Mohsen Mobasseri v General Dental Council

MR JUSTICE BIRT :

1. This is a statutory appeal by Mr Mohsen Mobasseri (“Mr Mobasseri”) under section 29 of the Dentists Act 1984 . On 13 December 2024, after a 12 day hearing, a Professional Conduct Committee of the Dental Professional Hearings Service (“the PCC”) found that Mr Mobasseri’s fitness to practise was impaired by reason of misconduct and determined that his name should be erased from the Dental Register. He appeals against certain of the findings made in respect of some of the charges against him, and against the sanction of erasure.

2. The charges against Mr Mobasseri included a series of matters of alleged misconduct, a number of which were alleged to have involved dishonesty on his part. Before the PCC, Mr Mobasseri admitted a number of the matters of misconduct, and also admitted that some of his misconduct had been dishonest. The PCC found that almost all the charges against him were proved, including almost all the allegations of dishonesty. Mr Mobasseri appeals against some of those matters of misconduct, and against all the findings of dishonesty that he had not admitted before the PCC.

3. The charges against Mr Mobasseri involved a total of 29 of his NHS patients, who were referred to in two groups – one group by the numbers 1-15, and the other by the letters A-O (with the exception of L). The matters found proved by the PCC at stage one (by reference to the numbered charges pursued before the PCC) were, in summary, as follows: i) In relation to Patients 1 to 15: a) Failure adequately to carry out a Basic Periodontal Examination (“BPE”) in 14 of the patients (Patients 1-14). Mr Mobasseri had admitted there was a failure to record BPEs for the relevant appointments, but contended he had nonetheless carried out BPEs. The PCC found he had not done so. (Charge 1(a)). b) Insufficient treatment planning for 4 of the patients (Patients 6, 9, 10 and 12) before providing Invisalign orthodontic treatment. This was denied by Mr Mobasseri but found proved by the PCC. (Charge 1(b)). c) A failure adequately to store radiographs for 2 patients (Patients 1 and 7), which was admitted and found proved. (Charge 2). d) Failure to maintain an adequate system of record keeping in respect of all 15 patients. This was admitted by Mr Mobasseri and found proved by the PCC. (Charge 3) e) Retrospective amendment of the clinical records of all 15 patients, which Mr Mobasseri admitted was, and the PCC found to be, misleading and dishonest. (Charge 4 and Charge 7). ii) In relation to Patients A to O: a) retrospective amendment of the clinical records of each of the patients when they were requested by the NHS authorities. Mr Mobasseri admitted this was, and the PCC found it to be, misleading and dishonest. (Charge 6 and Charge 7). b) the submission of 7 inappropriate claims to the NHS for payment (Patients B, C, D, E, F, I and K). Mr Mobasseri admitted that 6 of these claims were misleading (he denied it in the case of Patient I) but denied that any were dishonest. The PCC found all 7 to be misleading, and all but one (Patient E) to be dishonest. (Charge 5 and Charge 7). (The way that the charges 4-7 were structured was that charges 4 to 6 comprised the allegations of the relevant conduct, and charge 7 contained the allegation that the conduct at charges 4 and/or 5 and/or 6 was (a) misleading and (b) dishonest).

4. The PCC gave its decision on stage two on 13 December 2024. It determined that the facts it had found proved were serious and amounted to misconduct, that Mr Mobasseri’s fitness to practice as a dentist was impaired, and that the appropriate sanction was erasure from the Register.

5. In this appeal, Mr Mobasseri does not seek to challenge: i) The findings under Charge 1(b) insofar as they relate to Patients 6 and 12, ii) Anything relating to Charges 2 or 3, iii) The matters relating to Charge 4 and the associated finding under Charge 7 that this conduct was misleading and dishonest, iv) The findings under Charge 5 (except for Patient I) and the associated finding under Charge 7 that this conduct was misleading (except for Patient I), and v) The matters relating to Charge 6 and the associated finding under Charge 7 that this conduct was misleading and dishonest.

6. The grounds of appeal as presented and developed at the hearing were, as acknowledged by Mr Horne KC (who appeared for Mr Mobasseri) at the outset, in some instances refined somewhat from the written grounds of appeal (to which presentation the Respondent (“the GDC”) took no objection). The challenges to the PCC’s decision made by Mr Mobasseri were summarised at the start of Mr Horne’s skeleton argument as follows: i) The PCC erred: a) in finding that Mr Mobasseri did not undertake BPEs for Patients 1 to 15 (Charge 1(a)); b) in the basis of its finding of insufficient treatment planning for Patients 9 and 10 (Charge 4); c) in finding that the claim for urgent treatment for Patient I was inappropriate (Charge 5) and misleading (Charge 7(a)); and d) In finding that Mr Mobasseri acted dishonestly in submitting or causing to be submitted the inappropriate claims for payment for Patients B, C, D, F, K and I (Charge 7(b)). Mr Mobasseri contended the above findings should be quashed. ii) The sanction of erasure was excessive; a period of suspension should be substituted. Background

7. The factual background was largely uncontroversial. It was set out at paragraphs 10-23 of the PCC’s decision, which Mr Horne confirmed did not contain anything he challenged. The following summary of the background is based upon that and other matters of common ground between the parties.

8. Mr Mobasseri qualified as a dentist in Germany in 2001 and commenced practice in the United Kingdom the following year. In 2006 he purchased the Camden High Street Dental Practice, a dental surgery in Camden, London (the “Camden Practice”) for which he held an NHS General Dental Services contract (“the GDS contract”) and became the practice principal. By 2019, the value of the NHS contract was approximately £650,000 per annum (equating to around 18,111 Units of Dental Activity (“UDAs”)) and the practice staff consisted of three other associates (2 full-time and 1 part-time), 2 part-time dental hygienists, 3 dental nurses, a practice manager and a reception team.

9. Between 2010 and 2012, Mr Mobasseri completed a Diploma and MSc in Restorative and Aesthetic Dentistry with the University of Manchester. Later on (between 2019 and 2020), he completed theoretical training in Clear Aligner Therapy with the City of London Dental School/Safe Orthodontics. Mr Mobasseri was able to provide modern orthodontic treatment using clear, removable aligners to straighten teeth – known as “Invisalign” treatment.

10. As time went by, Mr Mobasseri himself performed an increasing amount of private dentistry and correspondingly less treatment on the NHS. The Camden Practice remained predominantly an NHS practice, with 85% of the work provided under the GDS contract. His associates at the Camden Practice performed many of the UDAs required by the contract.

11. In 2015, Mr Mobasseri began to rent a surgery room in premises at 20 Wimpole Street (“Wimpole Street”), working there a certain amount of the week (initially 2 days, later increasing to 3 days). He also continued to work at the Camden Practice for one and a half days a week, and would also routinely stop there on his way home from Wimpole Street.

12. Soon after Mr Mobasseri purchased the Camden Practice, it started to use Kodak R4 (“R4”) record keeping software. Claims for payment for NHS treatment under the GDS contract were sent electronically via that system to the NHS Business Services Authority (“NHS BSA”).

13. At some stage prior to 2018, Mr Mobasseri had started using Microsoft Word to make most of his clinical notes instead of entering those notes directly onto the R4 system. He explained to the PCC that various factors, including the birth of his daughter, his postgraduate studies (which required travel to Manchester), as well as IT issues at Wimpole Street, had led him to use this alternative method of record keeping. He explained that he dictated his clinical notes to his dental nurse who would type them into Microsoft Word using a laptop. Whether the consultation took place at his room in Wimpole Street or the Camden Practice, the patient’s notes would be transferred onto a USB stick, and Mr Mobasseri would then upload them to the server at the Camden Practice when he was next there. He originally intended that the Word records would be uploaded onto the R4 system rather than just kept on the server, but that approach started to fall by the wayside. By the time of the events relevant to the PCC hearing, the Word document had become embedded as Mr Mobasseri’s primary form of patient record keeping. It was accepted by the GDC before the PCC that the records kept in Word were a contemporaneous record of what had taken place at appointments.

14. In early 2019, R4 was replaced at the Camden Practice by EXACT from Software of Excellence (“SoE”). Specialist Invisalign software was also used to record scans for Mr Mobasseri’s private Invisalign patients, which had become one of his main practice areas.

15. From around the end of March 2020, when the Camden Practice was closed during the first COVID-19 national lockdown, Mr Mobasseri started transferring some of the records contained in the Word documents directly into SoE, so that these would form part of the SoE record itself. He explained in his evidence to the PCC that this was because he was using the large amount of free time which had become available to him as a result of the lockdown to complete various administrative tasks at the Camden Practice and to review his record keeping.

16. When transferring the records, he headed each entry as “Transferred from [date of the appointment]”. The SoE software also recorded a timestamped entry for the date on which the records were transferred. The PCC recorded that there was nothing objectionable about transferring the records in this way, provided that the contemporaneous clinical records either remained unaltered or were marked in a way which showed where alterations had been made. However, Mr Mobasseri did not do that. Rather, he made significant alterations when transferring the records into SoE and did not mark anywhere to indicate that such alterations had been made. The PCC noted that, because each entry was headed “Transferred from [ date …]”, the records gave the impression that what was being transferred was the contemporaneous record, rather than an altered version of it. The PCC also noted that the alterations which Mr Mobasseri made to the records consisted of adding (and in some cases altering and deleting) significant clinical detail which had not been included in the contemporaneous Word documents. This detail related to appointments which had taken place weeks, months or years earlier. The alterations were not minor or purely editorial, such as correcting typographical errors, but instead altered the substance of the clinical record and provided substantially more clinical detail than had originally been recorded.

17. Mr Mobasseri subsequently stated in his evidence to the PCC that he had made the amendments to “enhance” the clinical records because, having reviewed his record keeping, he was shocked and embarrassed by the poor standard of his records. He said that, with the exception of BPE charting, the alterations he made reflected what would have taken place at each appointment. His evidence was that he had been able either to remember the appointments in question or to construct an understanding of what would have taken place based on wider clinical records and his recollection of other more recent appointments for each of the patients in question. With regard to BPE charting, he stated that he would have undertaken the BPE itself but that the scores had not been recorded at the time. He accepted before the PCC that the scores which he retrospectively entered into the clinical records had been “made up” by him based on (what the PCC described as) guesswork from examining the patients’ scans and radiographs. Mr Mobasseri admitted before the PCC that in altering the records in this way his conduct was misleading and dishonest.

18. In 2020 an anonymous informant raised concerns with the NHS which resulted in an investigation by it into Mr Mobasseri’s claims for UDAs. The details of the informant and the concerns raised were not put before the PCC. However, as part of its investigation, the NHS wrote to Mr Mobasseri on 21 September 2020 to request the patient records of 25 patients of the Camden Practice. 15 of those patients were Mr Mobasseri’s – they correspond to Patients A-O. The request explained that these records were required “ As part of our monitoring procedures ” and that the records should include, where applicable: “ Clinical and general notes, A chart of the dentition, Periodontal charting and notes, Soft tissue examination, Medical histories with updates, The FP17DC if applicable, [and] the treatment plan or computerised equivalent ”.

19. Having received this request, Mr Mobasseri transferred the contemporaneous records contained in the Word documents for each of those patients into SoE, in the same way he had done earlier in the year with other patient records. Again, when transferring the records he made significant alterations without indicating anywhere that he had done so. He saved the altered records in SoE between 05:33 and 06:44 on 19 October 2020 and submitted these to the NHS later that day in response to its request. As noted by the PCC, the alterations consisted of adding sufficient clinical detail to the notes to support the corresponding claims for treatment which had been submitted to the NHS for payment and which would conform to the level of record keeping expected by the NHS (as had been indicated in its letter to Mr Mobasseri of 21 September 2020).

20. Mr Mobasseri admitted in the PCC proceedings that, in altering the records in this way, his conduct was misleading and dishonest. His explanation was that he had made the alterations because he was embarrassed and had panicked upon reviewing the poor quality of the requested records. He denied that he had made the alterations for any other purpose and he denied he was aware at the time that the NHS was investigating his claims for treatment.

21. As part of the GDC’s ensuing investigation into his fitness to practise, a number of claims for treatment which he had submitted to the NHS were identified as being inappropriate, in that he either had not been entitled to claim for the corresponding number of UDAs or because dates had been changed so that the course of treatment would fall within a different contract year, which the PCC described as potentially avoiding a clawback for underperformance of the contract. In the PCC proceedings, Mr Mobasseri admitted that most of these claims were inappropriate and misleading, but denied that they were made dishonestly. His position was that they appeared to be the result of an administrative or system error (including for some of the claims when the Practice changed from using R4 to SoE).

22. On 29 October 2020, an interim order of conditions was imposed on Mr Mobasseri’s registration for a period of 15 months. On 7 December 2021, the interim order of conditions was replaced by an interim order of suspension. That interim suspension continued (with extension by the High Court and Interim Order Committee reviews) until 19 September 2023, when it was replaced with an interim order of conditions. Mr Mobasseri remained subject to interim conditions until the substantive hearing before the PCC. The GDS contract

23. A number of points were made in the parties’ submissions concerning how different types of dental treatment were dealt with under the GDS contract and how payments were calculated and made. It is helpful therefore to set out some outline points in relation to the operation of the GDS contract, which were common ground between the parties.

24. The National Health Service (General Dental Services Contracts) Regulations 2005 [SI 2005/3361] established GDS contracts with effect from 1 April 2006 and govern their operation. Provisions around charging are found in the National Health Service (Dental Charges) Regulations 2005 [SI 2005/3477].

25. The parties to the GDS contract over the relevant period were the dental contractor (known as a “provider”) and NHS England. Clinical activity provided by a dentist was measured in UDAs for a complete course of treatment.

26. The provider was obliged to furnish NHS BSA (on behalf of NHS England) with details of the clinical activity performed by the provider’s “performers” (i.e. dentists) within two months of completing a course of treatment, giving details of the treatment provided, the patient’s details, including any NHS Charges payable and paid by that patient, and details of any exemption the patients declared.

27. Courses of treatment were categorised into three main charging Bands: i) Band 1 (1 UDA) – examination, diagnosis and preventative treatments. ii) Band 1 (Urgent) (1.2 UDAs) – treatment limited to what is required to prevent significant deterioration of oral health or address severe pain. iii) Band 2 (3 UDAs) – treatment covered by Band 1 plus additional treatment such as fillings, root canal treatments or extractions, irrespective of their number. iv) Band 3 (12 UDAs) – treatment covered by Band 1 and Band 2 plus the provision of appliances such as crowns or bridges, irrespective of their number.

28. NHS England contracted with the provider for the provision of a set number of UDAs during the contract year (1 April to 31 March) for a total contracted value. Each UDA, therefore, had a fixed financial value.

