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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Monibi v General Dental Council [2014] EWHC 1911 (Admin) (18 June 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1911.html Cite as: [2014] EWHC 1911 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/06/2014

Mr Justice Stuart-Smith:

Introduction

1. Between 2007 and 2009 the Appellant, Mr Monibi, provided dental services to a patient known as Patient A in the course of which he extracted her Lower Left 7 tooth ["LL7"] and fixed an implant and crown in the position from which the tooth had been extracted. Patient A was dissatisfied with her treatment. The matter was referred to the Respondent GDC which instituted disciplinary proceedings. After a hearing lasting 12 days spread over three sessions in July 2013, November 2013 and January 2014 the Professional Conduct Committee of the GDC determined that key facts alleged against Mr Monibi were proved, including an allegation that he had dishonestly altered entries in his notes for Patient A. On the back of those findings, the PCC determined that his actions amounted to misconduct and that his dishonesty impaired his fitness to practice. It directed that his registration be suspended for four months.
2. Mr Monibi now appeals against that determination on the grounds that the findings of fact made by the PCC were wrong and that the suspension, which is contingent upon the finding of dishonesty, should be set aside.

The Charge Brought Against Mr Monibi

3. The basis for the proceedings before the PCC, by reference to which it made its findings, is the Charge. Mr Monibi made admissions in relation to some of the facts alleged, which were accordingly found proved by the PCC. Other allegations were considered by the PCC and either found proved or not proved. The terms of the Charge in its final form are set out at Annexe A, annotated to show which matters were admitted and proved ("A+P"), found proved ("P") or found not proved ("NP").

The Legal Framework and the Principles to be Applied

4. The framework provided by the Dentists Act 1984 and the applicable legal principles are not materially in dispute.
5. The GDC has a statutory duty by s.1(2) of the 1984 Act to promote high standards of professional conduct among dentists. By s.33(2) and Schedule 3 paragraph 2(1)(a) of the 1984 Act, the GDC shall make rules as to the procedure to be followed and rules of evidence to be observed in proceedings before the PCC. The current rules are The General Dental Council (Fitness to Practise) Rules Order of Council 2006/1663.
6. By s.27B(6) of the 1984 Act, as amended, the PCC may erase a dentist's name from the register or suspend his registration for up to 12 months if they find his fitness to practise is impaired by reason of, amongst other things, misconduct. By s.29(1)(B) of the 1984 Act a dentist may appeal such a decision within 28 days of the notification of the action taken.
7. The recent case of Wasu v GDC [2013] EWHC 3782 (Admin) at [16]-[18] helpfully summarises the law, the appellate jurisdiction and the relevant approach:

"16. The approach to an appeal pursuant to s.29 of the Dentists Act 1984 can be summarised as follows:

(1) An appeal pursuant to s.29 of the Dentists Act 1984 is by way of rehearing (CPR Part 52, PD 22.3).

(2) The Court has the power

(a) to dismiss the appeal,

(b) to allow the appeal and quash the decision appealed against,

(c) to substitute for the decision appealed against any other decision which could have been made by the Professional Conduct Committee or

(d) to remit the case to the Professional Conduct Committee to dispose of the case in accordance with the directions of the court (Dentist Act 1984, s.29(3)).

(3) The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity, in the proceedings before the lower tribunal (CPR Part 52.11).

17. The general principles applicable to an appeal against a decision of professional Disciplinary Committee of this sort can be summarised as follows:

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

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

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

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

(5) Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair. (See the helpful summary of the authorities by Langstaff J in Bhatt v GDC [2011] EWHC 783 (Admin), in particular at para. [9]).

18. As regards a challenge to the sanction imposed, the Court will normally accord even more respect to the tribunal of first instance (Raschid & Fatani v GDC [2007] EWCA Civ 46, at para. [19])".

8. Thus on an appeal the question for the Court is whether the decision of the PCC was "wrong" – CPR Part 52.11(3). This involves a rehearing amounting to a review of the material and evidence before the Panel. As findings of fact concern judgements about the reliability and truthfulness of witnesses who gave evidence before it, those findings should be accepted unless material errors are shown.
9. The burden upon an appellant, and the standard to be applied by the appellate court, is clearly set out in the judgment of Leveson LJ in Southall v General Medical Council [2010] 2 FCR 77 at [47]:

"… findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370 ); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it "can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread" (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R (Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ)."

10. Before the PCC the burden of proof rested on the GDC throughout and the relevant standard of proof was the civil standard, namely the balance of probabilities. The Committee was given a full advice in open session by the Legal Assessor on how to approach the allegations of dishonesty^[1] in the course of which he identified the two-stage test derived from Ghosh v The General Medical Council [2001] 1 WLR 1915 and the need to factor in, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the Committee concludes that the allegation is established on the balance of probabilities. No criticism is made of that direction: nor could there be.
11. The GDC's published Guidance for the Professional Conduct Committee emphasises the need for the Committee to explain its decisions at [43]-[45]. The guidance includes the following:

"[43] Whatever the PCC decides to do in a case, it must explain its reasons. This will help show that all relevant issues have been addressed. … [44] The registrant … [has] the right to appeal against a decision of the PCC, so a clear explanation will help them decide whether to exercise that right, and will help the Court which has to consider any appeal. [45] It is therefore very important to give a comprehensive explanation of every decision made, … . The explanation should always cover; … conclusions on the main submissions made by the parties or their representatives; [and] a demonstration that each outcome has been considered and the reasons for the chosen outcome. Reasons should be given in sufficient detail so that interested parties may understand why a determination has been made; …"

12. This guidance appears consistent with general principles on the need for a tribunal or decision maker to provide adequate reasons, as outlined at [35-37] of South Bucks DC v Porter [2004] UKHL 33. I bear in mind at all times that the decision of the PCC should be read constructively with a view to identifying the logic that was intended to underpin it.
13. Mr Haycroft recognises that if the findings of fact (including the finding of dishonesty) made by the PCC are to be assailed, they must be shown to be wrong. He also recognises that a witness may be unreliable in respect of parts of his or her evidence but to be accepted as reliable in respect of other parts. The burden Mr Haycroft undertakes is therefore a difficult one, since the findings of fact made by the PCC were in large measure based upon the conclusion that it preferred the account of Patient A and other witnesses called by the GDC to the evidence of Mr Monibi and other evidence on which he relied.

The Background Facts

14. Patient A was referred to Mr Monibi by her general dentist because he specialises in prosthodontics, which is the replacement of missing teeth, typically by the use of implants. The process of restoration using implants has two stages. The first is the placing of a metal post into the jaw; the second is the placing of a replacement false tooth anchored on the metal post.
15. Patient A had lost one tooth in the lower left quadrant of her jaw many years previously: that was LL6 and by 2007 movement of surrounding teeth meant that the loss of LL6 had left a gap of about 3mm between LL5 and LL7. She was referred to Mr Monibi because LL7, which was the tooth adjacent to her existing gap but further from the front of her mouth, was compromised and needed to be extracted. The combined loss of LL6 and LL7 would leave a more obvious gap. It would also leave a choice to be made about where the implant should be placed. It was common ground that, although the implant could properly be placed in the space previously occupied by LL6 or that previously occupied by LL7, placing it nearer the front of the mouth in the space previously occupied by LL6 would make any residual gap less noticeable.
16. In the event, Mr Monibi placed it in the space previously occupied by LL7. His treatment of Patient A involved 15 separate visits by her to his practice between September 2007 and February 2009. In briefest outline:

i) Patient A said (and the GDC's case therefore was) that Mr Monibi told her that although he was extracting LL7 he would place the implant in the site of the old LL6 tooth, and that he would place a single restoration (i.e. a single tooth) on top of it. Once the implant had been placed she found that it was further back in the mouth. She and her husband pointed that out to Mr Monibi and she was then surprised to hear him say that it was not a problem and there would be a larger restoration (i.e. a larger tooth) placed on top of the implant. A larger restoration was fitted and she then suffered problems with it.

ii) Mr Monibi's case was that he never spoke of LL6 as being the site of the implant. He claimed that he had always proposed and planned for treatment to be the extraction of LL7 and the placing of the implant at the LL7 site, with a single restoration on top of it. He said that after the implant was placed Patient A changed the treatment plan – not as to the location of the implant (since it was by then already in situ) but rather, because contrary to the original plan (a single restoration) she decided she wanted the entire gap LL5-LL8 closed. He thus compromised his original treatment plan by providing a larger restoration to fill the gap.

