remains there never shifting. Similarly, in criminal cases, the burden of proof lies on the same party (in practice usually, but not always, the prosecution) throughout. In this case, the burden of proof on the issue of dishonesty in respect of each relevant charge undoubtedly rested upon the shoulders of the GDC throughout the proceedings.
15. The general practical impact of this is that at no stage of the proceedings is the fact finder entitled to say that the evidence on any given issue has accreted to the extent that the persuasive burden of proof has, as a result, been effectively shifted from one party onto the other party.
16. This point was authoritatively and emphatically made by Viscount Sankey L.C. in Woolmington [1935] AC 462 at page 481:

"If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence."

17. The PCC in this case could not, therefore, legitimately have said at any intermediate stage in the proceedings that, in the light of the evidence against Mr Pope (however compelling) with respect to any issue, that the burden of proof on that issue had thereby shifted onto him. The benefit of the burden of proof is preserved intact and the consequences of its application fall to be adjudicated upon at the end of the case when all the evidence is in.
18. The importance of applying the burden of proof on any issue by taking into account all of the evidence at the end of the case was also stressed by Viscount Sankey in Woolmington at page 483 deploying a metaphor the vividness of which has been long since been rewarded with the status of cliché:

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

And, with respect specifically to the facts of that case in which the charge was one of murder:

"If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted."

19. The time at which the burden of proof must be applied is, therefore, at the end of the case without either attenuation or reversal as a result of the ebb and tide of evidential fortunes in the hearing which had preceded it.
20. The appellant expressly concedes that it does not appear that the PCC "erred by reversing the direction of the burden." I take this to mean that it is accepted that the members of the PCC asked themselves, having heard and considered the whole of the evidence, whether, upon such evidence, the GDC had discharged the burden of proof on any given issue.
21. The criticism levelled against the PCC is that they "started from a neutral position" and "with the evidential scales evenly balanced". This, it is alleged, "substantially lightens the burden of proof, effectively rendering it weightless."
22. It is at this stage of the argument that I part company with Mr Pope's analysis.
23. The scales metaphor is, however, apt and, at the risk of over-simplification, can be applied to illustrate the application of the burden of proof in cases in which, as here, the standard of proof involves deciding an issue between two parties on the balance of probabilities.
24. The evidence in favour of one party is put in one pan of the scales and that of the other in the other pan. As the case progresses, one pan may rise as the other falls and vice versa. When the evidence has concluded, the scales will have tipped in one direction or another or will have ended up evenly balanced. The fact that one party bears the burden of proof means that he will lose not only if the pan has fallen in favour of the other party but also if the scales end up evenly balanced.
25. The application of the burden of proof does not, however, involve putting some unspecified weight into the pan of the party who does not bear the burden of proof before any evidence is called. The burden of proof and the standard of proof comprise the criteria which are to be applied to all of the evidence after it is complete in order to determine how any given issue is to be resolved. As such, the burden of proof has no "weight" either in the scale analogy or, literally, in the context of a contested issue as a piece of evidence in itself. To say that the burden remains on one party throughout is merely to make the point that, however imbalanced the scales may appear to be at any given stage in the proceedings, the test to be applied remains unchanged throughout.
26. There is another way of analysing the position. If the application of the burden of proof involved weighting the scales in advance then this would automatically vitiate the proper application of the standard of proof. If the burden of proof were to have any "weight" whatsoever the standard of proof could no longer be one of the balance of probabilities but the balance of probabilities plus whatever extra unspecified "weight" had been added to the other pan by the earlier application of the burden of proof.
27. I invited counsel for Mr Pope to reinforce his proposition that the burden of proof has "weight" with reference to supportive authority. He contended, in response, he had found no such authority but that his proposition was so self-evidently correct that it would be unsurprising if there were no reference to it in any case law. I take the view that there is more obvious explanation for this conspicuous lacuna.