29. At the outset of a course of treatment, the dentist was to provide the patient with a treatment plan – Form FP17DC. Once the course of treatment was completed, its details were sent to NHS BSA on Form FP17 or (as in this case) via its electronic equivalent through the record-keeping software.

30. On a monthly basis during the contract year, NHS BSA would pay the provider 1/12th of the annual financial value of the contract. Then, at the conclusion of the contract year, i.e. the end of March, the number of UDAs provided was compared with the number that the dental contractor was obliged to provide under their GDS contract: i) If the provider exceeded the contracted number of UDAs, they would not receive extra payment unless there had been special arrangements. ii) If the provider fell short of the contracted number of UDAs by up to 4%, that shortfall was carried forward into the next contractual year as a requirement to fulfil. iii) If, however, the shortfall in provision of UDAs was 4% or more, NHS England would require the provider to repay the overpayment in respect of the shortfall in UDAs – a financial “clawback” – under Regulation 19 of the National Health Service (General Dental Services Contracts) Regulations 2005.

31. Mr Mobasseri held GDS Contract 688045/0001 in the period material to the allegations in this case, namely the 2017-18 and 2018-19 contract years. For those years he was contracted to provide 18,111 UDAs. In the 2018-19 year, the financial value of the contract was £608,167. The PCC Decision

32. The PCC considered the charges against Mr Mobasseri at a hearing held between 25 November and 13 December 2024. The committee comprised a lay chair, and two dental professional members, one a dentist and the other a dental nurse. Witness statements were supplied to the PCC from: Ms McLauchlan, a caseworker at the GDC; one of the dental nurses who had worked with Mr Mobasseri, who was referred to as “Nurse A”; Ms Van Loon, a Senior Clinical Advisor at NHS BSA; and from Mr Mobasseri. Of those, oral evidence was given by Nurse A and Mr Mobasseri. Two experts who had been instructed on behalf of the GDC also gave evidence: Mr Bateman and Mr Scott, for opinions in respect of the matters alleged under charges 1-3 (which were referred to as the clinical charges) and charges 4-7 (which were referred to as the probity charges) respectively.

33. I have set out above a summary of the determinations that were reached by the tribunal. I will refer to some of the reasoning and more detailed findings in the course of dealing with the grounds of appeal below. It is obvious that the PCC found Mr Mobasseri’s conduct to have been very serious. He was found to have been dishonest in retrospectively altering numerous patient records, including to mislead the NHS as part of its monitoring process, and to have been dishonest in submitting inappropriate claims for treatment.

34. At the start of its determination relating to sanction, the PCC helpfully summarised its findings in relation to his conduct in the following way: “25. Between 2019 and 2020 you failed to carry out BPEs and sufficient treatment planning in respect of a number of patients for whom you were providing Invisalign orthodontic treatment.

26. Between 2019 and 2021 you also routinely failed to maintain contemporaneous records in the Practice’s record keeping software. You instead used Microsoft Word to make most of your clinical notes. This was not an adequate standard of record keeping. The notes lacked sufficient clinical detail and were sometimes incomplete. They were also being created and stored separately to the Practice’s record keeping software, and were not easily accessible to other treating clinicians.

27. When a sample of your clinical records was reviewed as part of the GDC’s investigation into your fitness to practise, it came to light that, in two instances, radiographs had been stored in the records of the wrong patient. This too amounted to a failure to maintain an adequate standard of record keeping.

28. Between March and November 2020 you retrospectively altered the clinical records of 29 patients when transferring the notes you had made using Microsoft Word into the Practice’s record keeping software. These alterations were made by you to the records for a total of 125 appointments which had taken place up to two years earlier and consisted of adding (and in some cases altering and deleting) significant clinical detail which was not included in the contemporaneous Word documents. The alterations were not minor or purely editorial, such as correcting typographical errors, but instead altered the substance of the clinical record and provided substantially more clinical detail than had originally been recorded.

29. You made the alterations to create a permanent clinical record which would give the false impression that you had maintained an adequate standard of record keeping and had carried out more detailed examinations and investigations than that which had been contemporaneously recorded. Clinical findings were also retrospectively included which did not appear in the contemporaneous notes. False BPE scores were added by you in respect of numerous appointments to give the impression that you had carried out a BPE to screen for periodontal disease at those appointments, as required under the FGDP Guidelines, when you had not in fact carried out such examinations.

30. The records for 14 of the 29 patients had been retrospectively altered by you on 19 October 2020 in response to a request from the NHS for the disclosure of those records. You knew that those records were deficient and you extensively falsified them in order to mislead the NHS as part of its monitoring processes. You falsely added considerable clinical detail to support the corresponding claims for treatment which had been submitted to it for payment [ I note that in his appeal skeleton Mr Mobasseri said this (in saying “claim s ”) overstated the evidence in this respect, which only (in terms of falsification of records by way of addition of clinical detail to support an inappropriate claim) extended to Patient I. ] and to give the false impression that your recording keeping met an adequate standard.

31. Your conduct in altering the records of these 29 patients was dishonest.

32. Between 2018 and 2019 you dishonestly submitted 6 inappropriate claims for treatment to the NHS. You had deliberately manipulated the dates of treatment and other details either to claim for additional UDAs to which you were not entitled or to make it appear that you had completed more UDAs in the preceding contract year, potentially avoiding a clawback for underperformance of the contract.”

35. In its conclusion on sanction, the PCC recorded that: “69. Having regard to all the circumstances, the Committee determined that no lesser sanction than erasure would be sufficient to meet the aspects of the over-arching objective of promoting and maintaining public confidence in the dental profession and of promoting and maintaining proper professional standards and conduct for members of that profession.” The Court’s approach on this appeal

36. There was no real controversy about the approach to adopt on this appeal. There is an unqualified right of appeal to the High Court under section 29(1) of the Dentists Act 1984 against determinations on the facts, impairment and sanction. Under CPR rule 52.21(3) the 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. ”

37. A number of the challenges made by Mr Mobasseri to the PCC’s determination are challenges to findings of fact, both challenges to findings of primary fact and to inferences drawn from those primary facts. Mr Horne referred to the hurdle Mr Mobasseri had to surmount in this respect as a high one. The principles were helpfully distilled by Morris J in Byrne v General Medical Council [2021] EWHC 2237 (Admin) , a case dealing with an appeal from the General Medical Council, but it was common ground that the same approach applied to appeals under the Dentists Act. At paragraphs 12-15 Morris J explained: “First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. … Secondly, … [t]he starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact … Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below … Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta ; - findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman ; - findings “plainly wrong or so out of tune with the evidence properly read as to be unreasonable”: per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7); - where there is “no evidence to support a … finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry after analysis of McGraddie and Henderson .”

38. Ms Tahta, appearing from the GDC, did not take issue with that approach. She referred to similar principles that were set out by Morris J in Ali v SRA [2021] EWHC 2709 (Admin) at paragraph 94, where in addition the judge said: “Finally, as regards reasons, decisions of specialist tribunals are not expected to be the product of elaborate legal drafting. Their judgments should be read as a whole; and in assessing the reasons given, unless there is a compelling reason to the contrary, it is appropriate to take it that the Tribunal has fully taken into account all the evidence and submissions …”.

39. Mr Horne pointed out that the appeal was a rehearing, rather than a review, though accepted that nothing of real relevance turned on any distinction between the two in this context. In Byrne Morris J noted at paragraph 16 that there was little or no relevant distinction in this context to be drawn between “review” and “rehearing” when considering the degree of deference to be shown to findings of primary fact, although there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. Mr Horne confined himself in this respect to referring me to what was said by Ritchie J in Balachandra v the General Dental Council [2024] EWHC 18 (Admin) at paragraph 8: “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.”

40. In terms of the appeal against sanction, Mr Horne summarised the relevant approach in the following propositions drawn from paragraphs 102-103 of the judgment of the Court of Appeal in Sastry v General Medical Council [2021] EWCA Civ 623 (in an equivalent appeal under section 40 of the Medical Act 1983 ), propositions with which Mr Tahta confirmed the GDC agreed: i) appropriate deference is to be paid to the determinations of the PCC; ii) the court must not abrogate its own duty in deciding whether the sanction imposed was wrong; iii) the court should decide itself whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; and iv) in the latter event, the court should substitute some other penalty or remit the case to the Tribunal for reconsideration. Grounds of appeal

41. I will deal with the grounds of appeal in the way and the order in which they were presented by Mr Horne, which involved some refinement of the written grounds of appeal. Ground 1

42. The central issue under ground 1 was whether Mr Mobasseri had conducted BPEs for each of Patients 1-15. The PCC found (under charge 1(a)) that Mr Mobasseri had failed to adequately carry out a BPE in relation to those patients. Mr Mobasseri had admitted the charge as a failure to record (thus admitting what he had done was not adequate), but contended he had carried out a BPE at each of at the appointments in question.

43. The PCC explained in its decision what a BPE involved, as follows: “A BPE involves using a probe to measure pocket depths to screen for periodontal disease, with a score of between 0-4* to be recorded for each sextant of the mouth containing at least two teeth. …. The Committee accepted Mr Bateman’s opinion that you were under a duty to carry out a BPE at each appointment, as set out in the Clinical Examination & Record-Keeping Good Practice Guidelines from the Faculty of General Dental Practice (UK) (the ‘FGDP Guidelines’). Mr Bateman’s opinion was that carrying out a BPE is vital, as commencing orthodontic treatment in the presence of periodontal disease can lead to the disease being significantly worsened. The FGDP Guidelines state: “ Careful assessment of the periodontal tissues is an essential component of patient management. The Basic Periodontal Examination (BPE) is a simple and rapid screening tool that is used to indicate the level of further examination needed and provide basic guidance on treatment needed. These BPE guidelines are not prescriptive but represent a minimum standard of care for initial periodontal assessment. BPE should be used for screening only and should not be used for diagnosis. ” The Guidelines explain that “ For patients with codes 0, 1 or 2, the BPE should be recorded at every routine examination ” and “ more detailed periodontal charting is required ” for patients with a higher BPE score indicating the presence of periodontal disease. The Committee accepted the opinion of Mr Bateman that, whilst not prescriptive, any departure from the FGDP Guidelines would need to be clearly justified in the clinical records. The Committee also accepted the opinion of Mr Bateman and satisfied itself with reference to the guidelines that recording the scores is an intrinsic part of undertaking a BPE and would be necessary for the purposes of treatment planning.”

44. Mr Bateman also explained in his evidence to the PCC a little more about what the different scores signified. He summarised the position in his oral evidence as follows: “So, generally, as I say zero is indicative of complete health. 1 is indicative of some inflammation in that area of the mouth there. 2 is indicative of plaque retention factors. 3 is indicative of some pocketing, which is a symptom of periodontal disease (inaudible) attachment. And 4 is indicative of a greater degree of periodontal disease.”

45. Ground 1 as formulated focussed on the PCC having said that it could not identify any contemporaneous record of BPEs having been carried out for any of these patients, and contended that there had been evidence that BPE scores were recorded in Mr Mobasseri’s contemporaneous notes. It was not pursued in that way at the hearing before me. Rather, Mr Horne took as his starting point the following “ central facts underpinning Charge 1(a) ”: “(1) Mr Mobasseri did not document [BPEs] in his contemporaneous Word records for Patients 1 to 15. That failure occurred once for each patient at consultations between 14 May 2019 (Patient 15) and 02 March 2020 (Patient 4). (2) Mr Mobasseri admitted those failures. (3) When Mr Mobasseri transferred the Word records to the R4 [ In fact, the SoE system. ] system on various dates in 2020, he included BPE scores for each of those consultations. (4) Mr Mobasseri admitted that he failed to record the BPE scores in the Word document for each patient, but denied that he failed to undertake the examination.”

46. The submissions Mr Horne made on behalf of Mr Mobasseri recognised that the PCC’s findings on this charge weighed various factors in the evidence in reaching its determination that Mr Mobasseri failed to undertake a BPE for each patient as alleged. However, he drew attention to particular passages of the evidence of Nurse A and Mr Mobasseri which he said should have led the PCC to conclude that Mr Mobasseri had in fact conducted BPEs. In particular, he relied upon: i) Nurse A’s evidence in answer to questions from the PCC: “…And can you just tell me, is it your recollection that Mr Mobasseri would routinely take a BPE of all the patients that he saw? A. Yes, he does, yes, he does (inaudible). Q. And is--- A. Yes, he does, he does. Whenever there is check-up, he does BPEs. Q. So - okay, and he did- he did that exam with all of his patients including the Invisalign ones? A. Yes, I think- I think so, if I’m remembering correctly.” ii) Mr Mobasseri’s evidence that he would routinely carry out BPEs and would call out the scores to be recorded.

47. Mr Horne accepted that Nurse A also gave evidence that, when Mr Mobasseri called out the BPE, she would always write it down. However, he noted that Nurse A was the dental nurse for only 3 of the 15 consultations in question, and he noted that some of the Word records for the other group of patients (namely for certain appointments for Patients A and J) did record BPE scores.

48. Mr Horne also noted that the PCC considered whether Mr Mobasseri might have mentally noted the BPE scores, rather than calling them out to be recorded by his dental nurse, but it rejected that possibility because (a) Mr Mobasseri’s own evidence was that he would call them out to be recorded by the dental nurse, and (b) Mr Mobasseri’s evidence was that he would always check the records made by his dental nurse. In relation to the second of those points, Mr Horne challenged the security of a finding that Mr Mobasseri would always check the records by referring to other evidence given by Mr Mobasseri of a more equivocal nature, for example: “Yes, but I didn't instruct [Dental Nurse A] to put it actually in the Software of Excellence in that moment whereas I was hoping that it would happen because I was always reading out -saying the numbers but that was something which I kind of didn't check if it was really in the - written down. That is what I must have missed.” and “That is where my shortcoming has come to place where I was definitely taking the measurements. I was doing my BPE but I kind of - that is my shortcoming where I make - I did not make sure that they would appear under a Word document recorded by the nurse. I took it a bit lightly, I would say, which is a mistake.”

49. As a result, it was submitted that there was evidence from both Nurse A and Mr Mobasseri that he had undertaken BPEs, that the fact that records for other patients included BPE scores suggested that Mr Mobasseri was inconsistent in calling out the scores, and that Mr Mobasseri’s failure to check the Word notes made by his dental nurse meant that “ his own error in mentally noting the score but not calling it out, or the nurse’s error in not documenting the score, went uncorrected. ” Mr Horne contended that, as a result, the PCC’s finding that Mr Mobasseri had failed to carry out a BPE in respect of these patients was wrong.

50. This, as presented at the appeal hearing, is not a challenge on the basis of principle or based on a contention that the wrong approach was adopted by the PCC, nor that something crucial was missed or something irrelevant taken into account. It is a simple challenge to a finding of primary fact, of the sort that Mr Horne recognised presented a high hurdle to an appellant. As the authorities referred to above have emphasised, an appeal court should be slow to interfere with such findings. There seems to me to be no basis at all to interfere with this finding.