17. This factual dispute formed the basis of the allegations in the Charge that Mr Monibi had failed adequately explained the position of the implant and/or restoration he proposed to place [Head 4(d)], had placed an inadequate implant and restoration because the location did not correspond adequately or at all to the location he had proposed [Head 5(a)], and that he had not made any or any adequate record of Patient A's complaint/aspirations regarding the space distal to LL5 (i.e. the LL6 space) [Head 6(c)(i)]. The PCC found each of these heads of charge proved.
18. Against that clinical background the finding of dishonesty in relation to Head 7 arose because Mr Monibi altered five references in his patient notes for 21 September 2007, 5 October 2007 and 11 January 2008 to read "LL7" where previously they had said "LL6" or, in one case "LL3". He admitted altering the entries but denied that what he did was misleading or dishonest, his case being that he was amending or clarifying his notes so that they became accurate and clear. He had also amended a sixth entry, for 16 May 2008, in the same way, but this was not included in the Charge and so was not alleged to be either misleading or dishonest. The PCC concluded that his conduct in making the first five alterations was misleading because he did not make clear when or for what purpose the amendments were made. Then, despite concluding that four of the alterations (two on 21 September 2007 and one each on 5 October 2007 and 16 May 2008) were to correct factual inaccuracies in the notes as originally drawn and were made without dishonesty, the PCC concluded that the other two (one on 21 September 2007, which noted the space in which the implant was to be located; and one on 11 January 2008, which recorded informed consent) had been dishonestly altered as a result of a phone call to Mr Monibi by Patient A's husband ["Mr A"], which was found to have taken place on 18 April 2008 in the course of which the positioning of the implant was first questioned [Head 8(b)].
19. Mr Monibi's notes were transcribed. The most material sections are set out at Annexe B, with some annotations to explain what Mr Monibi's shorthand represented. It is important to bear in mind at all times that the Committee had and saw the original notes (as did the Court on this appeal), a point to which I will return later. Two other preliminary points on the evidence are also important. First, although most or all of the evidence was given by reference to "LL6" and "LL7", Patient A accepted that Mr Monibi did not use those terms in his conversations with her in his consultation room and that (although she and her husband both gave evidence elsewhere that Mr Monibi had used the term LL6 to his receptionist outside the consultation room on 21 September 2007) she first heard them much later, when obtaining advice on a possible claim. So when, for example, she said that she gave informed consent to an implant at "LL6", it did not mean that the term "LL6" had been used: the conversation would have been in more general (lay) terms. The precise detail of the language used was not identified in evidence or found as a fact by the Committee. Second, the GDC's expert accepted that, because the LL7 tooth had drifted mesially (i.e. towards the front of the mouth) and had tilted, so that it occupied part of the position previously occupied by the LL6 tooth, any implant was going to go where the LL7 tooth was extracted from: it just depended whereabouts it would be – towards the front or towards the back of the space occupied by the LL7 tooth before extraction. The expert went so far as to say that "I think using 6 and 7 in this case is not helpful. It is better to say … you are placing an implant to allow a crown to be placed next to the 5 or next to the 8", which would indicate whether the crown would be towards the front or the back of the gap. As set out below, the Committee found that the gap between LL5 and LL8 following extraction of the LL7, could properly be described as either the LL6 area or the LL7 area. For these two reasons there is a significant danger of spurious precision and dangerous confusion in the terms "LL6" or "LL7" when referring to what was proposed by or agreed between Patient A and Mr Monibi, or even when interpreting Mr Monibi's notes.
20. To place the appeal in its proper context it is necessary to look closely at the findings of the Committee and at some of the evidence upon which the Committee relied. The Committee's determination was long (19 pages) and, in many respects, detailed. It requires and repays careful reading to see the structure and reasoning adopted and expressed by the Committee. I do not set it all out in this judgment, but certain features may conveniently be highlighted at this stage:

i) The Committee recorded the central allegation against Mr Monibi as being: "you proposed a treatment plan, to which Patient A consented, to place an implant in the site of the LL6 tooth …. You subsequently placed an implant further back in Patient A's mouth, in the site of the extracted LL7 tooth. It is alleged you then altered Patient A's notes so that references to "LL6" and/or other teeth in the lower left quadrant appeared to read "LL7". The GDC alleges that your conduct in altering Patient A's records was misleading and dishonest in that your intention was to give the impression that the treatment proposed and/or provided had been in relation to the site of the LL7 rather than the site of the LL6." This makes plain that it was being alleged that, when he altered the notes he was conscious of the fact that he had proposed to place the implant at the site of the LL6 and not the LL7.

ii) Having identified the central allegation, the Committee then turned to make findings of fact. Before turning to the specific heads of charge, the Committee considered the chronology of appointments between Mr Monibi and Patient A "in order to be able to view the heads of charge and the evidence relating to them in their correct context." To that end "the Committee examined each appointment in turn and decided, on the balance of probabilities, whether it preferred your account of that appointment or the account of Patient A." It then did so and made sequential findings of fact in relation to each appointment, as it had said it would. The Committee did not at any stage stand back and take an overview of the evidence as a whole or how evidence relating to later parts of the chronology might impact on evidence of the earlier parts. In particular, it did not examine one central plank of Mr Monibi's case, which was that Patient A's evidence as a whole was so riddled with errors that it could not be relied upon in relation to the central allegations against him.

iii) The first appointment took place on 21 September 2007. The Committee rehearsed the conflicting evidence given by Patient A, Mr A and Mr Monibi about what had happened on that date and concluded that it preferred the evidence of Patient A to that of Mr Monibi. Its reasons for doing so were stated to be^[2] that the Committee considered Patient A to be an honest and credible witness; that her account of the meeting on 21 September 2007 was unwavering; that Mr Monibi's record, before its alteration, set out a clear treatment plan to extract her LL7 tooth and to place an implant at the LL6 site, which it regarded as inconsistent with his account that no treatment plan was formulated until the subsequent appointment on 5 October 2007; that it preferred Patient A's account that she had tears in her eyes but was not sobbing to Mr Monibi's account that it was the most traumatic appointment he had ever had; and that Patient A and her husband both recalled "in convincing detail the terms of a joke that Patient A's husband had made about "LL6" referring to the latest model of Audi car. The Committee rejected Patient A's evidence that she had been given appointment cards for two subsequent appointments (5 October 2007 and 11 January 2008) on her first attendance, but did not consider that error in her recollection to be material. Accordingly the Committee determined that:

"on 21 September 2007, you specifically proposed a treatment plan, which involved the extraction of Patient A's LL7 tooth and the placement of an implant in the LL6 area, adjacent to the LL5 tooth. This is consistent both with your original, unaltered record of that appointment and with the recollection of Patient A."^[3]

iv) The second appointment took place on 5 October 2007. The committee accepted the evidence of Patient A and her husband that Mr A was not present at the appointment. Having set out the conflicting evidence of Mr Monibi (who said he had always intended to place the implant at the site of the extracted LL7 so that there would be a gap in front of it) and Patient A (who said that she had always understood that the implant would be at the site of the previously extracted tooth) it gave its conclusions in a passage which is of prime relevance for this appeal:

"The Committee considers that you and Patient A were talking at cross purposes at this appointment. The Committee considers that Patient A honestly believed that the discussions on this date related to placement of the implant at the LL6 site. The Committee also accepts your evidence that on the date of this review you concluded that the LL7 site was the appropriate site for implant treatment, and that from that date forward, the Committee finds that you genuinely believed LL7 to be the agreed treatment site. Both expert witnesses agreed that the gap between the LL5 and LL8, following extraction of the LL7, could properly be described as either the LL6 area or the LL7 area." [Emphasis added].