28. It must follow that this criticism of the approach of the PCC is conceptually flawed and must therefore fail. Nor can the PCC be said, on any more conventional analysis, to have erred in its approach to the burden of proof to the extent that their findings of dishonesty are thereby vitiated. To expand somewhat upon this finding I will consider the more salient objections which Mr Pope has raised to the way in which the PCC set about its task of determining the issues before them.
29. To meet Mr Pope's detailed criticisms the GDC helpfully provided a 15 page document in "Scott Schedule" format dealing with each of the relevant findings and comments of the PCC which is not quite, but almost, comprehensive. Mr Pope's counsel helped to me to identify any further passages which he wished to highlight but which are not included in the document.
30. I am grateful to counsel for the GDC for assisting the court with this document. However, I consider that the exercise of dealing with each individual comment in this judgment would be disproportionate, particularly in the light of my finding that the jurisprudential foundation of the appellant's attack is misconceived in any event. Accordingly, I propose to deal in the main with categories of criticism where the relevant wording is identical or substantially similar. Where I have not dealt specifically with any given passage or criticism it is because I have concluded that such a minutely fine analysis would not generate results which would be capable of impacting upon my final determination of this appeal. In this context, I note that Mr Pope has realistically conceded that, with respect to the issue relating to the presumption of innocence, no single passage which he criticises would be capable, if standing alone, of sustaining his appeal. He relies upon the cumulative impact of the comments as a whole.
31. On a number of occasions the PCC made findings on the evidence which were favourable to Mr Pope to the extent that they expressed themselves satisfied that it was more likely than not that his version of events was correct. For example, in relation to Patient A they found that it was unlikely that he had treated him, as had been alleged, by grinding down a tooth without explanation. Other examples have been given of the PCC expressing themselves to be satisfied of Mr Pope's innocence on various issues. I reject, however, Mr Pope's contention that such comments were "ostensibly reflecting a reversal of the burden of proof". It was open to the PCC to find that on some issues Mr Pope's evidence was to be preferred. Such findings did not carry with them the implication that they were reversing the burden of proof. Their comments were not explicitly, nor by compelling implication, made in the context of identifying and applying the burden of proof and it would be unfair to assume that they were. This is particularly so in the light of the considerable emphasis put upon the burden and standard of proof in the respondent's opening, the respondent's closing submissions, the appellant's closing submissions and the written legal advice of the legal advisor the contents of which had been approved in advance by the parties.
32. In dealing with other allegations, the PCC expressed themselves not to be satisfied that Mr Pope had performed a sufficient examination. Of course, if it could legitimately be inferred from this choice of language that the PCC had transiently but repeatedly forgotten upon whom the burden of proof lay then such an inference would be capable of forming the basis for legitimate complaint. In my view, no such inference can be drawn. The findings were part of the narrative of this long and detailed decision and plainly not intended to identify where the burden of proof was presumed to lie. Strictly speaking, it would have been apt for the PCC to have said of any given failure that they were "satisfied that it had occurred" rather than "not being satisfied that it had not occurred". Nevertheless, taken in the context of the 33 pages of the detail of the determination as a whole, the examples relied upon by Mr Pope reveal no more than an occasional informality of language rather than solid ground upon which to base sound forensic criticism.
33. One specific charge levelled by Mr Pope against the PCC was that they had demonstrably applied the wrong evidential test with respect to an allegation relating to two extractions in the case of patient A which it was said, by reason of the risk of osteonecrosis, should have been performed in a hospital setting. Having expressed themselves unable to determine whether the extractions in question involved roots only or entire teeth, the PCC went on to find that extraction was inappropriate. I am entirely satisfied that the PCC had not thereby applied the wrong burden of proof but had concluded, simply, that, regardless of whether the extractions were of roots or whole teeth, they were inappropriate.