51. There was ample evidence before the PCC on which it was able to base its finding of fact that Mr Mobasseri had not carried out BPEs for these patients. I do not attempt to (or need to) set it out in full, but the following matters provide the gist: i) Mr Mobasseri’s own evidence was that he would call out the BPE scores to be recorded. Nurse A’s evidence was that when Mr Mobasseri called out the scores, she would write them down. The PCC found Nurse A to be an experienced dental nurse “ for whom recording BPE scores would have been a routine part of her day-to-day duties ” (which was not a finding expressly challenged). The PCC found that if Mr Mobasseri had undertaken a BPE and called out the scores, it is more likely than not that she would have recorded the scores. ii) Evidence was not called from the other two dental nurses with whom Mr Mobasseri had worked, but the PCC drew the (unsurprising) inference that the other dental nurses at the practice would do the same, also noting that Mr Mobasseri had spoken highly of the nurses during the course of his evidence. The absence of a BPE score from the contemporaneous notes was not limited to those appointments where it was Nurse A taking the notes. iii) The fact that on some other patient records there were BPE scores does not assist. On those occasions Mr Mobasseri carried out BPEs, called out the scores and the nurse wrote them down. The fact that happened on those occasions does not help to explain which bit of the process went wrong (whether the performing of a BPE, the calling out the scores or the writing them down) on other occasions. iv) The idea that Mr Mobasseri might undertake a BPE but not call out the scores, rather just mentally noting them, may have been a possibility considered by the PCC if only to be dismissed, but it is not plausible as an explanation for the lack of noted scores. It was not, in fact, evidence that Mr Mobasseri gave. His account was that he would call out the score (see for example the quotation from his evidence set out above at paragraph 48), and the fault was that it was not recorded by the nurse and then that the notes were not (or not properly) checked by him. Moreover, undertaking a BPE but not seeking to record the scores would make little sense – part of the purpose of the BPE is (as Mr Bateman explained to the PCC) to record the scores, so that any changes in condition can be tracked going forward. v) The PCC also found the following in its decision, which was not challenged at all on appeal: “In reaching its decision, the Committee had regard to the fact that the record keeping template which you [Mr Mobasseri] created in Word did not include a field for BPE scores to be recorded, indicating that it may not have been your intention necessarily to routinely carry out BPEs. The Committee also had regard to the answers you gave during the course of your evidence where you were repeatedly dismissive of the clinical significance and importance of BPEs and where you characterised the FGDP Guidelines as being indicative rather than a requirement in relation to a need to take a BPE at each routine appointment. You stated that any differences in BPE scores were marginal, and that scores 0-2 (and potentially 3) could change over the course of just a few days, depending on the oral health of the patient. You stated that if a BPE were to be carried out weekly on a patient, 52 different scores could be recorded for them over the course of a year. A clear and consistent underlying theme of your evidence was a professional attitude where you did not appear to regard BPEs as being clinically necessary in the way described in the FGDP Guidelines, which makes it even more likely that you would not have routinely carried them out.”

52. Moreover, neither the suggestion i) that Mr Mobasseri would carry out a BPE but (contrary to his own evidence) not call out the scores, nor ii) that the nurses would (sometimes) not write down the scores as they were called out (and then that Mr Mobasseri would not notice, in whatever checking he did, that the scores had not been recorded), was particularly plausible (nor supported by direct evidence).

53. As I noted above, Mr Mobasseri relied upon evidence Nurse A gave in response to questions from the PCC that he take a BPE whenever he did a check-up, and that “ if I am remembering correctly ” that included for Invisalign patients (as I have set out in the fuller extract quoted above). However, that was immediately followed by her evidence in response to the next question that when Mr Mobasseri undertook a BPE, he would call out the scores, and that whenever he did so she would record it: “ whenever he does that I record it. If he doesn’t, I don’t. ” That evidence, coupled with the fact that on the occasions in question the notes did not record it, suggest that her evidence that Mr Mobasseri always did a BPE (if that was the right way of reading it) was overstated or mistaken. Moreover, immediately after that, the GDC’s counsel asked in re-examination for clarification: “Q. …did I understand you correctly because I think I was having difficulty hearing your answer just now, are you saying that with some patients he would do a BPE, can I ask you - I’m going to ask you this question in parts. So can you answer that first? A. Yes, whenever I do the check-up, it wasn’t like with all patients, no. Maybe (inaudible) do it, I don’t know, but whenever he tells me I do the BPEs. Q. So when he does the BPE and says it out loud, you would always write it down? A. Yes.”

54. The result is that Nurse A’s evidence on whether Mr Mobasseri always carried out a BPE was at best unclear, but suggesting he did not always do it. But in any event, her evidence was clear and consistent that when Mr Mobasseri called out BPE scores, she would always write them down. Her evidence as to the regularity with which she thought Mr Mobasseri carried out BPEs was not, therefore, helpful to Mr Mobasseri.

55. As I have noted above, Mr Horne also challenged the PCC’s reliance on Mr Mobasseri’s evidence that he had confirmed he would always check the records made by his dental nurse. He acknowledged that Mr Mobasseri had indeed said in his oral evidence that he would go back and check the notes made by his nurse after an appointment, but suggested that the overall weight of his evidence was that he did not do so properly. However, Mr Mobasseri’s evidence in the passages relied on by Mr Horne in this respect was not definitive, but more along the lines of saying that he had read out BPE numbers, and where they were not written down that must be because he failed to make sure the nurse recorded them and then must have missed the fact that they were missing when checking the notes. It was not compelling evidence, and it does not surprise me that that the PCC did not refer to it expressly. In any event, whether or not he was checking the notes with care, the clear weight of the evidence was that he was not carrying out BPEs on those occasions when the scores were not recorded (for the reasons I have set out above).

56. In short, the PCC’s finding that Mr Mobasseri did not, on the occasions in question, carry out a BPE was entirely supported by the evidence. Ground 1 of this appeal does not get near to surmounting the hurdle required on a challenge to such findings of fact. It certainly cannot be said that the finding was plainly wrong, or out of tune with the evidence so as to be unreasonable, or that there was no evidence to support the finding. Nor are any of the other descriptions of circumstances in which an appeal court might interfere with a finding of primary fact apt here. Ground 1 of the appeal must fail. Ground 2

57. Ground 2 relates closely to ground 1. It relates to a point the PCC made in considering the extent of Mr Mobasseri’s dishonesty under charge 7(b). Charge 7(b) included the allegation that Mr Mobasseri’s conduct at charge 4 (amending the clinical records retrospectively of Patients 1-15) had been dishonest. Mr Mobasseri admitted that. However, the PCC found that Mr Mobasseri’s dishonesty in relation to the retrospective amendment of those clinical records went further than he had admitted: He also acknowledged on this appeal that “ the alteration he made to the records on various dates between March and November 2003 consisted of adding and (in some cases) altering and deleting significant detail , were not minor or editorial, but provided substantially more clinical detail than had originally been recorded. ” “In respect of the addition of BPE scores, you accepted that these were “made up” but maintained that you would have carried out the BPE at the appointment and that the retrospective scores (usually recorded by you as 222/222) were a rough estimate of what you think the scores were likely to have been based on other clinical data available to you. The Committee rejected your evidence and determined that the BPEs had not in fact been carried out. The Committee therefore found that your dishonesty in respect of the BPEs was not confined to simply retrospectively “making up” scores: you added those scores to give the impression that you had in fact carried out the BPE when you knew that this was not likely to be the case.”

58. In other words, the PCC found that the false recording of BPEs had been dishonest not only to the extent acknowledged by Mr Mobasseri (in the sense they had been “made up” ex post facto but presented as contemporaneous to hide inadequate record-keeping) but also dishonest in seeking to present the impression he had carried out BPEs when he knew it was likely he had not done so. In this appeal, Mr Mobasseri contended the PCC was wrong so to have found, stating that the PCC had failed to take proper account of Nurse A’s evidence about his general practice of undertaking BPEs, such that the proper inference to draw as to Mr Mobasseri’s state of mind when inserting ex post facto the made up BPE scores was not that he knew he had failed to undertake a BPE on those occasions, but that he thought he probably had undertaken a BPE (but that the scores had not, for some reason, been recorded). Mr Mobasseri also contended that this finding by the PCC was one of the “building blocks” used to find that the case against him on dishonesty was made out in respect of the Charge 5 conduct (dishonesty in relation to which he challenges on this appeal).

59. I can deal with the last of those points (that this finding was used as a “building block” to other findings on dishonesty) shortly. There is no suggestion in the PCC’s decision that this was the way in which it reasoned or reached its decision on dishonesty as to the Charge 5 matters. At the outset of its decision on Charge 7(b), the PCC recorded that it had accepted the advice of its Legal Advisor, that “ the dishonesty alleged in respect of charge 5 must be considered entirely separately on its own ” and separately from the dishonesty (which was admitted) in respect of charges 4 and 6. It went on to consider Mr Mobasseri’s dishonesty in respect of the conduct under Charges 4 and 6, recognising his admission of dishonesty in relation to that conduct, and also carrying out its own analysis, so as to find the charge of dishonesty proved in respect of charges 4 and 6. The PCC then went on to consider the dishonesty alleged in respect of the charge 5 conduct, and did so separately in relation to each patient or sub-group of patients (as I also consider them below). There is no reference in the part of the PCC’s decision dealing with dishonesty is respect of the charge 5 conduct to its earlier findings in relation to dishonesty in respect of Mr Mobasseri’s making up the BPE scores or to dishonesty in respect of the charge 4 conduct more generally. The finding challenged under ground 2 was not, either expressly or implicitly, a ”building block” to the PCC’s findings as to dishonesty in relation to the Charge 5 conduct.

60. As to the challenge to the PCC’s finding that Mr Mobasseri’s dishonesty in respect of the made up BPE scores went further than he had admitted, the basis for it was thin. It largely rested on the contention that, based upon Nurse A’s evidence, Mr Mobasseri’s general practice had been to undertake BPEs. However, as is evident from the matters I have identified above, in relation to Ground 1, the evidence of such a “general practice” was not consistent, and the PCC was entitled to reach a different view. Indeed, in light of the matters set out by the PCC that I have quoted at paragraph 51(v) above (which themselves were not challenged on appeal), it is more likely that Mr Mobasseri did not have such a general practice, having scant regard for the importance of BPEs.

61. It is a fair comment that the word “therefore” in the section of the PCC’s reasoning that is challenged under Ground (see the quotation set out at paragraph 57 above) covers some rather compressed reasoning, but the paragraph in question has to be read with the findings made by the PCC under Ground 1, dealing with the BPE allegations. Moreover, as was noted by Morris J in Ali v SRA (above), “ decisions of specialist tribunals are not expected to be the product of elaborate legal drafting ” and their “ judgments should be read as a whole ”. When read in context, and along with the PCC’s earlier findings, it is clear that it found that Mr Mobasseri had not only not carried out the BPEs on the occasions in question, but also that when ex post facto adding in the made up scores to the clinical records, he knew it was likely he had not carried out the BPEs on these occasions. The PCC was entitled to find (as it did at the end of the passage quoted at paragraph 51(v) above) that Mr Mobasseri did not routinely carry out BPEs, and therefore must have had in mind (when later revisiting his notes, including to add in the made up scores) that he knew he had not routinely carried out BPEs, and thus it was likely that when he saw no BPE recorded in the original notes he would have realised it was likely that, on those occasions, he had not carried out a BPE.

62. The appeal under ground 2 therefore must fail. Ground 4

63. Ground 4 challenges part of the findings made by the PCC in respect of Charge 1(b), under which the PCC found proved the allegation of failure to carry out sufficient treatment planning in relation to Patients 6, 9, 10 and 12 before embarking on a course of Invisalign treatment. The findings in respect of Patients 6 and 12 were not challenged by Mr Mobasseri on appeal.

64. In respect of Patients 9 and 10, the PCC found that there was periodontal disease present when the patients initially attended appointments with Mr Mobasseri on 28 November 2019 and 24 February 2020 respectively, but that there was nothing in the contemporaneous clinical records to suggest he had recognised the presence of periodontal disease at the time, “ far less that you had carried out adequate treatment planning to stabilise this prior to commencing the elective aesthetic orthodontic treatment for each patient ” which would have been required. This required treatment would, found the PCC based on Mr Bateman’s opinion, have “ required as a minimum, pocket charting and a 3-month interval prior to commencing the orthodontic treatment ”.

65. The PCC also recorded in relation to these patients that: “You stated in oral evidence that you were aware that Patients 9 and 10 were under the clinical care of other practitioners. You stated that you considered that monitoring or stabilising the periodontal disease would have been the clinical responsibility of those other practitioners and that your clinical role was confined to providing the orthodontic treatment. However, there was nothing in the clinical records (or even your detailed witness statement to the Committee) to indicate whether you were aware of any treatment carried out by those other practitioners or that you had attempted to identify when they had last seen their patient and whether the periodontal disease was being treated or monitored.”

66. The PCC therefore determined that Mr Mobasseri had failed to carry out sufficient treatment planning in respect of the periodontal disease present in Patients 9 and 10.

67. The challenge under Ground 4 of the PCC’s findings is to the first stage of the analysis – that there was evidence of periodontal disease when Patients 9 and 10 initially attended appointments with Mr Mobasseri. The findings (if there was such evidence at the initial appointments) of what should have been done about it and that Mr Mobasseri’s conduct was inadequate, were not challenged. This is, therefore, on its face a challenge to a clinical finding by the PCC which Mr Horne acknowledged in his oral submissions is generally a difficult type of finding to overturn on appeal.

68. The basis for the challenge was that the evidence relied upon by the PCC for the presence of periodontal disease comprised (i) radiographic images and (ii) Mr Mobasseri’s BPE scores for these patients of 232/232 (Patient 9) and 222/323 (Patient 10). The presence of the “3” scores being significant – as Mr Bateman explained (as set out above) a “3” score would be given where there is some “pocketing”, which is a symptom of periodontal disease. On appeal Mr Mobasseri contended: i) The pre-treatment radiographic image for Patient 10 did not show any bone loss, and Mr Bateman had not suggested that it did. On this appeal, the GDC accepted that, and also accepted that in stating that radiographic images for Patient 10 had showed bone loss, the PCC had erred. ii) Whilst there was bone loss shown on the pre-treatment radiograph for Patient 9, Mr Bateman had said in his report that “ periodontal health cannot be ascertained by looking at a radiograph alone ” and in cross-examination had accepted that the bone loss shown on the radiograph for Patient 9 was “ really quite minimal ”. iii) If (contrary to his primary case before the PCC) he had not carried out BPEs for these patients (as the PCC held), then the PCC could not rely on his ex post facto made up BPE scores to show the presence of pre-existing periodontal disease.