In the next paragraph the Committee found (and Mr Monibi did not dispute) that on this occasion Patient A was given an appointment card which referred to the treatment proposed for 11 January 2008 as being "LL6 implant". It did not comment on whether this should be taken as being specific to the site of the previously extracted LL6 tooth or a more general reference to the gap between LL5 and LL8.

v) The Committee dealt very shortly with the next appointment (11 January 2008), recording the fact of Mr Monibi's entry in his records that he had "obtained [Patient A's] informed consent to an implant" and that the entry had originally read "implant LL6 area" but that he admitted having subsequently amended to reference to read "LL7 area"^[4]. The Committee found that Mr Monibi placed an implant "at the site of Patient A's extracted LL7" and accepted his evidence that the incision he made "covered the entire span of the area between the LL5 and the LL8 space." In doing so they rejected Patient A's evidence that the incision had been at the back of the gap. The Committee did not mention the fact of rejecting Patient A's evidence on this point and gave no assessment of whether the rejection was material.

vi) It is not necessary to dwell on the determination of facts about the appointment on 25 January 2008. There was, however, a marked conflict of evidence about the appointment on 18 April 2008. Mr Monibi said that Patient A said she now wanted the entire gap closed (as recorded in his note) during the appointment. Patient A said that she didn't look at the position of the healing abutment during the appointment; that she had first looked at it when she got into her car after the appointment; that she was immediately upset; and that she got her husband to ring the practice when she got home. No specific findings were made by the Committee about what was said in the course of the telephone call. It concluded that Mr Monibi's note was made after that telephone call and rejected Mr Monibi's evidence about what happened at the appointment, finding it implausible that he would not have gone on to discuss what was now being proposed, its risks and benefits: his evidence was that no such discussion took place.

vii) The Committee found that on 30 April 2008 Mr Monibi fitted a restoration to the implant, as recorded in his note. It also stated that "You have recorded in Patient A's records that she was "very happy". You also made a note to review Patient A again in three weeks" without making any finding about whether or to what extent those records were accurate or inaccurate. It is to be noted that it was neither alleged nor put to Mr Monibi that the "very happy" entry was dishonest.

viii) In the event, Patient A returned on 7 May 2008 as an emergency patient, reporting food packing in the gap mesial to the restoration. The Committee accepted Mr Monibi's evidence that he removed the restoration in order for it to be modified with additional porcelain. The modified restoration was fitted on 16 May 2008. This was the last appointment with a note that had been altered, the alteration being from "LL" to "LL7". There was evidence that "LL" could simply mean "Lower Left Quadrant" which would not have been inaccurate, though a reference to "LL7" was more specific and was accurate.

ix) The only other appointment that requires specific mention was on 1 August 2008. Its main importance lies in the rejection of the evidence of both Patient A and Mr A that they had hand delivered a letter of complaint to Mr Monibi the day before. Patient A also said that on 1 August 2008 she discussed the letter with Mr Monibi and that he said "Very nice letter. What would you like to have done in an ideal world?" Despite the fact that there were two versions of the letter disclosed by the GDC, one of which was dated 31 July and the other 31 July 2008, the Committee found that the letter was not received by Mr Monibi at that time and that "it was more likely that the complaint was sent in March 2009 than July 2008. The complaint letter of March 2009 was not produced at this hearing." The implication of the last sentence is that the two "31 July" letters either were not or may not have been the same as the complaint letter delivered in March 2009. The second, and more fundamental, implication is that Patient A's detailed evidence about her conversation with Mr Monibi on 1 August 2008 must have been wrong.

x) Having set out the chronology and its findings of fact, the Committee turned to the various allegations in the Charge. In the course of doing so it made a number of statements that are material to this appeal:

a) The Committee accepted that Mr Monibi gave adequate consideration to treatment options, which could include leaving a gap with no further treatment, placing an implant at either the LL6 or the LL7 site, placing an implant at the midway point, or placing two implants, one at the LL6 and one at the LL7 site^[5];

b) The Committee said that the location in which the implant and restoration were ultimately placed did not correspond to the location Mr Monibi had proposed because it had found that on 21 September 2007 he had informed Patient A that he proposed placing the implant at the LL6 site.^[6]

c) In relation to the appointment on 5 October 2007 and 11 January 2008 the Committee rejected the allegation that Mr Monibi's notes for 11 January were inadequate (when read in conjunction with the note made by his Dental Nurse) and, in the course of explaining its reasons for that finding, said that there was no real inconsistency between his notes (whether in their original form or as amended) and those of the Dental Nurse, who referred to the implant being in the region of LL6 because "the space between the LL5 and LL8 could properly be described as the LL6 or LL7 area". The Committee also said:

"The Committee accepts that on the day of surgery on 11 January 2008, it was your intention to place an implant at the site of LL7. That had been your intention since the review appointment on 5 October 2007 as was recorded in your note of that date. By this stage there was a fundamental misunderstanding between you and Patient A, who still understood that the implant was going to be placed at the site of LL6.

The Committee considers that placement of the implant at the LL7 site was not a surgical error. You considered this site to be the most appropriate location for the implant, but had failed to explain this to Patient A in a way that she understood."^[7]

and

"On 5 October 2007, you recorded in Patient A's clinical note that she was happy to leave a gap and that you intended to place an implant in the LL7 area of her mouth so that the gap would be mesial to the implant and restoration. The Committee has found that you and Patient A were talking at cross purposes during this consultation. Patient A's aspiration was to leave the gap further back in her mouth. Accordingly, you failed to make an adequate record of her aspirations on that date."

21. The Committee's finding and reasons on dishonesty require to be read in full and are reproduced at Annexe C. The following points emerge:

i) The Committee considered all six alterations to the notes without discriminating between the five that were the subject of the Charge of dishonesty and the sixth that was not. Four of the amendments (including that for 16 May 2008) were described as "uncontroversial" and Mr Monibi was acquitted of dishonesty in relation to them.

ii) The Committee's treatment of the four uncontroversial amendments is important. The Committee first held that the original records had been factually incorrect: the first entry on 21 September 2007 had mis-recorded the terms of the letter of referral from Patient A's general dentist who had referred expressly to LL7; the third entry originally recorded that Mr Monibi had extracted LL6 when he had in fact extracted LL7; the entry for 5 October 2007 was inaccurate because there was no space mesial to LL3; and "the original note [for 16 May 2008] as to the position of the restoration made no sense as written."^[8] Later, the Committee noted (correctly) that, even as amended, the note on 5 October 2007 made no sense as the amended reference to LL7 ought to have read LL8.^[9]

iii) A number of obvious questions arising from the uncontroversial amendments were not addressed in the determination, including the following:

a) What significance, if any, should be attached to the fact that the first and third entries for 21 September 2007 were found to be uncontroversial and not dishonest?

b) What significance, if any, should be attached to the fact that Mr Monibi had made such basic errors as were shown to have happened twice on 21 September 2007, once on 5 October 2007 and once again on 16 May 2008?

c) What significance, if any, should be attached to the fact that the amended note on 5 October 2007 was still incorrect?

iv) These questions were important, not least because of the Committee's finding that the amendments were made in a "casual manner" and were taken "on the spur of the moment rather than being a calculated act."^[10] Having seen the original notes, I endorse the Committee's use of the word "casual". The alterations are immediately apparent to anyone reading the notes and it is evident that no attempt at all has been made to conceal the fact of the alterations or to deceive a reader about what has been done: they appear in every sense to have been made in a casual manner.

v) Having found that the changes were made "shortly after the call" on 18 April 2008 (which to my mind suggests either later that day or within a few days thereafter), the Committee gave no consideration to the fact that the entry for 16 May 2008 had also been altered. In particular, it did not address the question whether that entry was made (and altered) after the alterations to the earlier entries and, if so, what the significance of Mr Monibi making yet another mistake and alteration might be for the issue of dishonesty.

vi) When the Committee addressed the two controversial amendments^[11], it concluded (in line with its earlier findings of fact) that the second entry for 21 September 2007 was originally accurate so that the effect of the amendment was to render it inaccurate. In doing so, it repeated the finding that "by the 5 October 2007 your plan was to implant at the LL7 site, whereas Patient A still continued to believe that the implant was to be at the LL6 site." It then referred back to its finding that from 5 October 2007 Mr Monibi genuinely believed LL7 to be the agreed treatment site^[12] saying that the alteration to the record of 11 January 2008 was "consistent with your understanding on that day as to the intended implant site." This appears to be an acceptance that, from Mr Monibi's perspective based upon his genuine belief, the original entry for 11 January 2008 was wrong in the same way as were the four uncontroversial alterations. Despite that, the Committee (rightly) emphasised the importance to be attached to the recording of consent and concluded that "the note as amended does not record the site for implant to which Patient A gave consent." Given the Committee's finding that Patient A and Mr Monibi were at cross purposes on 11 January 2008, this finding is problematic without further explanation. The true position on the Committee's findings was that LL7 was not the site for which Patient A thought she had given consent but was the site for which Mr Monibi thought she had been consenting. While it is reasonable to hold that it was Mr Monibi's responsibility to ensure that he and his patient were not at cross-purposes, the fact that they were is not indicative of dishonesty. To the contrary, the finding that Mr Monibi's genuine belief was that he and his patient had been discussing and consenting to an implant at LL7 is highly relevant to the issue of his dishonesty, whereas Patient A's belief (which Mr Monibi did not understand) that she was consenting to an implant at LL6 is not. Put another way, although the Committee was correct to hold that the amendment of this reference did not reflect Patient A's understanding, what matters is whether or not it reflected Mr Monibi's.