SHARMA

34. Since Mr Pope's counsel first drafted his skeleton argument he has added something new in the form of additional arguments to take into account the decision of Sharma v GMC [2014] EWCH 1471 in which HHJ Pelling QC sitting as a Judge of the High Court held at para 19:

"It was common ground between the parties that for a finding of dishonesty to be made, the GMC must prove that (a) the act or omission concerned was dishonest by the standards of reasonable and honest people and (b) that the practitioner must have realised that what he or she was doing was dishonest if applying those standards. The onus of proof rests throughout on the GMC and the applicable standard of proof is the civil standard – that is the balance of probabilities. However, as Lord Nicholls observed in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586:

"The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence … Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so."

35. It is to be noted that the court in Sharma did not, however, consider that the legal adviser's omission was fatal to all of the findings of dishonesty in that case and went on to find:

"However, on the facts of this case, in my judgment this might, and I emphasise the word "might", have made a difference in relation only to one of the allegations of dishonesty."

36. The extent to which it may be necessary in any given case for a legal adviser specifically to make explicit reference to the point that the more serious an allegation the less likely it is to be true or that a person with a good reputation in a position of trust would not be likely to risk his good name and livelihood by behaving dishonestly will depend on the facts of the case and how it has been presented. It is to be noted that the written legal advice, of which this recent complaint is now made, was approved in advance by the experienced advocates for both parties. I make no criticism of either of them.
37. Although the written legal advice did not make the Re H point in terms, it did set out clearly the effect of good character on the issue of dishonesty. Furthermore, during the course of the hearing, counsel for the GDC had carefully, expressly and accurately conceded that the appellant's positive good character was to be taken into account both on the issues of propensity and credibility. The advocates were entitled to conclude that the PCC were left in no doubt on the issue. Of course, it would have been open to the legal adviser to reinforce the point further with reference to the inherently greater likelihood that someone of good character will act mistakenly rather than dishonestly but the omission was not fatal to the safety of the findings of the PCC in the circumstances of this case.
38. In particular, the PCC's findings of dishonesty were made in detailed and emphatic terms leaving no room for doubt. In reviewing their findings of misconduct the PCC described the appellant's acts of dishonesty as "blatant". Having given the appellant the benefit of the doubt in respect of eleven allegations of dishonesty, the PCC concluded: "Where dishonesty was found, the Committee came to the clear conclusion that you knowingly and dishonestly made obviously inappropriate claims and that there was no ambiguity, doubt or error on your part." The PCC also enjoyed the advantage of seeing and hearing the appellant give evidence and, as a result of their cumulative expertise, of being familiar with the professional context in which he was working. Furthermore, although this was not a point which appears to have been developed before the PCC, the GDC's case against the defence of innocent mistake was potentially reinforced by the "cross admissibility" of the facts supporting each individual charge of dishonesty which were capable of providing mutual support on the issue of propensity.
39. On this basis, I am satisfied that the decision in Sharma does not assist the appellant nor vitiate the robust conclusions of the PCC.

REGULATIONS

40. A dentist is entitled to claim payment once a course of treatment is complete. At the relevant time, two sets of regulations contained slightly different definitions of 'course of treatment'. Under the Charges Regulations (Regulation 2) it meant:

"(a) an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment, and

(b) the provision of any planned treatment (including any treatment planned at a time other than at the time of the initial examination) to that patient up to the date on which—

(i) each and every component of the planned treatment has been provided to the patient, or

(ii) the patient either voluntarily withdraws from, or is withdrawn by the provider from, treatment,

by one or more providers of relevant primary dental services;"

41. The Contract Regulations at the time (Regulation 2) defined a 'course of treatment' as:

"(a) an examination of a patient, an assessment of his oral health, and the planning of any treatment to be provided to that patient as a result of that examination and assessment; and

(b) the provision of any planned treatment (including any treatment planned at a time other than the time of the initial examination) to that patient, provided by, except where expressly provided otherwise, one or more providers of primary dental services, but it does not include the provision of any orthodontic services or dental public health services;

and defined 'complete' in relation to a course of treatment as meaning that:

(i) where no treatment plan has to be provided in respect of a course of treatment pursuant to paragraph 7(5) of Schedule 3 (treatment plans), all the treatment recommended to, and agreed with, the patient by the contractor at the initial examination and assessment of that patient has been provided to the patient; or

(ii) where a treatment plan has to be provided to the patient pursuant to paragraph 7 of Schedule 3, all the treatment specified on that plan by the contractor (or that plan as revised in accordance with paragraph 7(3) of that Schedule) has been provided to the patient…"

42. Mr Pope seeks to rely upon the differences between these two definitions and criticises the PCC for characterizing them as "clear on this particular issue".
43. The GDC, however, points out that sub paragraphs (a) and (b) of the definitions are identical and thus give rise to no confusion in cases falling within their scope. Indeed, Mr Kramer, an expert called on behalf of Mr Pope, accepted in cross examination that, although interpretation of the regulations was not straightforward in all cases, there were other areas in which they were clear and well understood amongst practitioners.
44. The findings of dishonesty in this case were based on circumstances in which there was no ambiguity about the scope of the applicable regulations. Mr Pope admitted in cross-examination that since about 2007/2008 he had understood the effect of the regulations to be that, with the exception of Band 1 urgent cases, if further treatment were identified and planned at an appointment then the course of treatment was not completed before such further treatment had been carried out. Notwithstanding his clear understanding, Mr Pope repeatedly claimed for remuneration for continuing courses of treatment as if they had comprised two or more separate courses of treatment. This category of allegation was found to have been made out in no fewer than 16 instances. The remaining allegations were even more clear cut. The PCC found that Mr Pope had made two claims without even seeing the patients, one claim for treatment which was not carried out and one claim in respect of too high a band of treatment.
45. There was, indeed, some dispute between the experts as to the parameters of what constituted urgent treatment under the Regulations but the PCC very fairly stated:

"In relation to the findings of dishonesty made against you, the Committee bore in mind that it found you had made 31 inappropriate claims for payment. Of those claims it was found that 20 were knowingly and dishonestly made. In instances where the Committee had accepted there was ambiguity in the regulations governing claiming or where there was a possibility that you had simply made an error in your financial claims, it made no finding of dishonesty against you."

am entirely satisfied on the evidence that this assessment was unimpeachable.

CONCLUSION

46. The PCC in this case heard detailed evidence over a period of 6 days. Three members of the Committee were dentally qualified. Their analysis of the evidence was admirably thorough and survives Mr Pope's hostile exegesis intact. The appeal must, therefore, be dismissed. I further order that Mr Pope pays the GDC's costs of this appeal in the agreed sum of £8,017:20.