69. In order to put these challenges, and the PCC’s findings in relation to Patients 9 and 10, into context, it is useful to set out a little more detail about how Mr Mobasseri came up with his ex post facto BPE scores for them. Whilst they were made up, in the sense of created after the event, they were not plucked out of thin air. They were arrived at by Mr Mobasseri based upon such information as he had available to him when inserting the scores. For Patients 9 and 10 that included not only the radiographs taken at the time, and the contemporary written records (such as they were), but also the iTero scans that had been take (as well as any memory Mr Mobasseri might have had of the patients and their condition). The iTero scan was an advanced scan that created a detailed 3D image of the patient’s teeth and gums, and was generally taken for Invisalign patients to assist in planning treatment.

70. In relation to Patient 9, Mr Mobasseri gave evidence saying that in coming up with his BPE score, he had reviewed the radiograph and noted the bone loss (which he described in his evidence as mild bone recession) and that he had noted (which, it appeared, was likely from the 3D scan) that the patient had inflamed gums. He thus justified his ex post facto BPE score (which included 3s). In fact, in his oral evidence in relation to Patient 9 he said “ what I am trying to explain is that I have noticed the problem. I have totally acknowledged it. I put it in my notes. ” However, he explained that he remembered the patient, that she had been referred to him by a friend of his with a practice in Golders Green, and that he knew that her dental hygiene would be looked after at his friend’s practice. In other words, his account was that he had identified the evidence of periodontal disease, but regarded the fact that the patient would be looked after in that respect by his friend, the referring dentist, or his friend’s hygienist, as sufficient.

71. In relation to Patient 10, Mr Mobasseri explained in his oral evidence in chief that, in coming up with his score, he must have looked at the radiograph “ and I probably must have seen a slight bone recession, bone drop around the back molar ”. In cross-examination, he explained that he had recorded 222/323 because he could see inflammation on the iTero scan that had been taken, and that the radiograph showed mild recession around the gums.

72. In other words, in relation to both patients, Mr Mobasseri’s own evidence was to the effect that his scores of 3 were accurate, and based upon the contemporary radiographs and scans (as well as his recollection). Thus, in his oral evidence, Mr Mobasseri explained that each needed to be seen by a hygienist, and that he had noted in his “ second record in the SoE ” (i.e. his amended records) that “ there are some signs of periodontal disease ”.

73. The issue before the PCC was not, therefore, so much about whether there were signs of periodontal disease, but rather whether Mr Mobasseri had carried out sufficient (or any) treatment planning in relation to the patients given that background.

74. With those points in mind, the challenge that Mr Mobasseri now brings to the findings under Ground 4 can be assessed: i) The fact that the BPE scores recorded in SoE were made up by Mr Mobasseri after the event does not render them entirely without value as evidence of the state of these patients’ dental health at the time when the appointments took place. In the case of each of Patients 9 and 10, Mr Mobasseri explained how he had identified particular issues from the radiographs and/or 3D scans which had been taken at or around the time of those appointments which led him to reach the (albeit ex post facto ) conclusion that the BPE scores should include 3s. That underlying material, which Mr Mobasseri relied upon in coming to those scores, itself supports the finding of periodontal disease in each of the Patients, as does (although not contemporary) the score given by Mr Mobasseri subsequently. ii) Whilst Mr Bateman acknowledged that periodontal health could not be ascertained from looking at a radiograph alone, in neither case was the radiograph the only evidence. Mr Mobasseri explained that, for Patient 9, he had noted gum inflammation, probably from the iTero scan, and that for Patient 10 he had seen inflammation on the iTero scan. He also explained that his view had been that both patients needed to see a hygienist, based on what he had seen at the time of the appointment. iii) Whilst it is correct to say that the PCC made an error in stating that the radiographic image for Patient 10 showed bone loss, that may have come about as a result of Mr Mobasseri’s own oral evidence about seeing bone recession in the radiographs. This error in itself does not cast doubt on the PCC’s findings on this point, given that there was in any event other supporting evidence (as identified above). iv) The fact that there was not a greater analysis in the PCC’s decision of the evidence for the existence of periodontal disease is not surprising given Mr Mobasseri’s own evidence that his amended records, which he said were accurate (albeit amended after the event), noted that there were some signs of periodontal disease.

75. As a result, Mr Mobasseri does not succeed in his challenge to the PCC’s finding of fact that there was some evidence of periodontal disease when each of Patients 9 and 10 attended their initial appointments. Ground 4 therefore fails. Ground 3 and Grounds 5(i)-(iii)

76. I will introduce these together, as Mr Horne did, although each of grounds 5(i), (ii) and (iii) will need to be dealt with separately.

77. These grounds of appeal were formulated as follows: “ Ground 3: The Committee erred in finding dishonesty under Charge 7(b) in relation to the findings of fact made under Charge 5. As part of its reasoning the Committee opined: You could not offer any explanation to the Committee for the change in dates in respect of Patients B, F and K, save to suggest that it was the result of administrative error ... And In reaching its decision, the Committee could identify no other reasonable explanation for the alteration of dates. Under Ground 3, it is submitted that the Committee erred as it applied the wrong legal test, shifting the burden on proof onto the Appellant. It was for the General Dental Council to prove their case on the Balance on the Probabilities, rather than for the Appellant to prove. As such, the Committee erred in law.” “ Ground 5(i): In respect of Patients B, F and K The Committee in finding dishonesty under Charge 7(b) in relation to the findings of fact made under Charge 5, relied on the motivation and reasoning of the Appellant was to ensure that the yearly NHS Contractual Targets were met. This was in error as: a. The Committee failed to give sufficient weight to the fact that that the claims in respect of these patients would have had a negligible effect on achieving the yearly targets as all of the alleged overclaiming amounted to only 0.28% of the yearly target; and/or b. The Committee failed to properly set out how this alleged reasoning allowed the Appellant to meet the requirement to meet the NHS Contractual Target. Ground 5(ii): In respect of Patient C and D in Charge 7(b) The Committee erred in failing to consider or weigh into the balance: a. Whether a second Band 3 claim, for the same treatment within 6 weeks of an earlier claim, would in fact have been eligible for any separate award of UDA points as against the yearly contractual target. b. That the Appellant did not require to attempt to submit incorrect duplicate claims to reach his yearly NHS Contractual Target; and c. The Committee erred in placing the burden of proof upon the Appellant by determining that he had failed to prove an administrative error, when the burden was on the GDC to prove dishonesty. Ground 5(iii): In respect of Patient I in Charge 7(b) The Committee erred in failing to consider or weigh into the balance: a. That there was no evidence led by the GDC that he needed to attempt to submit incorrect duplicate claims to reach his yearly NHS Contractual Target; and b. The Committee erred in placing the burden of proof upon the Appellant by determining that he had failed to prove an administrative error, when the burden was on the GDC to prove dishonesty.”

78. Ground 3 was said to be based on an error of law, being a contention that the PCC had reversed the burden of proof and effectively required Mr Mobasseri to prove his innocence. It was acknowledged by Mr Horne that grounds 5(i) to (iii) were challenges to finding of fact (although grounds 5(ii)(c) and 5(iii)(b) were really reflections of ground 3, and I will treat them as such).

79. The PCC, in considering the question of dishonesty, first referred to the following passage from paragraph 74 of the judgment of the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2018] AC 391 at paragraph 74: “When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

80. The PCC went on to say that it accepted the advice of its Legal Adviser that: “…the dishonesty alleged in respect of charge 5 must be considered entirely separately on its own: the fact that you admit dishonesty in respect of charges 4 and 6 has no bearing in the Committee’s decision making on whether your conduct was dishonest in respect of charge 5…”.

81. The PCC also stated, in respect of dishonesty under charge 5: “The dishonesty alleged under charge 5 depends on whether you submitted, or caused to be submitted, the inappropriate claims in the knowledge that they were dishonestly inappropriate and submitted for financial gain as opposed to doing so as the result of administrative or computer error.”

82. It does not appear to me that, in so stating matters, the PCC was seeking to impose upon itself a requirement in law to find motive, which both parties on the appeal agreed was not necessary in order to find dishonesty, but rather setting out the opposing factual positions that had been advanced in support of the parties’ respective contentions as to whether the conduct had been dishonest or not and what, on the facts and in the circumstances of this case, would indicate dishonesty.

83. I will explain the background to, and deal with the facts relating to, each of grounds 5(i), (ii) and (iii) separately and will deal with ground 3 as it relates to each of them. Ground 5(i)

84. This concerned Patients B, F and K. The claims for the treatment in question for those patients were, as was admitted by Mr Mobasseri, inappropriate because the claims resulted in the allocation of UDAs to the contract year before the one in which they should have been allocated. In other words, the claims were misdated such that the UDAs fell within the previous contract year. The details for each were as follows: i) Patient B’s treatment involved the provision of a mouthguard. The treatment acceptance date was 26 March 2018. The Band 3 claim submitted to NHS BSA showed a treatment completion date of 29 March 2018, but the actual date of completion (the fitting of the mouthguard) was 23 April 2018. The claim was submitted on 26 April 2018. ii) Patient F’s treatment acceptance date was 26 March 2018, when Mr Mobasseri undertook preparation for a crown to UR6. The Band 3 claim submitted to NHS BSA showed a treatment completion date of 30 March 2018, but the actual date of completion was 16 April 2018 (the fitting of the crown). The claim was submitted on 17 April 2018. iii) Patient K’s treatment involved a mouthguard. The treatment acceptance date recorded was 22 March 2019, though the patient first attended on 27 March 2019. The Band 3 claim was sent to the NHS BSA on 28 March 2019 and showed treatment completion the previous day (27 March, i.e. the date of first attendance). The fitting date is unclear, as it would not have required a consultation with Mr Mobasseri, but the mouthguard was returned from the laboratory only on 4 April 2019.

85. So, in respect of Patients B and F, the clinical records established that the courses of treatment being claimed for were completed in April 2018. However, on the claim form in SoE the treatment completion date recorded that the treatment was completed in March 2018, having the effect of bringing the claims into the previous NHS contract year (2017-2018, instead of 2018-2019). In respect of Patient K, the course of treatment completed in April 2019 (and so the claim ought to have been made in the 2019-2020 contract year), but the claim was made with an incorrect treatment completion date of 27 March 2019, bringing the claim into the 2018-2019 contract year. The treatment acceptance date for Patient K was also wrongly recorded (as 22 March 2019 rather than 27 March 2019) which, although in itself not the trigger date for allocation of the claim to a contract year, might be thought to be more consistent (than one of 27 March) with a treatment completion date of 27 March.

86. As noted by the PCC, the potential significance of the wrong allocation of claims to an earlier contract year is that where the number of UDAs for a contract year falls below the 4% threshold, the NHS becomes entitled to claw back a certain amount of the monies paid in respect of the UDAs for that contract year.

87. As I have already noted, Mr Mobasseri admitted that these claims were inappropriate and also that they were misleading. He did not, however, accept that the claims had been made dishonestly.

88. The first matter to consider is whether the PCC wrongly shifted the burden of proof on to Mr Mobasseri, as contended under ground 3.

89. In its submissions, the GDC: i) Stated that the PCC had correctly summarised the issue it had to determine regarding dishonesty in its formulation I have quoted at paragraph 81 above. ii) Pointed out that (a) at paragraph 8 of the determination, the PCC stated that it “ accepted the advice of the Legal Adviser ” which included clear advice that the GDC bore the burden of proof; and (b) at paragraph 9 of the determination stated: “ The burden is on the GDC to prove each allegation on the balance of probabilities. ” iii) Suggested that the correct application of the burden of proof was evident from the PCC’s decision in respect of Patient E, where the charge of dishonesty had been rejected, the PCC having stated as follows: “ The Committee could not rule out the possibility that the second claim might subsequently have been administratively closed in error and therefore could not be satisfied that dishonesty had been proved. ” iv) Contended that the PCC considered the alternative allegations provided by Mr Mobasseri, acting in accordance with the legal advice it had received: “ In considering whether the GDC has proved its case, and before finding dishonesty proved, you have to be able to safely exclude, as less than probable, other possible explanations for Mr Mobasseri’s conduct, see Soni v General Medical Council ”. [2015] EWHC 364 (Admin) v) Said that the PCC’s reasoning was that it determined that the changes of date were deliberately altered; then considered the alternative explanation by Mr Mobasseri (namely administrative error) and decided that was less probable than deliberate amendment; then went on to consider whether there was any other reasonable explanation for the alternation of dates; and concluded that the changes made no sense except for the purpose of attempting to assign UDAs to the previous contract year (for which it pointed out Mr Mobasseri would have been the only potential beneficiary) and that there “ would have been no reason for the administrative staff at the practice to have manipulated the dates in this way and submitted the claims for payment unless acting under your direction. ” As a result, “ [h]aving regard to the totality of the evidence, the Committee determined that you [Mr Mobasseri] had deliberately changed the dates of completion … ”.

90. In fact, the PCC’s reasoning on this issue was not set out in quite the way as described by the GDC in its submissions: i) The PCC first summarised the factual position in relation to the claims for patients B and F, and noting the potential for a claw back, and then summarised the factual position in relation to the claim for patient K, stating that the dates for treatment acceptance and treatment completion had been “ deliberately manipulated ”. ii) The PCC then stated: “You could not offer any explanation to the Committee for the change in dates in respect of Patients B, F and K, save to suggest that it was the result of administrative error. You denied that you would have had any motive to have brought the claims into the previous contract year, as you stated there would not in any event have been a shortfall in the number of UDAs to t[r]igger a ‘claw back’.” iii) The PCC then recorded that with “ regard to the totality of the evidence” it determined that Mr Mobasseri deliberately changed the dates of completion (and in the case of patient K, the date of acceptance) in order to bring the claims into the previous contract year, which conduct would be regarded as dishonest. iv) The PCC then went on to state that, in reaching its decision, it could identify no other reasonable explanation for the alteration of dates, noting that the dates were changed and the claims made in Mr Mobasseri’s name, using his log in details, that it was Mr Mobasseri who was solely responsible for closing treatment, and that it made no sense for this to have happened except for the purpose of attempting to assign UDAs to the previous contract year, for which Mr Mobasseri would have been the only person to have potentially benefitted. It stated there would have been no reason for the administrative staff “ to have manipulated the dates in this way and submitted the claims for payment unless acting under your direction ” and that the administrative staff would not have known the date on which the treatment was complete. v) The PCC also noted that there was “ no evidence … that the claim could be opened and submitted in this way as a result of computer error. ”

91. It seems to me that there are three problems (which are related) as a matter of principle with the PCC’s decision on this point.