vii) This point is not properly met by the Committee's finding^[13] that after the telephone call from Mr A on 18 April 2008 "it became apparent to [Mr Monibi] on that day that [he] may have made an error in positioning the implant somewhere other than the position to which Patient A had consented." The receipt of the call inevitably raised the possibility of error, but on the Committee's findings, Mr Monibi still believed that the plan to which Patient A had consented was for the implant to be at LL7. Thus, although the mere fact of changing the records was misleading as found by the Committee, the fact that it was done after the call does not necessarily determine the question of dishonesty.

viii) The Committee's reasoning supporting its finding on the critical question of dishonesty was shortly stated. Having referred to the casual manner of the alterations, which suggested it was not a calculated act, the Committee stated that "the two alterations about which the Committee is particularly anxious, created a false and misleading impression more favourable to your position than that of Patient A."^[14] In the context of a disciplinary enquiry, that conclusion is correct; but the Committee's conclusion that "at the time of amending [the] records, it is likely that [Mr Monibi] did not foresee the issue being elevated to this stage" is equally material. The Committee did not reach any conclusion about what the anticipated effect of altering the notes would be, given that Mr Monibi did not foresee the matter giving rise to disciplinary proceedings. It concluded that his motivation was deliberately to mislead, without identifying who (if anyone) was intended to be misled.

ix) So the overall effect of the Committee's finding was that although all of the amendments were made in a casual manner after the call on 18 April 2008 and all reflected (or were intended to reflect) what Mr Monibi genuinely believed to have been agreed, four were made without dishonesty while two were dishonestly made. The fact that Mr Monibi genuinely believed that the two controversial alterations represented what had been agreed is critical to the issue of dishonesty and was not addressed by the Committee.

The Grounds of Appeal

22. Mr Monibi appeals against:

i) The determination that the following heads of charge were proved:

a) 4(d) - Failure to obtain informed consent for the treatment in that he did not explain adequately or at all the position of the implant and/or restoration he proposed to place;

b) 5(a) – The implant and/or restoration he placed was/were inadequate in that the location did not correspond adequately or at all to the location he had proposed;

c) 6(c)(i) – His record keeping was inadequate in that he did not make any or any adequate record of Patient A's aspirations regarding the space distal to LL5; and

d) 8(b) – his conduct in altering his records in two of the five respects that were the subject of the Charge was dishonest.

23. Mr Monibi appeals on the ground that the findings against which he appeals were wrong, contrary to the weight of the evidence and decisions which no reasonable PCC could have reached.

The Substance of the Appeal

24. The determination that heads of charge 4(d), 5(a) and 6(c)(i) were proved did not lead to findings of dishonesty, the finding under 8(b) being limited to the two controversial entries, one on 21 September 2007 and one on 11 January 2008. I will therefore concentrate primarily on that finding, while recognising that the Committee's adverse findings on the other heads that are now challenged may have influenced their overall view.
25. Recognising the scale of the task facing his client, Mr Haycroft has submitted a detailed analysis of the PCC's determination and of inconsistencies and inaccuracies that he says show with reasonable certainty that the determination is wrong. In summary, his challenge is founded upon five strands of argument, criticising what he describes as:

i) A failure to consider the evidence globally but instead as isolated and largely unconnected events;

ii) A reliance upon Patient A's evidence as "honest and credible" whilst failing to give due consideration to the numerous inconsistencies in her evidence which when viewed as a whole (and not in isolation) made her evidence irreconcilably unreliable.

iii) The PCC's own new version of the facts which itself was illogical, not founded on an evidential basis and indeed contradicted by the evidence.

iv) The PCC finding that of 6 admitted hand written alterations in clinical notes, 2 were dishonest although they were made at the same time as 4 other admitted alterations which the PCC found were innocently made to correct genuine factual errors.

v) A failure to give sufficient weight to the Appellant's previous good character.

26. It is a central feature of his argument that all matters must be viewed both singly and cumulatively and that, once that is done, the PCC's determination is shown to be unsustainable. I bear that submission in mind at all times but, in an attempt to make this judgment coherent, I will address the various strands of the argument in turn.

A failure to consider the evidence globally but instead as isolated and largely unconnected events

27. The Committee expressly considered each appointment in turn. In doing so it did not at any stage refer to evidence other than that directly relating to the appointment being considered; and it did not at any stage stand back to consider the reliability of the GDC's evidence in general or Patient A's evidence in particular as a whole. It then turned to make its findings in relation to each head of charge in the light of the findings it had already made. With one exception, the only cross-referencing that I have been able to identify is that the Committee on a number of occasions took the findings that it had made in relation to an earlier appointment as a factual support for its findings in relation to a later one and, critically, in relation to the finding of dishonesty^[15]. That does not meet the point now made on behalf of Mr Monibi; rather, it illustrates it because, if the finding made in isolation in relation to the earlier appointment is suspect, it may infect the later reasoning and conclusions. The exception is that, when considering Mr Monibi's motivation, the Committee expressly looked at "the totality of the evidence" in coming to a view about when the various alterations to the notes were made. Even then, however, the Committee did not refer to the fact of the alteration to the note on 16 May 2008 or the fact (as found) that no letter of complaint was sent until March 2009.
28. I therefore accept that there was a failure to consider the evidence globally and that the Committee generally (though not completely) tended to look at the case as isolated events. The question on this appeal is whether Mr Monibi is able to show that, if a global view is taken, the Committee's conclusions can be seen to be wrong.

Reliance upon Patient A's evidence whilst failing to give due consideration to the numerous inconsistencies in her evidence which when viewed as a whole (and not in isolation) made her evidence irreconcilably unreliable.

