Monibi v General Dental Council

On an appeal from a professional disciplinary tribunal, the court undertakes a rehearing but gives appropriate weight to the tribunal’s expertise and assessment of live evidence. Findings of primary fact should be disturbed only where material error makes them plainly wrong. A tribunal should assess evidence globally and give adequate reasons, but an imperfect approach does not itself invalidate the decision. Dishonesty in altering clinical records requires proof that the registrant appreciated that the alteration changed an accurate record into an inaccurate one. A change made in the genuine belief that it corrected a factual error is not dishonest merely because it favours the registrant’s position.

The appellant, a dentist, challenged findings by the Professional Conduct Committee of the General Dental Council arising from his treatment of Patient A. The Committee found failures concerning informed consent, the proposed implant position and record keeping. It also found that two alterations to clinical notes were dishonest and suspended the appellant’s registration for four months.

The appeal concerned whether the factual findings were wrong and whether the dishonesty finding and consequential sanction could stand. The central issue was whether the Committee had properly assessed the evidence and established the appellant’s state of mind when altering the records.

1. Appellate approach. An appeal under s.29 of the Dentists Act 1984 is by way of rehearing and review. The court may dismiss, quash, substitute or remit the decision. It should respect the specialist tribunal’s expertise and its advantage in hearing live witnesses. Findings of primary fact, particularly credibility findings, should be accepted unless material error shows that they are plainly wrong. Greater scrutiny is appropriate where the issue involves judgment outside the tribunal’s professional expertise.
2. Assessment and reasons. The Committee had failed generally to assess the evidence globally, instead considering appointments as largely isolated events. Its reasons also failed to address significant inconsistencies in Patient A’s evidence and important evidence concerning the timing of the alterations. That was a significant weakness, but it did not by itself require the findings to be set aside. On rehearing, the court assessed the evidence as a whole.
3. Core factual findings. The findings that the appellant had discussed placing the implant towards the front of the gap on 21 September 2007, that the parties were at cross-purposes on 5 October 2007, and that he genuinely believed the LL7 site was the agreed site were not shown to be wrong. The challenges to heads 4(d), 5(a) and 6(c)(i) therefore failed. The appellant remained responsible for ensuring that the treatment proposal, consent and record accurately reflected the patient’s understanding.
4. Dishonesty. The Committee was wrong to find that the notes had been altered shortly after the 18 April 2008 telephone call. The evidence showed that the alterations were made on or after 16 May 2008 and before about March 2009. The Committee’s finding that the 11 January alteration was dishonest was inconsistent with its finding that the appellant genuinely believed LL7 was the agreed treatment site. The 21 September alteration also could not support dishonesty without a finding that he knew the original note was accurate and that the alteration made it inaccurate. No such finding had been made, and the court would not infer it.
5. Disposition. The appeal succeeded on head 8(b). The finding of dishonesty was quashed. Since the four-month suspension depended on that finding, the sanction was also quashed.

• Professional Conduct Committee of the General Dental Council: found heads 4(d), 5(a), 6(c)(i) and 8(b) proved, found the appellant’s fitness to practise impaired by misconduct, and suspended his registration for four months.
• High Court (Administrative Court): rejected the challenges to heads 4(d), 5(a) and 6(c)(i), allowed the challenge to head 8(b), and quashed the suspension.