92. First, the way in which the PCC determined this matter did, in practice, amount to a reversal of the burden of proof. The PCC’s introduction of the facts, in particular in relation to patient K (where it described the dates as having been “ deliberately manipulated ”), suggested that its starting point was that of deliberate conduct, before moving on to state that Mr Mobasseri could offer no other explanation except that the changes were a result of administrative error. Although the PCC went on to say that it made its determination of deliberate action having regard to the totality of the evidence, that does not deal with the burden of proof that it applied in so determining. Its approach cast onto Mr Mobasseri the burden of proving his alternative explanation, of administrative error, rather than the GDC of proving its case of deliberate conduct and dishonesty. This was exacerbated by the PCC’s failure to deal with Mr Mobasseri’s case in the two ways I identify below. In particular, the PCC’s failure to consider administrative error as a cause of the changes of date effectively required Mr Mobasseri to produce a positive explanation for how the inappropriate claims had come to be submitted, in the absence of which the PCC concluded they must have been submitted deliberately and dishonestly.

93. The fact that, as relied on by the GDC, the PCC recited at paragraphs 8 and 9 of its determination that the GDC bore the burden of proof does not stand in the way of the above analysis. Although that is what the PCC said in those introductory paragraphs, when it came to its decision in relation to Patients B, F and K, that is not the approach that it followed. Similarly, the fact that in respect of Patient E, having examined the evidence, the PCC concluded that an error could not be ruled out such that the PCC was not satisfied that dishonesty had been proved, does not demonstrate that the burden of proof was applied correctly in the decision relating to Patients B, F and K.

94. Second, whilst recording that Mr Mobasseri had suggested that the changes in dates must have been the result of administrative error, nowhere did it go on to consider that suggestion, or the likelihood of that having been the case. Although the PCC stated that it determined Mr Mobasseri had deliberately changed the dates “ having regard to the totality of the evidence” , and therefore perhaps implicitly rejecting administrative error, nowhere did it expressly consider it or explain why that was being rejected as an explanation. When the PCC moved on to say that it could identify no other reasonable explanation for the alteration of dates, other than that Mr Mobasseri had changed them deliberately, the PCC’s expansion on that focussed on it being Mr Mobasseri, rather than another member of staff, who must have made the changes or at least directed the changes to be made, rather than whether the relevant entries had been made in error. Indeed, the PCC’s reasoning on this point, in saying there would be no reason for the administrative staff to have “ manipulated ” the dates suggests it was at this point of the reasoning assuming deliberate change, and therefore not examining whether it might have been done in error.

95. Third, although the PCC recorded Mr Mobasseri’s contention that he would not have had any motive to bring the claims into the previous contract year, as there would not have been a shortfall such as a trigger a clawback, the PCC did not go on to deal with that. Whilst, as I have noted, motive might not have been a legally necessary part of what the PCC needed to find, it was related to its reasoning in explaining why it could not identify any other reasonable explanation (including saying Mr Mobasseri would have been the only person potentially to have benefited from the changes in dates). Moreover the PCC itself had set out what it was looking for in terms of dishonesty in this case when articulating that the issue was whether the claims were “ dishonestly inappropriate and submitted for financial gain as opposed to doing so as the result of administrative or computer error. ” Mr Mobasseri’s case was that the Camden Practice was not close to a shortfall, such that the addition of these UDAs to the previous contract year would not have made any difference at all to what he was paid under the NHS contract. The PCC did not address that or consider any evidence relating to it; nor did it explain whether it rejected it and, if so, on what basis.

96. Therefore, having due regard to the deference to be paid to a decision of the PCC, which had the advantage of having seen and heard the witnesses, and more generally had familiarity with all the evidence in the case, as well as broader expertise in making factual determinations in such matters, this is a point on which the appeal court should intervene. The PCC did not adopt the correct approach (by, in practice, not applying the correct burden of proof) and gave no consideration (or, at least, no express consideration) to the two matters raised by Mr Mobasseri as to why he was not dishonest and why the conduct was not deliberate.

97. In relation to Mr Mobasseri’s case that he had no financial motive to make the changes to the dates, it was not controversial that he would only have benefitted from any “manipulation” of the claims into the preceding contract year if the effect of doing so avoided a clawback. Such a clawback would only arise if the practice had a shortfall of 4% or more against his contractual target. For the years in question, as I have already noted, the Camden Practice was contracted to provide 18,111 UDAs. To trigger a clawback, therefore, there would have to have been a shortfall of 725 UDAs. To put that in context, the claims for Patients B and F (which were wrongly claimed in the 2017-2018 year) were together worth 24 UDAs; the claim for Patient K (which was wrongly claimed in the 2018-2019 year) was worth 12 UDAs.

98. There was no evidence that the Camden Practice was close to a shortfall. On the contrary, Mr Mobasseri gave evidence that it was not. For example: i) When asked about Patient B’s treatment, he said: “If you look at the records that year, we performed about 18,000 UDAs. My 12 UDAs here or there would not have mattered.” ii) When asked about Patient K’s treatment, he said: “… we were not in need. We didn’t have to bump up the numbers. We were normally always good with our targets of the UDAs. … why would we have a reason to bump up the numbers knowing that we are on target with our contract here?” iii) He explained that there was only once when the practice had fallen short, which was after the two years in question, and that was caused because the practice had to be shut down during the COVID pandemic. However, he gave evidence a number of times that, apart from that, he knew that the practice was on target with its UDAs, and that they were not even in the region of a 4% shortfall. He also made the point that most of the UDAs in his practice were provided by other dentists – he said he provided up to a maximum of 5% of the annual UDAs. iv) His evidence, therefore, was that at the time the courses of treatment were closed for each of Patients B, F and K, the Camden Practice was on target to deliver its contracted UDAs, irrespective of these 2 claims for 2017-18 and the 1 claim for 2018-19. v) The GDC did not challenge this evidence about the Camden Practice’s contractual performance. It no doubt could have done so, and I was told that all of the claims data for each of the contractual years in question was available. However, the GDC did not seek to suggest before the PCC (or indeed on this appeal) that the Camden Practice was anywhere near clawback territory, or that Mr Mobasseri might have thought that it was. vi) In the absence of any challenge to that evidence, or of any evidence to the contrary from the GDC, it is difficult to see how, if the PCC had considered this, it could have concluded that Mr Mobasseri had a financial motive to make the changes to the dates for these patients.

99. In relation to the suggestion that the changes must have been the result of administrative error, as I have noted above, this was not dealt with directly by the PCC. The evidence the PCC did not consider included his account that, whilst it was the dentist’s responsibility to open and close a course of treatment on the system, because Mr Mobasseri was not available at the Camden Practice the whole time he had given access to his managers and his practice team to log in on his behalf, and that sometimes other members of the team would close the treatment. There was no evidence given (for either side) by anyone else as to how matters at the Camden Practice were run in this respect – Nurse A did not give evidence about how claims were opened, closed and submitted to the NHS.

100. Whilst Mr Mobasseri was not able to articulate a particular theory of precisely how the errors might have been made, and by whom, that was not particularly surprising in the context of the evidence that was given. However, the chance of an error could not have been dismissed out of hand. Moreover, the PCC’s own lens through which it set out to assess dishonesty, was whether the claims had been submitted for financial gain. There was no evidence that they had been. The evidence Mr Mobasseri gave was inconsistent with the claims being deliberately misdated and submitted with financial gain in mind (and, as I have said, no evidence to the contrary was advanced).

101. It was the GDC’s burden to prove dishonesty on Mr Mobasseri’s part in relation to these claims (and not his burden to prove an innocent explanation). The PCC made it clear what it was looking for – that the claims were “ submitted for financial gain ” – but the evidence was against that. Moreover, in the absence of any financial reason to change the dates on the claims, it is difficult to see why anyone would have deliberately changed them – there was certainly no suggestion of any such other reason before the PCC or on the appeal. In the circumstances, the PCC’s finding of dishonesty in respect of the ground 5(i) conduct must be set aside. Ground 5(ii)

102. This concerned Patients C and D. The claims for the treatment in question for those patients were, as was admitted by Mr Mobasseri, inappropriate because the treatment claimed for did not take place. Each of Patients C and D had had treatment, for which an appropriate claim was made, and in each case there followed a further claim replicating (or similar to) the first claim (but with different dates) when there had been no such second course of treatment. The details for each were as follows: i) Patient C: There was a genuine Band 3 claim for a nightguard with a treatment acceptance date of 9 January 2019, a completion date of 23 January 2019 and a submission date of 7 March 2019. However, in addition, the practice submitted an inappropriate Band 3 claim for a nightguard with a treatment and acceptance date of 4 March 2019, which was submitted on 12 March 2019. Patient C had not attended on 4 March 2019, and the claim did not relate to treatment actually provided. ii) Patient D: A legitimate Band 3 claim was made for a 2-tooth acrylic denture, in respect of which the treatment acceptance date was 9 January 2019, the completion date was 25 January 2019, the claim was submitted on 7 March 2019. However, an inappropriate claim for a 2-tooth metal denture was submitted on 19 February 2019, with treatment acceptance and completion both recorded as being on 16 February 2019. The patient had not attended on 16 February 2019, and the claim did not relate to treatment actually provided.

103. The PCC noted that Mr Mobasseri had not been able to explain how the second, false, claim had come to be made in each case, although he had suggested that it might have been the result of administrative error by the practice staff who might have inadvertently submitted the claim in both SoE and in R4 during the changeover in software. However, it rejected the suggestion these were duplicate claims, due to the inconsistent dates. The PCC noted that the false claim for Patient C was opened and closed on 4 March 2019 using Mr Mobasseri’s log-in details. The PCC found that it made no sense for this to have happened except for the purpose of attempting to claim twice for the same treatment, for which Mr Mobasseri would have been the only person to benefit. It also said this about the administrative staff in relation to the Patient C claim (and something similar in relation to the Patient D claim): “There would have been no reason for the administrative staff at the Practice to have opened and closed the second course of treatment and submitted it for payment except if acting under your direction. The administrative staff would not have known the date on which treatment is complete, as this is a clinical matter for the treating dentist or other clinician to decide. There was also no evidence before the Committee that the claim could be opened and submitted in this way as a result of computer error.”

104. The PCC also recorded (in respect of the Patient C claim) that: “You stated in evidence that you knew in the event of a duplicate claim being submitted to the NHS for the same course of treatment it would not have been paid. However, this was not a duplicate claim: the dates had been manipulated so that what was claimed would appear as a separate course of treatment.”

105. It said something similar in relation to the Patient D claim, noting also that in respect of Patient D “ the type of denture had been changed, meaning it would appear as a different course of treatment. ”

106. The PCC also noted that these patients were both exempt from payment of NHS charges, which meant that a second claim was less likely to have been challenged by the patient, as the practice would not have been asking them to pay any additional charges.

107. In respect of the second claims for both Patients C and D, the PCC came to the same conclusion: “Having regard to the totality of the evidence the Committee determined that it is more likely than not that you deliberately changed the dates in order to claim twice for the same course of treatment. Such conduct would clearly be regarded as dishonest by the standards of ordinary decent people.”

108. The first point here, as with the previous set of patients, is whether the PCC reversed the burden of proof in relation to the question of dishonesty. The way in which it approached its reasoning in terms of structure for Patient C and D does not suggest, in the same way as with Patients B, F and K, that it applied the wrong burden of proof. It is right to say that some of the language used in the PCC’s reasoning suggests an assumption of deliberate conduct (rather than a second claim being submitted in error), in particular in saying that the dates had been “manipulated” for Patient C (and, though less obviously, that the dates and type of denture had been “changed” for Patient D). That on it own does not, however, seem to me to show that an incorrect burden of proof had been applied.

109. However, there is another problem with the PCC’s reasoning for these patients. The PCC held (in respect of both Patients C and D) that it made no sense for the false claim to have been made except for the purpose of attempting to claim twice for the same treatment, for which Mr Mobasseri would have been the only person to benefit. However, Mr Mobasseri had given evidence, which the PCC did not refer to or deal with, that he understood that the NHS rules meant that the Camden Practice would not be paid for the second claim in these sorts of circumstances. In other words, in his mind, there was no financial advantage to be gained by submitted a second “false” claim in these circumstances: i) He gave evidence both in chief and in cross-examination to this effect, the gist of which was that he understood from courses about the NHS regulations that if he sent one Band 3 claim for a patient, and then another Band 3 claim (not a duplicate – another claim) within two months, he would not be paid for that second claim, even if it was for different items, and even if the claims had different start and finish dates. ii) It is clear from the transcript of his cross-examination that counsel for the GDC was seeking to explain to him that that was not the position. However, it is equally clear from the transcript that that was (and had been) his view of how the regulations worked. iii) It may be that this was the point the PCC was seeking to deal with in saying: “You stated in evidence that you knew in the event of a duplicate claim being submitted to the NHS for the same course of treatment it would not have been paid. However, this was not a duplicate claim: the dates had been manipulated so that what was claimed would appear as a separate course of treatment.” However, Mr Mobasseri’s evidence went further than saying he knew a duplicate claim would not have been paid. His evidence was that repeat claims (with different dates and different items) would not have been paid. iv) For the purposes of the dishonesty test set out in Ivey , the PCC had to determine first what Mr Mobasseri’s state of mind was. For that purpose, it did not matter whether the understanding he held was correct or incorrect regarding the payment of such claims by the NHS – the point is whether or not that was his understanding. v) However, the PCC did not deal with this evidence at all. It did not say whether it rejected or accepted it as evidence of his state of mind at the time the claims were submitted. If it was rejecting it as deliberately false, it ought to have said so and explained why (see, for example, Mostyn J in Kirschner v General Dental Council [2015] EWHC 1377 at paragraph 28). In the absence of any consideration of this evidence, it seems to me that I must proceed on the basis that it was honestly given, such that Mr Mobasseri’s state of mind had been that claims such as the second claims for Patients C and D would not be paid by the NHS. vi) That being the case, in Mr Mobasseri’s mind, there would have been no financial advantage to him in putting in the second claims for Patients C and D. That removes the central plank from the PCC’s reasoning (at least insofar as it is sought to support a finding of dishonesty on the part of Mr Mobasseri) that: “It makes no sense for this to have happened except for the purpose of attempting to claim twice for the same treatment, for which you would have been the only person to benefit.”

110. The PCC’s reasoning on the issue of dishonesty in respect of Patients C and D was, essentially, that the only explanation which made sense was the dishonest one it arrived at, namely that Mr Mobasseri had deliberately made the second claim in each case in order to claim twice, as he would have been the only person to benefit from doing so. However, in light of Mr Mobasseri’s evidence as to his state of mind – that he would not benefit from doing so – I do not see how that can stand.

111. It must also be recalled that the articulation the PCC gave of what it was looking for in order to find dishonesty under charge 5 was submission of the inappropriate claims “ in the knowledge that they were dishonestly inappropriate and submitted for financial gain … ”. That is how the case was argued before the PCC and determined by it. Given Mr Mobasseri’s evidence that I have referred to, it cannot be said that these claims were submitted by Mr Mobasseri for the purpose of financial gain.