29. Before the Committee and again on this appeal, Mr Haycroft relied upon a large number of what he described as inconsistencies and inaccuracies. To my mind, most are at best of minor significance and do not contribute to the argument except possibly as make-weights^[16]. Some of his criticisms are more substantial and require closer attention.
30. The first is an all out attack on the Committee's acceptance that Patient A and Mr A gave "detailed and consistent" accounts of Patient A introducing her husband to Mr Monibi in the reception area of the practice immediately after Patient A's consultation (and extraction of LL7) on 21 September 2007; and that they recalled "in convincing detail" the terms of a joke made by Mr A about "LL6" referring to the latest Audi car. Mr Haycroft submits that their evidence about this cannot have been correct because they said that the conversation happened when the appointment was made for Patient A to attend for the implant. On convincing documentary evidence, the Committee found that the implant appointment was fixed for 11 January 2008 when Patient A attended on 5 October 2007. However, Patient A gave evidence that her husband did not accompany her that day (and the Committee found that he was not there) because he was at the airport. Therefore, submits Mr Haycroft, her husband could not have made the Audi joke when the implant appointment was made on 5 October 2007, because he was at the airport and therefore not present. He backs this up by an attack on their joint recollections, taking the point that the Audi joke was not mentioned in the letter before claim or any witness statement provided before Mr A and Patient A gave evidence. It was therefore mentioned for the first time some six years after the matters in question took place, which places a question mark over the reliability of their recollection and evidence. He submits that Patient A's reliability is further (and fatally) undermined when this remarkable feat of memory is set alongside her inability to remember having had a 48 minute conversation with her solicitor just two weeks before the hearing at which she was giving evidence.
31. The significance of this criticism, if it is well founded, is two fold. First, it supports the submission that Patient A was fundamentally unreliable; and, second, it prevents the GDC from relying upon the fact of the Audi joke to support its case that a treatment plan was proposed (even if not finalised) by Mr Monibi on 21 September 2007. Taken in conjunction with Mr Monibi's original note saying "Treatment Plan – Extract LL7 under local anaesthetic + replace LL6 space with dental implant", acceptance of the GDC's evidence about the Audi joke supports the Committee's finding that Mr Monibi on 21 September 2007 proposed a treatment plan in terms that included placing the implant in the space originally occupied by LL6.
32. I am not persuaded by Mr Haycroft's submissions on this point when taken on its own. He does not go so far as to suggest that the evidence about the Audi joke was a dishonest fabrication, simply that it was unreliable. Allowing for the fact that Patient A was wrong in her evidence that she was given her implant appointment on 21 September 2007, there was other evidence to support the finding that Mr Monibi had a conversation with Mr A on that date. Mr A's evidence was that he went to the first appointment because his wife would always ask him to go with her if something new was happening^[17]; and that he remembered the date because 21 September was his mother's birthday which became more notable as the second appointment (5 October) was on his wife's birthday^[18].
33. Apart from the Audi joke, on which Mr A was extensively cross-examined, there was other detail in his account which was capable of supporting the finding that he had a conversation with Mr Monibi. In particular he gave evidence of remembering Mr Monibi saying that the implant would stop a tooth above coming down from above^[19], which the Committee was entitled to take as being indicative of a true recollection even though, on the evidence, stopping the further over-eruption of the upper tooth was a reason for putting the implant in the LL7 position rather than the LL6 position. Mr A also gave evidence that Mr Monibi told him how he would proceed if it had been his sister and not Patient A, which appears plausible. Furthermore, although on his recollection Mr Monibi also referred to putting the implant next to Patient A's smile (using general language), there is no compelling reason why he cannot have used the language of LL6 in the reception area even if he was not arranging an implant appointment. Lastly, Mr A gave a reasonably plausible explanation for why he had not mentioned the Audi joke in his witness statement, namely that he didn't think a witness statement was the place for a joke. Viewed overall, it cannot reasonably be said that Patient A's error about when she was given her appointment card and her and Mr A's belief that the conversation happened when she was given it demonstrates that the evidence about the Audi joke was wrong. While the Committee's reason for accepting the evidence, namely the presence of convincing detail, was shortly stated, it was readily understood.
34. Of more concern is that the Committee did not address the fact that (on its subsequent finding) Patient A and her husband were wrong in thinking that the conversation took place in the context of Mr Monibi arranging the implant appointment with his receptionist. Had it done so, it should have recognised it to be a demonstrated occasion of unreliability, which was to be weighed in the overall balance even though (for the reasons I have just indicated) it did not compel the rejection of the evidence about the Audi joke or her evidence about 21 September 2007 on its own.
35. A further error in their evidence about 21 September 2007 is that Patient A referred to her teeth at the bottom having moved to the left hand side and that placing an implant at LL6 would prevent further migration. Mr A referred to migration in his oral evidence, having not referred to it in his witness statement. Patient A's evidence was wrong because her teeth had not migrated "to the left"; what had happened was that LL7 had moved forwards to take some of the gap left by LL6, but that is different. Although the reference to migrating to the left was an error, showing unreliability of recollection, it does not go further than that. It was not addressed at all by the Committee.
36. The next substantial point put forward by Mr Haycroft is the rejection of Patient A's evidence that on 11 January 2008 she looked in her mouth and thought that the stitches were at the back of the gap. This was an incident of unreliability in itself; and Patient A was not able to give any explanation of why she had not mentioned it when she went back on 25 January 2008. The materiality of this error was not assessed by the Committee.
37. To my mind, the most important error made by Patient A and Mr A was in saying that they hand-delivered the 31 July letter on 31 July 2008 and that she had a specific conversation about it (the terms of which she recounted) on 1 August 2008. On any view this was a troubling error since it showed that Patient A could give convincing detail about an incident and be completely wrong. It therefore called for heightened scrutiny of the rest of her evidence to see whether, and if so to what extent, it was demonstrably reliable. It was also an important error since, if no letter of complaint was provided until March 2009, it raised serious questions about when and in what circumstances Mr Monibi made the alterations in his records.
38. In the event, the Committee held that he altered his records "shortly after" the call on the 18 April 2008. Two points immediately arise. First, the Committee did not separately address the alteration to the 16 May 2008 entry, although it was implicit in the rest of the determination that it was altered at the same time as the others. Second, the Committee did not address in any detail what was said during the telephone conversation or the evidence about it. This was important given that, on the Committee's findings, Patient A went back to Mr Monibi a number of times thereafter, he recorded that she was happy on 30 April 2008, and no written complaint was made for another 11 months.
39. In her witness statement, Patient A said that when she returned home she spoke to her husband who immediately telephoned and spoke to Mr Monibi. She said "My husband told me that Mr Monibi informed him not to worry and said to him words to the effect that "there would now be two crowns to fill the gap in one implant." In her oral evidence she said that the call was made on the speakerphone (so that she would have been able to hear what was said); that was also Mr A's oral evidence. The letter of 31 July, which was typed by Mr A but written as coming from Patient A, said that she (not her husband) telephoned. Mr A's oral evidence was that when Patient A returned home on 18 April 2008 she showed him where the implant was in the mouth; she was not happy and asked him if he could phone up and clarify what had happened. When he saw it his reaction was that "I thought whatever he has done would be fine and I didn't really question anything, but [Patient A] asked me to give him a ring." When asked how the conversation went he said "Everything would be fine, don't worry, and basically a large something will cover the two points on top. … I thought it would be fine because he said it would be fine. If someone tells you "Don't worry. Everything's going to be fine", I didn't question it or think anything wrong." He could not remember whether Patient A had started the conversation and handed over to him or whether he had spoken from the outset. He did not say what was said to Mr Monibi in the conversation, the nearest evidence to it being "I remember speaking because my wife was quite upset at what happened and it was a complete contradiction of what was said."; and "She came back, she said "It's in the wrong place. We need to make a phone call to say it is not quite there or not where it should be" , and I said "Okay. Fine." Even at that point, I was still, you know, "Don't worry." When Mr Monibi said everything would be fine, I would not doubt it for one minute."
40. This evidence required to be weighed against Mr Monibi's including his note for 18 April 2008, which said "Patient would like space G57 closed!" and his note for 30 April in which he recorded that Patient A was "v. happy". The Committee made no specific finding about what was said to Mr Monibi, but determined that he had made his record for that day after the telephone call^[20]. Subsequently, under head 6(c)(i) it said "The Committee did not consider [the note for 30 April] was a record of Patient A's true aspirations regarding the space in the lower left quartile of her mouth as, by this date, an implant had already been placed at the LL7 rather than the LL6." It is to be noted that this concentrates exclusively upon Patient A's aspirations. It neither states what Mr Monibi was told in the telephone conversation nor determines that the note was knowingly inaccurate. Later still, under head 8(b), the Committee returned to 30 April 2008 stating "The Committee rejects your evidence [about what happened during the consultation] and prefers the evidence of Patient A and her husband. It became apparent to you on that day that you may have made an error in positioning the implant somewhere other than the position to which Patient A had consented." Once again, there is no further elucidation of what was said. Looking to find the logic of the Committee's determination, their finding supports the inference that Mr Monibi was told that Patient A thought the implant was in the wrong place; but this is not stated and gains only modest support from the evidence of her husband, which shows that he was considerably more sanguine than his wife and was readily reassured that everything would be fine.
41. Standing back, there was evidence which, if accepted, supported a finding that Mr Monibi altered his notes shortly after the telephone call on 18 April 2008^[21], but the failure of the Committee to confront the alteration to the 16 May 2008 note, the terms of Mr Monibi's note for 30 April 2008 and the lack of clarity about what was said in the telephone conversation, render the Committee's reasoning opaque.
42. The final point of substance concerning Patient A's unreliability is her evidence that Mr Monibi had drilled bone away from her jaw on 18 April 2008 without any anaesthetic. Although this was not addressed by the Committee, it seems certain to be wrong for two reasons. First, Patient A would never have tolerated it; second, Mr Monibi's note records that he gave a local anaesthetic and his evidence was that bone would not grow over the implant.
43. Drawing these strands together, there can be no doubt that Patient A was shown to be unreliable in a number of significant respects, of which her evidence about the letter of 31 July appears to me to be the most serious. That said, I am not satisfied that she was shown to be so unreliable that her evidence should be disregarded altogether, particularly when it was materially supported by evidence from her husband that was capable of acceptance. In particular, I do not accept that her evidence was so discredited that her (and her husband's evidence) that there was a discussion on 21 September 2007 about placing the implant towards the front of the gap rather than towards the back had to be dismissed out of hand. What was required of the Committee, and is required on this appeal by way of rehearing, is an assessment of where the truth lay which acknowledged the difficulties in both the GDC's case and Mr Monibi's and which gave adequate reasons to show how those difficulties were resolved. While I conclude that the Committee's reasons were inadequate in failing to address significant difficulties in the respects that I have outlined, that is not determinative of the appeal. What matters is whether the finding of dishonesty was wrong.

The PCC's own new version of the facts which itself was illogical, not founded on an evidential basis and indeed contradicted by the evidence.

44. I have outlined the contrasting stances taken by the parties. The Committee resolved the stark differences between them by determining that, although Mr Monibi had proposed a plan on 21 September 2007, which involved the extraction of LL7 and the placement of an implant in the LL6 area, by 5 October 2007 he had concluded that the LL7 site was the appropriate site for implant treatment and that from that date forward he genuinely believed LL7 to be the agreed treatment site. In other words, put at its highest for the GDC's case, even if (which the Committee did not find) he had remembered that he had proposed an implant in the LL6 area, that proposal had not in any sense been a fixed plan and on and from 5 October 2007 he acted in the belief that LL7 was not merely the appropriate site but also that Patient A had agreed to it (and later gave her informed consent to it).
45. Although Mr Monibi's responsibility for explaining matters to his client (which he acknowledged frequently in the course of his evidence) meant that he was open to criticism for not doing so properly, the version of events determined by the Committee was in many respects highly favourable to Mr Monibi. Had he not believed that LL7 was both the appropriate site and the site to which Patient A had given informed consent, it is impossible to believe that an ultimate sanction as modest as a four month suspension would have been imposed. The question, though, is whether the Committee's findings of fact were open to it and whether they have been shown to be wrong.
46. In my judgment the Committee's version of events was neither illogical nor contrary to the evidence. On the contrary, it provided a logical resolution of what would otherwise be an irreconcilable difference between the evidence of Patient A and Mr Monibi without imputing wholesale dishonesty to either. It is true that neither party contended for this factual outcome, but the finding that Mr Monibi had proposed placing the implant at LL6 was consistent with the evidence of Patient A and her husband that there had been discussion about placing the implant to the front of the gap on 21 September 2007, and Mr Monibi's note that day to that effect. The finding that he had concluded by 5 October 2007 that LL7 was the appropriate place and that he planned to place the implant there from 5 October 2007 was not a straightforward finding, given the terms of the appointment card given to Patient A that day (with its reference to LL6) and the (subsequently changed) note on 11 January that he had informed consent to an implant in the LL6 area. The obvious implication of these objective pieces of evidence had to be avoided by the Committee noting the ambiguity of the terminology in this context^[22], or by the submission that Mr Monibi was so hopelessly confused that no reliance could be placed upon any part of his notes that favoured the GDC's case.
47. I therefore reject this aspect of Mr Haycroft's argument.

The PCC finding that of 6 admitted hand written alterations in clinical notes, 2 were dishonest although they were made at the same time as 4 other admitted alterations which the PCC found were innocently made to correct genuine factual errors.

48. The Committee made three findings which, in my view, are key to any consideration of the issue of dishonesty. In reviewing them for the purposes of this appeal by rehearing, I take into account all of the evidence and the submissions made on behalf of Mr Monibi, including in particular the demonstrated unreliability of Patient A in the respects identified above.
49. The first key finding was that on 21 September 2007 Mr Monibi proposed that the implant would be placed in the position of the previously extracted LL6 tooth rather than the position of the more recently troublesome LL7 tooth. There were two strands of evidence which supported that finding. The first was the oral evidence of Patient A and Mr A, which I have addressed above; the second was Mr Monibi's note. It is clear that Mr Monibi's notes for 21 September were chaotic to a degree that is inexplicable for a dental specialist who, on all the evidence, is a skilled and conscientious clinician. There is no reasonable explanation for his mis-reporting the referral letter, which expressly identified LL7 as the troublesome tooth; and his reference to extracting LL6 when he had in fact extracted LL7 is, if anything, even more surprising. It does not follow, however, that because he made mistakes in relation to the first and third entries he also made a mistake in relation to the second; and the specific terms of the second entry indicate that he did not. To my mind (and clearly to the minds of the Committee as well) the natural meaning of the original second note is that he would extract LL7 and put an implant where LL6 had been. Nor can the second entry readily be explained on the basis that the reference to "the LL6 area" was a reference to the gap between LL5 and LL8 as a whole, although that is possible. It seems to me to be unprofitable to speculate about how Mr Monibi might best have expressed his intentions, or what the note could have meant, when it is clear that his notes do not achieve high levels of precision and accuracy and the plain meaning of the note in question is apparent despite the use of dentists' shorthand.
50. For these reasons and on this evidence I am not satisfied that the Committee was wrong in substance to find that Mr Monibi proposed on 21 September 2007 that he would place the implant adjacent to the LL5 tooth. I would, however, express the finding differently, to reflect the fact that Mr Monibi did not refer to LL6 or LL7 in the consultation room. I find that Mr Monibi and Patient A discussed what he would do in terms which led Patient A to understand that the implant would be towards the front of the gap rather than towards the back and which led Mr Monibi to refer in his note to placing the implant "in the LL6 area." To the extent that the Committee's finding suggests that the language used was more precise than I have indicated, it was wrong in the light of Patient A's evidence that the terms LL6 and LL7 were not used in the consultation room. With some hesitation I would uphold the Committee's finding that he mentioned LL6 when speaking to Mr A in the reception area; but this was not in any sense a proposal of treatment, that having been done in the consultation room.
51. The second key finding made by the Committee is that Mr Monibi and Patient A were at cross purposes on 5 October 2007, that Mr Monibi had by then concluded that LL7 was the appropriate site for implant treatment, and that from that date forward he genuinely believed LL7 to be the agreed treatment site. I reject any appeal against that finding, for the reasons set out at [44]-[46] above. To my mind, the findings made by the Committee are the most satisfactory resolution of the evidence, even though it entailed not accepting in full the accounts of either Patient A or Mr Monibi. For the avoidance of any doubt, I consider that the very strong testimonial evidence of Mr Monibi's probity supports this conclusion.
52. The third key finding was that Mr Monibi altered his notes shortly after the call on 18 April 2008. Having reviewed the Committee's reasoning and the evidence about the making of the call, I am satisfied that it is wrong and conclude that the notes were altered some time on or after 16 May 2008. It seems overwhelmingly probable that all six alterations were made at the same time, in which case they must have been made on or after 16 May 2008. The alternative hypothesis is that he made the first five alterations shortly after 18 April 2008 and then made yet another mistake on 16 May 2008 which he altered separately on another occasion. Despite Mr Monibi's demonstrated capacity for making errors in his notes, this alternative hypothesis seems implausible, particularly if he had recently made the previous five alterations. The Committee noted that his later note-taking appeared to be more accurate, which would be a natural consequence of his being aware that he had made the previous mistakes; it is not obvious why that improved accuracy should not have applied on 16 May 2008 as well. Furthermore, having seen the originals of the notes, the alterations give every appearance of being all of a piece in terms of the pen used and the casual manner of the alterations.
53. For the reasons I have set out at [38]-[40] above, the evidence about the telephone conversation on 18 April 2008 was weak, with no direct evidence about precisely what was said and with Mr A, who conducted the call, being more sanguine than Patient A and, on his evidence, readily satisfied in the course of the conversation. While the Committee's finding that it became apparent to Mr Monibi that he had made an error supports the inference that he was told that Patient A thought the implant was in the wrong place, no such finding was made by the Committee. Instead, the Committee appears to have worked backwards from its conclusion that the alterations were not made in or after March 2009^[23]. In doing so, it failed to address the problem of the 16 May 2008 alteration. While the conclusion that the alterations were made before March 2009 is sound, the conclusion that the five that were the subject of the charge were made shortly after 30 April 2008 is not.
54. The conclusion that Mr Monibi altered his notes on or after 16 May 2008 is significant because it weakens the nexus between the alterations and whatever happened during the phone call on 18 April 2008 and renders suspect the conclusion that the alterations were made in response to that telephone conversation. It also enables a rationalisation of Mr Monibi's note on 30 April 2008 which is otherwise very troubling: it seems most unlikely that Mr Monibi could honestly have recorded that Patient A was "very happy" on that date if there had previously been a complaint on 30 April 2008 of sufficient seriousness to make him review his notes and to make it apparent to him that he may have made an error in positioning the implant somewhere other than the position to which Patient A had consented. If it had been concluded that the error on 16 May 2008 had been made and altered after the previous five alterations, that would strengthen the argument that Mr Monibi was chronically careless in his record keeping. It would not support the suggestion that the two controversial errors were deliberately inaccurate.
55. For these reasons I am satisfied that the Committee was wrong both in its finding about the date when the alterations were made and in its conclusion that the alterations were made in response to a realisation as a result of that telephone conversation that he may have made an error in positioning the implant somewhere other than the position to which Patient A had consented.
56. In the light of these conclusions I turn to the findings of dishonesty in respect of the two controversial alterations. The Committee accepted that no dishonesty should be imputed where the original records had been factually incorrect. I agree. It follows that the Committee did not consider that the fact of making alterations to the notes on its own was dishonest and that what would be dishonest would be to alter a record so that it did not represent what Mr Monibi believed to be the true position when he made the alteration. Again, I agree; but this exposes a flaw in the Committee's reasoning in relation to the two controversial alterations. In the light of the Committee's finding that, from 5 October 2007 onwards his plan was to place the implant at the LL7 site and that he believed that to be the agreed treatment site, his alteration to the original entry for 11 January 2008 was, in his mind, the correction of a factual error just as much as were the uncontroversial ones: he believed that he had obtained informed consent for (and had just placed) an implant at LL7, not LL6^[24]. On his understanding, therefore, the original note was inaccurate in stating that he had obtained informed consent for the implant to be placed at LL6, and he had corrected it so that it was accurate. That was expressly accepted by the Committee when it found that the alteration was consistent with his understanding on that day as to the intended implant site^[25]. For this reason alone, the finding of dishonesty in relation to the original entry for 11 January 2008 is inconsistent with the Committee's reasoning and conclusions in relation to the uncontroversial alterations and is wrong.
57. The controversial alteration to the note for 21 September 2007 is slightly more complicated. However, the Committee did not find that Mr Monibi was conscious when he made the alteration that his original note had been correct, and I am not prepared to make such a finding. Bearing in mind the evidential requirements for a finding of dishonesty, the most significant features of the evidence are that the other five alterations were not dishonest, the alterations were not made in direct response to the telephone conversation on 18 April 2008, no formal complaint had been made, Mr Monibi did not envisage that a dispute would escalate (and so had no significant motivation to render this one note misleading), he believed that LL7 was the site that he had proposed and to which he had obtained informed consent, the alterations were made at least eight months after the original consultation, the casual manner in which all of the alterations were made, and the powerful evidence of Mr Monibi's probity. The fact that the alteration was "more favourable to [Mr Monibi's] position than that of Patient A" does not imply or prove dishonesty if he was not conscious that the original note was accurate. In the absence of a finding that Mr Monibi appreciated that he was altering an originally accurate note so that it became inaccurate, the Committee's finding of dishonesty in relation to the 21 September 2007 note cannot stand because his conduct is equally consistent with Mr Monibi believing that he was altering an originally inaccurate note so that it became accurate. This conclusion does not undermine the Committee's finding (which I uphold) that the original note was accurate in referring to a proposal on 21 September 2007; but a finding of dishonesty is a reflection on Mr Monibi's state of mind when he made the alteration and not just a reflection on the accuracy or otherwise of his original note.
58. Mr Haycroft deployed in argument the agreed evidence of the experts that the entire space between LL5 and LL8 could be referred to as the LL6 area. Had that been his only point, it would not have been sufficient to overturn the Committee's findings. It is not clear what weight the Committee placed on this evidence apart from the reference that I have set out at [20(iv)] above. On the evidence as disclosed by the transcripts, I am not able to conclude that there was in fact confusion because of the ambiguity and possible lack of precision in the references to LL6 in the notes and I make no finding one way or another.