112. The rest of the PCC’s reasoning for these patients consisted of rejection of other explanations, including whether the administrative staff might have opened and closed the second course of treatment, which the PCC found they would not have done, except if acting under Mr Mobasseri’s direction. It is not entirely clear whether, in doing so, the PCC took into account all of the evidence given by Mr Mobasseri relating to the changeover from R4 to SoE, which he had suggested was the likely reason for the second set of claims going in. That in itself does not appear to me, however, to be a particularly compelling explanation – it might explain genuinely duplicate claims (with the same dates) which had, by mistake, been entered and then closed and sent on both systems, but it is difficult to see how it explains the situation here, where the second claim has different dates (and, in the case of Patient D, a different material for the mouthguard). However, it is not clear that the PCC really considered the possibility of the making of an error being behind the second claims for treatment, as opposed to it being a deliberate act, including where, by use of terms such as dates being “manipulated”, the PCC appears to have been focused on it being deliberate.

113. Whilst there was, therefore, no particularly persuasive factual account as to how the second set of claims had come to be made by way of administrative error, that could not in itself prove dishonesty on Mr Mobasseri’s part, still less in circumstances where the PCC made it clear that what it was looking for in order to find dishonesty was that the claims “ were dishonestly inappropriate and submitted for financial gain ”. Mr Mobasseri’s evidence, which the PCC did not reject, or deal with at all, stands in the way of the suggestion that, however the second claims came about, it was done by Mr Mobasseri for financial gain.

114. Moreover, on this appeal, the GDC did not suggest (either in its written or oral submissions) that I should take my own view of Mr Mobasseri’s evidence on this issue (his understanding of how the NHS regulations worked in this respect and what he would normally get paid for) and reject it, or explain why it should be rejected.

115. In the circumstances, the PCC’s conclusion that the claims in respect of Patients C and D were dishonestly made by Mr Mobasseri has to be set aside. Ground 5(iii)

116. This ground relates to the PCC’s findings in relation to the claim for Patient I’s treatment. This is different to the other claims for treatment dealt with under Ground 5 because before the PCC Mr Mobasseri contended (as he does on this appeal) that not only was he not dishonest, but also that the claim for treatment in respect of Patient I was not inappropriate and not misleading. In other words, he contends that the claim for Patient I’s treatment was a valid claim for treatment he actually carried out. The PCC found that it was inappropriate, misleading and dishonest.

117. As recorded by the PCC: “The claim in respect of Patient I was alleged to be inappropriate because you claimed for an emergency course of treatment on 1 June 2018 in circumstances where it is alleged that the treatment in fact formed part of an existing planned course of treatment to redo a failed root canal which had been carried out by another dentist.”

118. There was no doubt that Patient I was given treatment on 1 June 2018. The issue was what were the circumstances of that treatment. Mr Mobasseri submitted a claim in relation to this treatment as Band 1 (Urgent) treatment. The GDC contended (and the PCC found) that the treatment on that date in fact formed part of an existing planned course of treatment, and therefore should not have been the subject of a separate claim.

119. The PCC recorded that: i) At an appointment on 14 March 2018 with Patient I, Mr Mobasseri had carried out an examination, an inlay prep, taken an x-ray of the UR2 and identified that the UR2 required re-root canal treatment. ii) The patient returned for an appointment on 1 June 2018 for re-root canal treatment on UR2. The contemporaneous notes for that 1 June appointment recorded that the patient continued to experience pain in respect of the failed previous root canal treatment and stated: “ Next appt [appointment] – pt [patient] to come back for 2 nd stage of root canal treatment. ” iii) When Mr Mobasseri transferred the contemporaneous notes from the Word documents into SoE some 2 years later, he made significant changes to what had been recorded, stating that this was an “ emergency appointment ” and that the patient had attended in “ severe pain ”. He deleted the reference to the patient returning for the second stage of root canal treatment and replaced it with: “ Next appt – pat to come back to see if tooth can be saved. ” He also added the following: “ A course of antibiotics recommended, patient confirms not being allergic to any antibiotic, amxycillin 500mg 21 capsules for 7 days 3 times a day ”

120. The PCC pointed out that some elements of Mr Mobasseri’s version of events had only emerged in his oral evidence. It relied on the contemporaneous version of the notes. It said that the addition of the detail about antibiotics had been added without there having been any contemporaneous record of antibiotics having been prescribed and said Mr Mobasseri could not have recorded that detail of the prescription some 2 years after the event. It also noted his change in evidence about how long the appointment on 1 June lasted. As a result, the PCC concluded: “In the Committee’s judgment, having carefully examined Patient I’s records and the explanations you gave in evidence for her treatment, the Committee did not consider that Patient I attended you as a separate emergency appointment on 1 June 2018 to justify a Band 1 (urgent) claim under the relevant regulations. The Committee determined that it is more likely that you had retrospectively amended the records in SoE to characterise it as an emergency appointment to justify the additional claim you had made to the NHS for emergency treatment. You knew that the claim was inappropriate and such conduct would clearly be regarded as dishonest by the standards of ordinary decent people.”

121. Mr Mobasseri’s account had been that he knew Patient I very well – she had previously been his daughter’s live-in nanny (although by this point in time that was no longer the case) and at some point he said she had done some administrative work at the Camden Practice – and that he recalled the appointment well. He confirmed he had seen Patient I on 14 March, and noted that there had been a previous root canal treatment which needed redoing. He said when he saw her again, at his house (where she had come to help with the cleaning), on 1 June she said she had been to a dentist in Romania for treatment, but the pain was now worse. He said his wife told him to drive Patient I to the practice, which he did, and then dealt with it as an emergency treatment.

122. In his oral evidence in chief he said he “ spent about an hour and a half, two hours with that emergency ” and thought it was fair to charge for an emergency.

123. His account was that the contemporaneous note on 1 June was made by his nurse. He said that she must have assumed that the next appointment would be for the second stage of root canal treatment, suggesting that a dental nurse would not always see the complexity of a re-root canal treatment, and that he would have to make a clinical judgment. Although on at least one occasion when being asked about this when giving his oral evidence, he referred to it as his note, before correcting himself to refer to his nurse as having made it: “ …the fact that I put in my – or maybe my nurse put it in my Word records … ”

124. Mr Mobasseri’s ground 3 challenge, based on the reversal of the burden of proof, also applies to the PCC’s determination in relation to Patient I. However, Mr Horne’s skeleton argument on this appeal stated: “ The appellant accepts that there is nothing on the face of the determination that directly demonstrates a reversal of the burden of proof for this claim. ” That is indeed the case. There is nothing in the PCC’s reasoning in relation to Patient I which suggests it did not apply the burden of proof in the way in which it had set out at paragraphs 8 and 9 of its determination.

125. However, the challenge was still made on this basis in relation to Patient I stating: “…if … the PCC did so [i.e. applied a reverse burden of proof] in relation to Patients B, C, D, F, and K, it is likely that the Committee approach his [Mr Mobasseri’s] evidence in relation to this patient in the same manner.”

126. However, that does not follow. The reasoning of the PCC is evident from its determination in respect of each patient (or group of patients) separately. I have set out above the reasons why it seems to me that the PCC’s reasoning in respect of Patients B, F and K involved a reversal of the burden of proof. The same cannot be said of its reasoning in relation to Patient I. There is no “read across” to be done in that respect.

127. There is no error of principle in the way in which the PCC approached determination of the issues in relation to Patient I. In truth, this is a direct challenge to the primary findings of fact made by the PCC about the treatment that took place on 1 June 2018. In respect of the particular points made by Mr Mobasseri in relation to this: i) Mr Mobasseri submits that the PCC wrongly found that the notations in the contemporaneous notes for 1 June 2018 were Mr Mobasseri’s rather than those of his dental nurse. It is right that the PCC described the notes as “ your contemporaneous notes for the appointment ” in which “ you recorded… ”. And it is right that it was Mr Mobasseri’s evidence that his nurse made the notes on the laptop whilst he attended to the patient. However, that does not appear to me to undermine the PCC’s point. The emphasis in this part of the PCC’s determination was on the fact that these were the contemporaneous notes taken at the appointment, as compared to the notes which Mr Mobasseri transferred into SoE some two years later, when he changed the critical detail. The PCC spent much time at the hearing and in its determination considering the “system” (such as it was) for note-taking at Mr Mobasseri’s appointments and no doubt had well in mind who was doing the typing during the course of the appointments. Moreover, although it may have been the nurse at the laptop keyboard taking the notes, they were Mr Mobasseri’s notes of the appointment – that was his contemporaneous record of what took place – as Mr Mobasseri confirmed as a general point to the tribunal in its questioning of him, he checked the notes that had been made by his dental nurses. Moreover, despite Mr Mobasseri’s protestations to the contrary in his oral evidence it is difficult to see how his dental nurse would have not recorded things differently if the appointment had been as Mr Mobasseri contended it had been before the PCC. ii) Mr Mobasseri contended that the PCC failed to consider his explanation about the clinical uncertainty over the next step in treatment. This does not take things any further. His evidence about this was not particularly clear, and appears to have amounted to saying that his dental nurse would not always see the complexity of a re-root canal treatment, and that he would have to make a clinical judgment about what to do next. In other words, this was a way in which he was seeking to explain away the notes, and suggest that his dental nurse might not have written things down correctly. It is a facet of the point considered at (i) above. But, as I have said, the PCC had well in mind who was making the notes at the time and that Mr Mobasseri checked them (and, indeed, then made the claim for the emergency treatment). Mr Mobasseri’s evidence about this may have been his attempt to explain away the notes, but it was not convincing, and not surprising that the PCC did not feel the need to deal with it expressly. iii) Mr Mobasseri submitted that the PCC failed to “ consider the paucity of any financial motive ”. Whilst he accepted that the presence of financial gain is not a prerequisite to a finding of dishonesty, he submitted that the absence of such a motive is a powerful factor against the dishonesty alleged in this case. a) In relation to this, the PCC said that it was likely he had retrospectively amended the SoE records to characterise it as an emergency appointment to justify the additional claim made to the NHS for emergency treatment. In his skeleton argument, Mr Horne said that the dishonest gain of 1.2 UDAs would have equated to additional gross financial income of about £40 (which was not disputed by Ms Tahta). One may think that, in the grand scheme of things, that it not a huge amount of money. But, nonetheless, it would be a financial gain and, even at that level, the PCC was entitled to regard it as such. b) Moreover, the battle ground in relation to the claim for Patient I was slightly different to that for the other Ground 5 Patients where the PCC found dishonesty. There was no case that emergency treatment had been claimed for in error. Mr Mobasseri’s defence in respect of Patient I was not that a claim that should not have been put through was made in error. Rather, it was that the claim was entirely appropriate. The claim was made deliberately, for emergency treatment, not long after the 1 June appointment. It is difficult to see that, once the PCC had concluded that the appointment was not for emergency treatment as a matter of fact, it could have found otherwise than that the claim for emergency treatment had been submitted dishonestly. Seeking a financial motive was, therefore, not a factually central inquiry in relation to this patient. iv) Mr Mobasseri also suggested that the PCC was “ influenced in finding dishonesty by the errors made in their appropriate to the cases of Patients B,C, D, F and K. ” I do not accept that. There is nothing in the section of the determination dealing with Patient I that suggests that the PCC was influenced by what it had found in respect of other patients. Moreover, the PCC stated at the end of its consideration of the Ground 5 matters that, in “ reaching its findings of fact in relation to the claims in Schedule 8, Schedule 8 to the charge sheet listed the claims for Patients B-F, I and K, in respect of which the charges relating to inappropriate claims for treatment were made. the Committee examined each claim individually … ”, and there is no reason to doubt that was what it had done. Mr Mobasseri’s suggestion is also undermined by the fact that, although the PCC had found he was dishonest in relation to the claims for Patients B, C, D, F, I and K, it found he was not dishonest in relation to the (inappropriate and misleading, as admitted) claim for Patient E. v) Mr Horne’s skeleton argument also drew attention to “ how emotional [Mr Mobasseri] became [in his oral evidence] when refuting ” the suggestion of financial motivation for this claim. That seems to me to be a good illustration of a point where an appeal court must be very wary indeed before seeking to draw any inference, or other assistance, that the PCC did not itself draw. Detecting particular emotion from a transcript is far from straightforward, still less seeking to attribute to any such emotion what that might mean in terms of the credibility of the evidence being given at the time. I do not see how I can place any weight on such a point (at least in this case by reference to the part of the transcript to which I was directed for this point) in assessing whether the PCC was correct in its assessment of Mr Mobasseri’s evidence.

128. In his oral submissions, Mr Horne made two additional points that had not been made in his skeleton argument in seeking to undermine what the PCC had found in relation to this issue. Neither of them advance matters. i) Mr Horne criticised the PCC’s statement that: “You also initially stated in oral evidence that the appointment would have lasted nearly two hours but changed your account when it was put to you that this would have been unusually long for an emergency appointment.” He said that was a mischaracterisation, and that it had not been put to Mr Mobasseri that nearly two hours would have been “unusually long” for an emergency appointment. However, Mr Mobasseri did give inconsistent evidence about this. When first asked about it in his oral evidence, he said he spent “ an hour and a half, two hours with that emergency… ”. Later, when asked by the tribunal he said it was 45 minutes to an hour, although it is fair to say that does not appear to have been prompted by any suggestion that his first account would have been unusually long for an emergency appointment. But that does not seem to me to have any impact on the PCC’s reasoning on this point. ii) Mr Horne also referred to retrospective addition by Mr Mobasseri of the information about antibiotics to the record, and the PCC’s statement that he could not have recalled the detail of the prescription some two years later. In his oral evidence, Mr Mobasseri had said that the Camden Practice dispensed antibiotics, and that the dose and recipient were recorded on a spreadsheet which he must have gone back to look at when retrospectively adding the detail to his notes. However, there was no direct evidence of such a spreadsheet beyond Mr Mobasseri’s own word, and this was not an explanation he had produced before giving his answers in cross-examination, and nor had he sought to find and produce a copy of the spreadsheet in question (which, when asked, he said would be difficult because he had sold the Camden Practice), such that his evidence could not properly be tested. It was, therefore, somewhat flimsy evidence and unlikely to have made any difference to the PCC’s decision on this point even if it had referred to it. But, in any event, even if he was right in having such a spreadsheet to refer to when retrospectively adding to the notes, all that would do would explain the addition to the notes. No one suggested that it would mean that the appointment must have been an emergency one.