A failure to give sufficient weight to the Appellant's previous good character.

59. The Committee said that it had regard to the Appellant's previous good character but did not otherwise identify what weight it had attached to it. The evidence from Mr Monibi's Receptionist, his Practice Manager and a colleague who gave evidence on his behalf was that Mr Monibi is highly competent and respected in his field as a clinician and that he is a person of the highest integrity. That evidence goes directly to the likelihood of Mr Monibi acting dishonestly when altering his records, and I have taken it into account. Of course, the Committee had the advantage of seeing Mr Monibi giving evidence whereas I have only been able to read it. It is also fair to point out that Mr Monibi was singularly unable to explain how he came to make the original mistakes or the precise circumstances in which he made the alterations. However, there is nothing in his evidence that suggests that his character witnesses were wrong in their assessment; to the contrary, he showed himself ready on many occasions when giving evidence to accept responsibility for misunderstandings that may have arisen between him and Patient A. Despite his inability to give satisfactory explanations, the evidence of his general integrity raises questions about the likelihood that he would make two dishonest alterations while casually making six altogether. His general integrity is not on its own a sufficient reason to depart from the findings of the Committee, but it goes into the balance when reviewing them.

Summary of Conclusions

60. Patient A's evidence was shown to be unreliable in a number of significant respects. This did not mean that her evidence should be rejected in its entirety, but it gave rise to the need to consider it carefully and in the context of the case as a whole. The Committee did not consider the evidence as a whole when making its findings of fact about the appointments in turn. This was a significant weakness in the Committee's approach but does not of itself justify setting aside the Committee's findings. Having reviewed the evidence as a whole, I have concluded that the Committee's core findings about what happened on 21 September 2007, 5 October 2007 and 11 January 2008 are not shown to be wrong, for the reasons set out in detail above. However, the finding that Mr Monibi made the alterations to his records shortly after the telephone conversation on 18 April 2008 is wrong: he made them on or after 16 May 2008 and before about March 2009.
61. In the absence of a finding that Mr Monibi realised at the time that the controversial alterations he made to the notes for 21 September 2007 and 11 January 2008 were wrong, the Committee's findings of dishonesty cannot stand. On the evidence, the alteration to the note for 11 January 2008 reflected his genuine belief that he had obtained informed consent to place the implant where he did, even though that did not represent Patient A's understanding. That conclusion is consistent with the Committee's reasoning and conclusion that the uncontroversial amendments were not dishonest. For similar reasons, the alteration to the note for 21 September 2007 was not dishonest unless Mr Monibi realised at the time that the original note was accurate and that his alteration was not. There is no finding by the Committee that Mr Monibi had that dishonest state of mind when he made the alteration and I am not prepared to make such a finding. By way of additional comment, once it has been decided that five of the six alterations were honestly made, that fact and Mr Monibi's general integrity weigh heavily in the balance against a finding that the sixth alteration was dishonest.
62. In these circumstances the challenges to the Committee's determination on heads 4(d), 5(a) and 6(c)(i) are rejected because of Mr Monibi's failure to discharge his responsibility to ensure that he was not at cross-purposes with Patient A when proposing where to place the implant, obtaining Patient A's consent and recording where Patient A wanted to have the implant. However, the challenge to the Committee's determination on head 8(b) succeeds. It is common ground that the sanction of suspension for four months stands or falls with the finding of dishonesty under head (b). I therefore quash the sanction.
ANNEXE A THE CHARGE IN ITS FINAL FORM

"That, being a registered dentist:

1. At all material times you were practising at Mount Vernon Hospital, Rickmansworth Road, Northwood, Middlesex, HA6 2RN. A+P

2. From approximately 2007 to 2009 you provided dental treatment to patient A (identified in Schedule 1 below), including an extraction, an implant and a restoration in the lower left quadrant ("the treatment"). A+P

3. You did not adequately plan the treatment in that you:

(a) [did not adequately examine]^(P or made no or no adequate record of the examination of the clinical ridge at the site proposed for placement of the implant/s; A+P

(b) made no or no adequate record of the evaluation of the height of bone in the LL6-LL7 area; A+P

(c) did not use or made no or no adequate record of the use of study models and/or diagnostic wax ups; A+P

(d) did not give any or any adequate consideration to appropriate options for care to restore the space LL5 to LL8. NP

4. You did not obtain informed consent for the treatment in that you:

(a) did not adequately explain:

(i) the available treatment options; P

(ii) the risks and benefits of the treatment; A+P

(iii) the costs of the treatment; P

(b) did not provide the patient with any or any adequate written treatment plan; A+P

(c) did not adequately explain the cost of the extraction of LL7, prior to treatment; P

(d) did not explain adequately or at all the position of the implant and/or restoration you proposed to place. P

5. The implant and/or restoration you placed was/were inadequate in that:

(a) the location did not correspond adequately or at all to the location you had proposed; P

(b) the restoration was of poor appearance; P

(c) cleaning around the restoration was difficult. P

6. Your record keeping was inadequate in that:

(a) you did not make any or any adequate report on:

(i) a radiograph provided by the referring dentist in around September 2007; A+P

(ii) radiographs taken on or around 11 January 2008; A+P

(iii) a radiograph taken on or around 30 April 2008; A+P

(iv) a radiograph taken on or around 13 February 2009. A+P

(b) you did not obtain or did not retain a written record of consent for the treatment; A+P

(c) you did not make any or any adequate record of:

(i) the patient's complaint/aspirations regarding the space distal to LL5; P

(ii) the information provided to the patient regarding treatment options; A+P

(iii) WITHDRAWN;

(iv) a clinical examination in relation to a consultation on 21 September 2007; A+P

(v) a clinical examination in relation to a consultation on 5 October 2007; NP

(vi) the surgical operation to place the implant on or around 11 January 2008; NP

(vii) an appointment on or around 7 May 2008; P

(viii) an appointment (on a date unidentified) when the restoration you had placed was modified. NP

7. You altered the records so that references to "LL6" and/or other teeth in the lower left quadrant appeared to read "LL7", in relation to consultations dated:

(a) 21 September 2007; A+P

(b) 5 October 2007; A+P

(c) 11 January 2008. A+P

8. Your conduct at paragraph 7 above was:

(a) misleading; P

(b) dishonest in that you intended to give the impression that the treatment proposed and/or provided had been in relation to the LL7 area rather than the LL6 area. P

And that in relation to the facts alleged your fitness to practise is impaired by reason of misconduct".