129. As a result, none of the criticisms of the PCC’s finding on this point were good ones. This was a factual finding of the PCC, where there is no problem with its approach to the issue, and its finding was certainly not “ plainly wrong or so out of tune with the evidence properly read as to be unreasonable ”. It was not a finding that no reasonable tribunal could have reached. I therefore dismiss the appeal on ground 5(iii). Conclusion on the appeal against Stage 1

130. For the reasons I have set out above, the appeal on grounds 1 to 6 is dismissed, save for that on grounds 5(i) and 5(ii) (and on ground 3 insofar as it related to the facts underlying grounds 5(i) and 5(ii)). The result is that the conclusions of the PCC remain undisturbed except that its findings that Mr Mobasseri was dishonest in respect of the inappropriate and misleading claims for treatment for Patients B, C, D, F and K are set aside. Ground 7 – appeal against sanction

131. As I have noted at the outset of this judgment, the PCC imposed on Mr Mobasseri the sanction of erasure from the Register. That sanction is explained as follows at paragraph 6.30 of the Guidance for the Practice Committees including Indicative Sanctions Guidance (“ISG”): “The ability to erase exists because certain behaviours are so damaging to a registrant’s fitness to practise and to public confidence in the dental profession that removal of their professional status is the only appropriate outcome. Erasure is the most severe sanction that can be applied by the PCC and should be used only where there is no other means of protecting the public and/or maintaining confidence in the profession. Erasure from the register is not intended to last for a particular or specified term of time. However, a registrant may apply for restoration only after the expiry of five years from the date of erasure.”

132. Ground 7 of the appeal was as follows: “Further to Grounds 1 to 6 above, the Committee erred in determining a sanction of erasure, when suspension for 12 months would have been more appropriate when all of the factors were taken into account. The Committee failed to take properly into account the significant amount of remediation completed by the Registrant, in addition to the fact he had been under interim suspension from December 2021 to September 2023, being a period just shy 2 years, having been on conditions since October 2020, and then subsequently conditions were reimposed September 2023.”

133. I have already set out above the approach to an appeal on sanction that the parties agreed was appropriate, based upon the Sastry case. I approach this ground on that basis.

134. I should also add that at the hearing Mr Horne made it clear that, if I overturned the PCC’s decision on any of grounds 1 to 5, Mr Mobasseri’s preference was that I deal with the appeal on sanction on the basis of my decision on those grounds, rather than remit the decision on sanction to the PCC to determine on a fresh basis. Ms Tahta said the GDC was neutral on that point. Given those positions, I will determine ground 7 of the appeal rather than remit it to the PCC.

135. In considering matters at Stage 2 of the proceedings before it, the PCC first summarised its findings against Mr Mobasseri (as I have set out above at paragraph 34), and recorded that counsel appearing for Mr Mobasseri at the hearing before the PCC did not contest a finding of misconduct or of impairment. The PCC nonetheless set out its reasoning in respect of both misconduct and impairment. It first considered the GDC’s Standards for the Dental Team (September 2013), and noted: “There were substantial failures in your standard of record keeping and significant clinical failings in terms of diagnostic assessments and treatment planning, which put patients at a real risk of harm. … Your dishonesty in retrospectively altering numerous patient records, including to mislead the NHS as part of its monitoring process, and your dishonesty in submitting inappropriate claims for treatment are matters which clearly breach basic professional standards and fundamental tenets of the profession” It concluded that the facts it had found in respect of both the clinical and probity failings were serious and amounted to misconduct.

136. The PCC then dealt with impairment, considering whether Mr Mobasseri’s conduct was remediable, whether it had been remedied and the risk of repetition. It also: “…had regard to the wider public interest, which includes the need to uphold and declare appropriate standards of conduct and behaviour in order to maintain public confidence in the profession.”

137. The PCC considered that the clinical failings were remediable, through continued learning, reflection and evidence of embedded improvement in practice. It commended Mr Mobasseri on the steps he had already taken towards his remediation, recognising that he had insight into the importance of record keeping and had updated his practices. It also said: “The Committee recognised the substantial remedial steps you have already taken, including comprehensive CPD activity and substantial changes in your record keeping practices, whereby your records are now contemporaneously maintained to a high standard. The evidence of your workplace supervisor is that you are a highly skilled, caring and competent practitioner who has taken these proceedings seriously and who has worked well under supervision to embed substantial improvements in his clinical practice.”

138. However, the PCC considered Mr Mobasseri had not yet fully remedied other clinical concerns, noting that his admissions had been limited to record keeping failings, and that he had denied the clinical charges relating to the taking of BPEs and the diagnosis and treatment of caries and periodontal disease prior to commencing Invisalign treatment. In relation to the failure to routinely carry out BPEs, the PCC added: “No meaningful reflection on this was provided by you to the Committee, either at this stage of the hearing or as part of the factual inquiry, where your evidence to the Committee tended to be dismissive of the clinical importance and significance of BPE charting notwithstanding the CPD activity which you have undertaken.”

139. The PCC also recorded that Mr Mobasseri provided no meaningful reflection on his failure to recognise or treat caries and periodontal disease, and appeared to lack insight into the clinical importance of doing so before commencing orthodontic treatment.

140. The PCC summarised in respect of the clinical failings by saying that Mr Mobasseri’s failings in that respect appeared to be the result of attitudinal failings, rather than a lack of clinical skill and competence, and there was only limited evidence of insight and remediation in this attitudinal respect. It concluded that: “You had placed patients at an unwarranted risk of harm in the past and, in the absence of further reflection and insight, are liable to do so again in the future.”

141. In relation to the acts of dishonesty in retrospectively altering clinical records and making inappropriate claims for treatment to the NHS, the PCC considered that was difficult to remedy, as it went to Mr Mobasseri’s character. It noted the repeated acts of dishonesty that had been carried out in various ways over an extended period: “You falsified the clinical records of 29 patients, including with the intention of misleading the NHS as part of its monitoring processes in respect of 14 of those patients. You also dishonestly submitted inappropriate claims to the NHS for 6 patients. Whilst the sums involved were modest, the principle involved remains the same: you abused the trust which the NHS placed in you as a registered dentist when claiming from the public purse.”

142. The PCC noted that the altering of the clinical records placed patients at an unwarranted risk of harm, and that such alterations and the inappropriate claims were acts of dishonesty which breached “ fundamental tenets of the profession and which bring the profession into disrepute. ” In the PCC’s judgment, Mr Mobasseri remained liable to act dishonestly in the future due to the attitudinal nature of his misconduct.

143. The PCC examined Mr Mobasseri’s conduct against the four limbs of the test identified by Dame Janet Smith at paragraph 25.67 of her Fifth Shipman Report as an appropriate test for panels considering impairment of a doctor’s fitness to practise, and concluded that all four limbs were engaged, and that Mr Mobasseri’s fitness to practise as a dentist was currently impaired as a result of both the clinical and probity concerns, concluding: “There remains a risk of repetition which puts the public at a risk of harm. The wider public interest also requires a finding of impairment to mark the seriousness of your dishonesty.”

144. The PCC then considered sanction, noting that its purpose is not to be punitive, but to protect the public and the wider public interest. It noted the following aggravating and mitigating factors present in this case: “57. The aggravating factors include: - a risk of harm to patients in respect of both your clinical failings and your retrospective alteration of clinical records; - premeditated dishonesty, including the deliberate alteration of clinical records; financial gain in respect of the NHS claims; - misconduct sustained and repeated over an extended period; - a blatant or wilful disregard of the systems regulating the profession, in that you falsified contemporaneous records to mislead the NHS and also made inappropriate claims to the NHS; - attempts by you to cover up wrongdoing by retrospectively altering the contemporaneous records; and - you demonstrate a lack of insight in that your insight in respect of both the clinical and probity failings is still developing.

58. In mitigation, the Committee had regard to: - your personal circumstances leading up to the incidents in question; - the evidence of good conduct following these incidents; - that you are otherwise of good character with no previous adverse fitness to practise history and have undertaken substantial remediation action in respect of the clinical aspects of your clinical failings, wholeheartedly embracing the interim conditions to which your registration is currently subject; - the steps you have taken to avoid a repetition of your clinical failings, including substantial changes to your record keeping practices; - the fact that you are remorseful; and - the passage of time, with the last incident occurring in 2021.”

145. The PCC also recorded that it had regard to the “ numerous testimonials ” that had been given in support of Mr Mobasseri’s character and performance as a dentist, all of which it recognised spoke extremely highly of his clinical skills and his warm and personable nature. The PCC described them as “ substantial and impressive and come from both colleagues and patients. ”

146. The PCC then considered sanction in ascending order of restrictiveness. It considered that “no further action” or a reprimand would be wholly inappropriate, and that subjecting Mr Mobasseri’s registration to compliance with conditions of practice, whilst potentially being sufficient to address the clinical concerns, could not be designed to address in a measurable, workable and proportionate way the probity concerns. The PCC therefore next considered whether suspension for 12 months (with or without a review) would be appropriate, having regard to the factors indicated in support of suspension at paragraph 6.28 of the ISG, namely: “- there is evidence of repetition of the behaviour; - the Registrant has not shown insight and/or poses a significant risk of repeating the behaviour; - patients’ interests would be insufficiently protected by a lesser sanction; - public confidence in the profession would be insufficiently protected by a lesser sanction; - there is no evidence of harmful deep-seated personality or professional attitudinal problems (which might make erasure the appropriate order).”

147. The PCC considered each of these factors to be present, except the last one. It said: “The scale and extent of your dishonesty in retrospectively altering clinical records both in order to conceal inadequate clinical practice and to mislead the NHS, does suggest a harmful deep-seated professional attitudinal problem which engages the question of erasure.”

148. The PCC considered the indicated factors in support of erasure at paragraph 6.34 of the ISG and identified the following factors to be present to varying degrees: “- serious departure(s) from the relevant professional standards; - serious dishonesty, particularly where persistent or covered up; - a persistent lack of insight into the seriousness of actions or their consequences.”

149. The PCC also recorded: “66. The Committee noted that ‘submitting fraudulent NHS claims’ and ‘falsifying and/or improperly amending patient records’ are among the factors indicated at paragraph 59 of the ISG as being examples of dishonesty in professional practice which are capable of being ‘highly damaging to the dental professional’s fitness to practise and to public confidence in the profession’.

67. The Committee also had regard to the over-arching objective set out under section 1 of the Dentists Act 1984 , namely: ‘(a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Act ; and (c) to promote and maintain proper professional standards and conduct for members of those professions.’ ”

150. It went on to say that it was not an easy decision for the PCC to make, and was one it had deliberated over at “ considerable length ”, and had been mindful of Mr Mobasseri’s extensive CPD records, testimonials and reflective statements. The PCC also accepted that the ISG was only guidance, and that erasure was “ not an inevitability but is rather a matter for the careful judgment of the Committee in the circumstances of any given case. ” However, the PCC determined that a period of suspension would be “ insufficient to mark the seriousness of [Mr Mobasseri’s] dishonesty and to meet the wider public interest ”, noting that he had abused the trust placed in him as a registered dentist, including that changes to the clinical records had been made in order “ to mislead the NHS as part of its monitoring process ” and that he dishonestly submitted inappropriate claims for treatment. It found that: “Such conduct is fundamentally incompatible with your remaining on the Register and being allowed to enjoy the benefits and privilege of professional registration as a dentist.”

151. As a result, having regard to all the circumstances, the PCC determined (in the terms I have already set out at paragraph 35 above) that no lesser sanction than erasure would be sufficient. The PCC therefore directed erasure of Mr Mobasseri’s name from the Register.

152. Given my decision on the dishonesty points, the determinations on the various counts are largely, but not precisely, the same as they were before the PCC when it came to consider sanction. In particular, I have found that the PCC was wrong to find that Mr Mobasseri had been dishonest in relation to the inappropriate claims for Patients B, C, D, F and K. However, in respect of all of the other charges, I have held that the PCC was right to come to the determinations that it did. Those included charges of dishonesty on Mr Mobasseri’s part going beyond what he had admitted, and including dishonestly seeking to mislead the NHS about his record-keeping and about the fact he had not undertaken BPEs with certain patients, and in making a dishonest claim for treatment. Whilst therefore the landscape when it comes to consideration of sanction is not exactly the same as it was before the PCC, much of it is.

153. In Mr Horne’s submissions in support of ground 7, seeking to challenge the ruling on sanction, Mr Mobasseri drew attention to the following matters: i) Section 1 (1ZA) of the Dentists Act 1984 provides that the overarching objective of the GDC in exercising its functions is the protection of the public. Section 1 (1ZB) further provides that that pursuit of that over-arching objective involves pursuit of the objectives of “(a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Act ; and (c) to promote and maintain proper professional standards and conduct for members of those professions.” ii) The PCC’s decision on appropriate sanction was an evaluative exercise and (as per Sastry (above)) is properly one to which the High Court could properly show less deference than to its findings of primary fact. iii) The Guidance for the Practice Committees including the Indicative Sanctions Guidance was important guidance, but nonetheless guidance only, the relevance and application of which will always depend on the precise circumstances of the particular case: see Bawa-Garba v General Medical Council [2019] 1 WLR 1929 at paragraph 83. iv) The Courts attach significant importance to the need for honesty and integrity of healthcare professionals: see Bakare v General Medical Council [2021] EWHC 3278 (Admin) Calver J at paragraphs 36 to 42 and General Medical Council v Donadio [2021] EWHC 562 (Admin) Rice Collins J at paragraph 52. However, if dishonesty is admitted or proven, it is not inevitable that erasure must follow.

154. Mr Horne also noted the PCC’s statement that it had not found it an easy decision to make, suggesting that was a reflection of the fact that it was not a straightforward or clear case of erasure on the findings that the PCC had made.

155. Mr Horne made a number of submissions on the (contingent) basis that I overturned the PCC’s determinations on one or more of grounds 1 to 3 and 5, which largely I have not done. He also made submissions irrespective of whether any of his other grounds succeeded. Mr Horne contended that the PCC had erred in finding that he displayed evidence of a harmful deep-seated professional attitudinal problem. In relation to this, Mr Horne recognised that that finding was based upon the scale and extent of his dishonesty that occurred over an extended period in 2020, though he noted this had not been repeated, and stated that it was not based upon his clinical failings, which the PCC had concluded were remediable. That much is correct, although it does not seem to me to grapple with the points made by the PCC in relation to its determination on sanction about Mr Mobasseri’s dishonesty, and what it had found was his attitudinal problem.

156. The point which Mr Horne did seek to press in relation to this was that the PCC had, he contended, “ failed to properly weigh important aspects of Mr Mobasseri’s stage 2 evidence, namely Mr Mobasseri’s participation and engagement in, and reflection on ethics courses, numerous testimonials which spoke of his honesty, and the professional opinion of Dr Hook, Medical Consultant Psychotherapist. ” However, the PCC made it clear that it had taken this material into account. The PCC recorded (at paragraph 34) receiving the material containing “ evidence of your reflections, remedial steps and [CPD] activity ”, as well as noting the “ numerous testimonials from patient and professional peers in support of your character and performance as a dentist. ” It had received evidence (including oral evidence) from Mr Mobasseri’s workplace supervisor, who it said (at paragraph 35 of its determination) “ spoke extremely highly of you both in terms of your clinical skill and performance and in terms of your professional attitude. He described you as a caring practitioner who puts his patients’ best interest first and who is fully committed to his remediation. ” The PCC expressly referred to and recognised his CPD activity and other reflection and remediation when considering impairment (e.g. at paragraphs 46 and 47). When considering sanction, it expressly identified a number of matters as going to mitigation, including Mr Mobasseri’s good conduct following the incidents, his substantial remediation action and changes he had made, as well as referring to the testimonials (in the terms I have referred to at paragraph 145 above). The PCC again referred to Mr Mobasseri’s “ extensive CPD records, testimonials and [his] reflective statements ” before making its ultimate decision on sanction. This was all taken into account in its reasoning and its decision-making.

157. I was asked to read Dr Hook’s report (which I have done). Mr Horne’s skeleton argument drew attention in particular to the following passage from that report: “Since his suspension and the therapeutic work he has undertaken alongside professional courses in ethics, professional values, honesty and probity he has gained a significant level of insight into these psychological processes and the path that has brought him to this point. In my opinion he has developed a good understanding of his basic attitudes and actions which have led to the charges against him. He acknowledges that he has been misleading and dishonest. I appreciate there are charges which he is contesting and on which the panel will rule which may shed further light on his level of insight. Notwithstanding it is my opinion that as a result of his self-reflection and engagement with outside agencies, professional and therapeutic, he has recovered an appropriate level of probity and his capacity to be honest with himself and act according to his ethical values of providing good quality and respectful clinical care.”

158. It is right to say that the PCC did not expressly refer to Dr Hook’s report in the determination. As I have already said, the PCC did make it clear that it had taken account of Mr Mobasseri’s “ CPD records, testimonials and [his] reflective statements ”, which appears to have been intended to be a summary of the material that Mr Mobasseri had submitted to it for the purposes of the Stage 2 determination, and that material included Dr Hook’s report. It seems to me that the PCC intended to include that in its description of that information of which it had been mindful.

159. In any event, even if the position was the PCC had not taken it into account, or properly weighed it in its considerations, it seems to me that if it had done so it would not have made a difference to the PCC’s ultimate determination. The passage from Dr Hook’s report on which particular emphasis was placed (which I have set out above) recites work Mr Mobasseri had done, saying he had gained a significant level of insight. Other such references were included in other places in Dr Hook’s report. That was in any event recognised by the PCC in its determination, in particular in its discussion relating to impairment.

160. Dr Hook stated in his report that there were indications that Mr Mobasseri had started a necessary and longer-term process to develop an emotional level of insight, though noting further work would be need to extend and embed the changes had had started to make. He also noted (in the passage quoted above) that Mr Mobasseri acknowledged he had been misleading and dishonest, although appreciating that there were charges that he was contesting which, said Dr Hook, may shed further light on his level of insight. The PCC in its decision also recognised Mr Mobasseri’s admissions, both in relation to (some of) the clinical failings, and some acts of dishonesty. But, as noted by Dr Hook, he did not admit other charges, both in relation to the clinical and the probity charges, and (as predicted by Dr Hook) the PCC did find that shed further light on his level of insight. The PCC noted, for example, Dr Mobasseri’s attitude in his evidence at the hearing towards carrying out BPEs, saying (at paragraph 48) that his evidence tended to be dismissive of the clinical importance and significance of BPE charting notwithstanding the CPD activity he had undertaken. It recorded (at paragraph 49) that Mr Mobasseri had provided no meaningful reflection on his failure to ensure that active dental disease was under control before commencing orthodontic treatment, and appeared to lack insight into that. It recognised (at paragraph 53) that he had shown some insight into his dishonesty in respect of altering the records, but had some way to go to full insight. More generally, the PCC’s findings of dishonesty against Mr Mobasseri (which I have largely upheld) went significantly beyond what he had admitted and acknowledged, and the PCC was not only entitled, but also in my view correct, to find that he did not have a full insight into his own dishonesty.

161. The final point made in the passage I have quoted from Dr Hook’s report above was to the effect that, as a result of his self-reflection and engagement with outside agencies, professional and therapeutic, Mr Mobasseri had “ recovered an appropriate level of probity and his capacity to be honest with himself and act according to his ethical values of providing good quality and respectful clinical care. ” However, that does not take things any further. First, it did not reflect what the PCC ultimately found about the scope of Mr Mobasseri’s failings, in particular the scope of his dishonesty, such that in light of those findings (and Mr Mobasseri’s position in relation to them at the hearing) it is difficult to see how (at least at the time that Dr Hook had seen him) he could be said to have reached an appropriate capacity to be honest with himself about his failings. Second, even if he could be said to act according to his ethical values of providing good quality and respectful clinical care, that does not address the probity points, in particular where he had been found to be dishonest beyond his own admissions. Saying he would act according to his own ethical values in those circumstances assumes that those are appropriate which rather begs the question. Moreover, providing “ good quality and respectful clinical care ” is not the point on which the decision on sanction turned, and does not address the question of probity, which when it came to the sanction of erasure was key.

162. Accordingly, the fact that the PCC did not expressly deal with Dr Hook’s report makes no difference to the outcome.

163. In short, there is no defect at all with the PCC’s decision-making in relation to sanction. Mr Mobasseri’s criticisms in this respect are rejected.

164. Of course, as I have already recognised, the PCC was starting, when it came to sanction, from a different point than I have found it should have done. The PCC was taking into account not only the dishonesty that was admitted and the dishonesty I have upheld on this appeal, but also the dishonesty in respect of the ground 5(i) and (ii) conduct which I have not upheld. To that extent, the decision on sanction needs in any event to be re-examined. However, I do not consider that the removal of the dishonesty finding in respect of those charges makes any difference to the analysis carried out by the PCC in respect of sanction. All of the points made by the PCC still hold good, even in light of those aspects of its decision that I have overturned. Mr Mobasseri was dishonest, not only to the extent he admitted, but also beyond that, including in relation to falsifying his documentation to record BPEs that he never undertook (and to mislead a reader into believing he had undertaken them), and in relation to making a claim for treatment dishonestly.

165. The fact that the PCC recorded that it had not found the decision on sanction an easy one to make, and had deliberated over it at considerable length does not suggest weakness in its decision, or that removing the findings of dishonesty on the ground 5(i) and (ii) conduct means it should be reversed. The decision that the PCC reached was a clear one, supported by a proper analysis of the conduct as well as the factors that Mr Mobasseri had sought to be taken into account. As I have said, removal of the findings of dishonesty on the ground 5(i) and (ii) conduct does not disturb the analysis the PCC undertook.

166. In any event, the decision reached by the PCC was the correct one, not only on its findings, but also on the findings as they stand after this appeal (in other words, removing the PCC’s findings regarding dishonesty in the ground 5(i) and (ii) conduct). In light of what I have already said, I will summarise the main points in that regard: i) Mr Mobasseri did not contest a finding of misconduct or of impairment before the PCC. Nor did he seek to challenge that on appeal. Moreover, as recorded above, he admitted a number of charges of dishonesty. In addition, the PCC found (and I have upheld) a number of further charges of dishonesty. ii) His conduct included dishonestly altering (retrospectively) numerous patient records, including to mislead the NHS as part of its monitoring process; and dishonestly submitting an inappropriate claim for treatment to the NHS. As noted by the PCC, “ These were not minor changes. As acknowledged by Mr Mobasseri on this appeal in relation to the charge 4 alterations, they “ consisted of adding and (in some cases) altering and deleting significant detail, were not minor or editorial, but provided substantially more clinical detail than had originally been recorded. ” whilst the sums involved were modest, the principle involved remains the same: [Mr Mobasseri] abused the trust which the NHS placed in [him] as a registered dentist when claiming from the public purse. ” iii) There was, rightly, no criticism of the way in which the PCC approached its decision on sanction in terms of structure or in its references to the ISG. The PCC did so by following the guidance set out in the ISG. Although the ISG is only guidance (as the PCC recognised), and its relevance and application will always depend on the precise circumstances of the particular case, it nonetheless contains useful guidelines. Mr Mobasseri did not contend that the PCC failed in relation to its application of the guidance or that a wrong approach was taken under it. iv) There was no challenge on appeal to the matters which the PCC listed as “aggravating factors” as I have quoted them at paragraph 144 above. Those points, as explained in various places in the PCC’s determination, were all well made (although, in light of my decision, recognising the dishonesty did not extend quite as far as the PCC had found). v) It is right that Mr Mobasseri had undertaken substantial remediation, and was able to rely on numerous testimonials in support of his character and his performance as a dentist, as well as the other factors listed in mitigation by the PCC (listed and referred to at paragraphs 144 and 145 above). Those are all factors that the PCC took into account, as have I, in assessing the appropriate sanction. However, despite the remediation he had undertaken (which, as the records set out, was considerable) he nonetheless lacked insight into aspects of his conduct, as referred to by the PCC. I have dealt above with the central challenge to the PCC’s decision on sanction (relating to the alleged failure to properly weigh Mr Mobasseri’s stage 2 evidence, including the evidence of Dr Hook), and explained why that challenge fails. vi) In considering whether the sanction of suspension was sufficient, the PCC was not only entitled but also, in light of its findings throughout its decision, in my view correct to find that : “The scale and extent of your dishonesty in retrospectively altering clinical records both in order to conceal inadequate clinical practice and to mislead the NHS, does suggest a harmful deep-seated professional attitudinal problem which engages the question of erasure.” vii) The PCC also noted that paragraph 59 of Appendix A to the ISG identifies “ submitting fraudulent NHS claims ” and “ falsifying and/or improperly amending patient records ” as examples of dishonesty in professional practice which are capable of being “ highly damaging to the dental professional’s fitness to practise and to public confidence in the profession ”. Although, in light of my decision, there was only one dishonestly submitted NHS claim, as the PCC noted it is the principle that matters as much as the quantity or amount. Moreover, the falsification and improper amendment of patient records was not on a small scale, and was done with dishonest intent not only to cover up the lack of record keeping but also to cover up the fact Mr Mobasseri had not undertaken BPEs and also to support the false claim for Patient I. viii) Paragraph 6.34 of the ISG states: “ Erasure will be appropriate when the behaviour is fundamentally incompatible with being a dental professional ” and lists a number of factors, any one of which (or combination of them) it says may point to such a conclusion. The PCC rightly identified the following factors as present in this case: a) “ serious departure(s) from the relevant professional standards. ” b) “ serious dishonesty, particularly where persistent or covered up. ” c) “ a persistent lack of insight into the seriousness of actions or their consequences. ” ix) Moreover, paragraph 62 of Appendix A to the ISG guidance states: “It is a matter for the Committee to determine where on the spectrum of seriousness the Registrant’s dishonesty lies. However, dishonesty that is persistent and/or covered up, is likely to result in erasure.” x) The PCC also properly had regard to the over-arching objective set out under section 1 of the Dentists Act 1984 , namely: “(a) to protect, promote and maintain the health, safety and well-being of the public; (b) to promote and maintain public confidence in the professions regulated under this Act ; and (c) to promote and maintain proper professional standards and conduct for members of those professions.” xi) The ISG Guidance is only guidance, the relevance and application of which will always depend on the precise circumstances of the particular case. The sanction of erasure does not follow inevitably from an admission or a finding of dishonesty. However, it is guidance to be taken into account, as the PCC did, and as I have done in assessing Mr Mobasseri’s conduct and, in particular, in considering whether a period of suspension would be sufficient or whether the sanction of erasure is necessary. xii) Taking the above into account, as well as all the findings of the PCC (with the exception of those that I have overturned relating to the dishonesty on the ground 5(i) and (ii) conduct), it appears to me that the PCC was not only entitled, but also right, to determine that a period of suspension would be insufficient to mark the seriousness of Mr Mobasseri’s dishonesty and to meet the wider public interest. The following summing up given by the PCC was entirely justified (save that, as a result of my decision on this appeal there was only one claim for treatment dishonestly submitted): “You abused the trust placed in you as a registered dentist to repeatedly falsify the clinical records for numerous patients in order to dishonestly give the impression that substantially more clinical information had been recorded than appears in the contemporaneous notes. In respect of 14 patients, these retrospective alterations were done to mislead the NHS as part of its monitoring processes. You also abused the trust placed in you as a registered dentist by dishonestly submitting inappropriate claims for treatment. Such conduct is fundamentally incompatible with your remaining on the Register and being allowed to enjoy the benefits and privilege of professional registration as a dentist.” xiii) I should add that, given the dishonesty shown by Mr Mobasseri in the alteration of his clinical records, not only to dishonestly give the impression that substantially more clinical information had been recorded than appears on the contemporaneous notes, but also to dishonestly cover-up the fact that he had not undertaken BPEs on the identified occasions, and also (in respect of 14 patients) to deliberately mislead the NHS as part of its monitoring process, it seems to me that the sanction of erasure would have been justified even if none of the dishonesty in respect of the ground 5 conduct had been made out. No lesser sanction than erasure would have been, or was, sufficient to meet the over-arching objective of promoting and maintaining public confidence in the dental profession and of promoting and maintaining proper professional standards and conduct for members of that profession.

167. As a result, the sanction imposed by the PCC was not wrong. It was justified and, in my view, was the correct sanction, not only on the PCC’s findings but also on the findings as they stand after my decision on the other grounds of appeal. The sanction of erasure was, and is, appropriate and necessary in the public interest. It cannot be said that it was or is excessive or disproportionate in the circumstances of this case.

168. Mr Horne also referred to the period of interim suspension that Mr Mobasseri has already served (between 7 December 2021 and 19 September 2023), but only suggested that might have an impact on the period of suspension order, if that were the sanction I had found to have been appropriate. It was not suggested that it had any impact if I found the sanction of erasure to have been appropriate (as I have). I therefore say no more about the effect of the period of interim suspension.

169. The PCC was right to determine that the sanction of erasure was appropriate (even in light of my setting aside of its findings of dishonesty in respect of the ground 5(i) and (ii) conduct). Ground 7 of the appeal therefore fails. Conclusion

170. For the reasons I have set out above: i) I allow the appeal in respect of grounds 5(i) and 5(ii) and (so far as it applies to the conduct underlying ground 5(i)) ground 3. I therefore set aside the findings of the PCC that Mr Mobasseri was dishonest in respect of the inappropriate and misleading claims for treatment in respect of Patients B, C, D, F and K. ii) Otherwise the appeal is dismissed. The sanction that Mr Mobasseri’s name be erased from the Register stands.