ANNEXE B Transcript of Dr Monibi's Handwritten Patient Notes

Date
21.09.07	C/O Pt ref by Dr Melluish re G7 (amended from G6) vertical # 6 years ago after RCT in Romania O/E class 1 occlusion perio NAD [???] 6 over erupted by a mm or two 3mm space m to G7 m/c 0.0 D/W Pt [26] Pt has lost considerable bone volume G7 m T.P 1 - XLA G7 + replace G7 (amended from G6) space with dental implant[27] TxLA G7 (amended from G6) elevated + extracted with forceps[28] POIG haemostasis tooth with vertical # line given to patient
05.10.07	r/v[29] - all well O/E – good healing D/W pt re implant placement + space m to [???] G7 (amended from G3) Pt happy to leave gap[30] .·. (therefore) implant G7 area to restore as before placement 3/12
11.01.08	Tx LCPA (long cone peri apical) GQ - informed consent re implant G7 (amended from G6) area - corsodyl M/W Ibuprofen 400mg - Tx LA towel + drape as usual Osteotomy 11m x 4mm ø (diameter) implant placed C/S[31] sutures torqued 50 Ncm N.V. f/h Imp (fixture had) 6/52 Post op LCPA
25/01/08 (incorrectly dated 25/01/07 should read 25/01/08)	Tx [???] c/o nil sensitive G1 t.c +ve r/v for impressions 3/12[32]
18.04.08	LA Implant exposed impression + H.A.(healthy abutment) shade A2/A3 Pt would like space G57 closed!
30.04.08	Tx fitted Cr GQ [33] Pt v. happy 20 Ncm CWP + comp A3 occlusion ° floss ° PO PA r/v 3/52
16.05.08	Tx GL7 (amended from LL) Cr fitted[34][35] torqued to 20 Ncm fermit + C/W (cotton wool) r/v 6/52
01.08.08	C/O – food packing mesial to G7 implant D/W Pt re space m to G7—Pt v. keen to close gap .·. Tx reviewed cr + fitted H/A r/v for fit 2/52 (to change shape of pontic / m of G7)
15.10.08	Tx tried in cr G7 not happy with m contact ? lab for adjustment or remake porcelain ? make a pontic in m space fit 2/52
19/10/08 (incorrectly dated 19/10/08 should read 29/10/08)	Tx fitted G7 + torqued to 20 Ncm c/w + clip tighten in 6/52 + final restoration
05.12.08	After conversation that Dr FM had with pt, Dr Monibi said pt implant is fine, feels comfortable and no difference from the other teeth. (AT) (note made by receptionist)
13.02.09	c/o nil Tx LCPA occlusion ° new comp restoration placed in G7 soft tissue ° screw torqued to 20 Ncm r/v 1 year

ANNEXE C THE PCC'S FINDINGS AND REASONS ON THE ISSUE OF DISHONESTY (With paragraph numbers added for convenience of reference)
63. You admitted making a total of six alterations to your records. Of these, it is clear from the evidence that the original records were factually incorrect in four instances. Two of those instances occur in the record of 21 September 2007, namely the purpose of the referral from Patient A's general dental practitioner and the particular tooth which was extracted. The original record of the consultation on 5 October 2007 was inaccurate as there was no space mesial to LL3. The other uncontroversial amendment was made to the record of 16 May 2008 where the original note as to the position of the restoration made no sense as written.
64. In the light of this, the Committee gave particularly anxious consideration to the two remaining alterations:

1. In the record of 21 September 2007 (which notes the space to be implanted); and

2. In the record of 11 January 2008 which records informed consent.

65. Neither of these records as amended is factually accurate. In relation to the note of 21 September 2007, the note as originally written was accurate, and it distinguished between the extraction site and the intended site of the implant, as proposed at that time. As the Committee has found, by the 5 October 2007 your plan was to implant at the LL7 site, whereas Patient A still continued to believe that the implant was to be at the LL6 site. In relation to this alteration, therefore, the Committee concludes that its effect was to render inaccurate a note which was previously accurate. In the case of the record of 11 January 2008, the Committee has found that the alteration made was consistent with your understanding on that day as to the intended implant site. However, the recording of consent is very important. The note as amended does not record the site for implant to which Patient A gave consent. The Committee also concluded that whilst the reference to 'LL6 area' may not necessarily have been inaccurate, taking Professor Brook's evidence that the gap might have been known by that name at that time, the amendment of this reference to 'LL7 area' was misleading and did not reflect Patient A's understanding.
66. In considering your motivation, the Committee first considered when it is likely that the various alterations were made by you. On that point, your evidence was that you cannot remember when these amendments were made, therefore the Committee looked at the totality of the evidence in coming to a view.
67. The Committee first considered whether it was likely that the amendments were made contemporaneously or at a later date. In relation to the note of 21 September 2007, the Committee considered it to be unlikely that it was changed on that day, because the note as amended became inaccurate. If it had been altered on the day, it is unlikely that it would have changed from being accurate to inaccurate. The Committee therefore concluded that the changes were made at a later date.
68. The Committee then considered what the likely trigger would have been for earlier notes being reviewed and altered. It first considered whether it was likely that the notes would have been reviewed and changed prior to the next consultation. On balance, the Committee considered it likely that you would have reviewed the notes before the next appointment, but not that you would have altered them at that time. The note of 5 October 2007 records a change in the proposed implant site and therefore no alteration to the accurate note of the consultation on 21 September 2007 was required. Further, had the notes been altered at this stage, the Committee considers it less likely that the same error would have been repeated later, as happened on 11 January 2008.
69. The Committee next considered whether the trigger to changing your notes might have been a review of your earlier notes at the end of the day on 11 January 2008, while writing up your notes for the implant treatment which had just taken place. The Committee considered it unlikely that earlier notes would have been reviewed at that stage.
70. The most likely trigger for such a review, on the balance of probabilities, would have been the phone call from Mr A to you on 18 April 2008 in which the implant position was first questioned. You stated in evidence that you had no recollection of such a call and that Patient A asked you during the consultation on that day for the first time to 'close the gap'. As explained above, the Committee rejects your evidence on this point and prefers the evidence of Patient A and her husband. It became apparent to you on that day that you may have made an error in positioning the implant somewhere other than the position to which Patient A had consented. The Committee considers it likely that this call was the trigger for you to review your notes. On the balance of probabilities, the Committee considers it likely that shortly after that call you reviewed and altered any references in the notes to LL6 to now read LL7.
71. The Committee also considered whether or not the trigger for amending your notes could have been receipt of the letter of complaint in March 2009. However, the Committee decided that this was unlikely on the basis that the fax from the Practice manager to you on 11 March 2009 records that the Practice was in possession of the notes at that time and suggests that someone could have already looked at them. The Committee considered it unlikely that you would have changed the notes subsequently, and therefore the likeliest time for you to have done so was on or shortly after 18 April 2008.
72. The Committee next considered your motivation in effecting the changes made. It took account of your previous good character and the inherent unlikelihood of someone in your position acting dishonestly. It took account of the seriousness of the allegation and the potentially serious consequences of altering records dishonestly. The Committee gave the evidence on this very anxious scrutiny.
73. The Committee concluded that following Mr A's phone call, you went back to your notes to check what had been recorded in them. The casual manner in which the amendments were then made suggested to the Committee that the decision to alter them was taken on the spur of the moment rather than being a calculated act. Some of the amendments had the effect of correcting factual errors, although the amendment on 5 October 2007 made no sense, as the amended reference to LL7 ought to have read LL8. However, the two alterations about which the Committee is particularly anxious, created a false and misleading impression more favourable to your position than that of Patient A.
74. The Committee was satisfied that these two alterations would be regarded as dishonest according to the standards of reasonable and honest people and the Committee was satisfied that you must have realised that they would be regarded as dishonest by these standards. Your motivation in effecting these changes was deliberately to mislead. It was suggested on your behalf that if you had intended to be dishonest, you would have made a better job of it, but the Committee concluded that you made these alterations on the spur of the moment. You believed that the situation could be retrieved by an adjustment to the proposed restoration which is what you told Patient A's husband on the phone, and what you then endeavoured to provide over the succeeding months. The Committee noted that your records appeared to be generally more accurate thereafter, and that no criticism had been made at that time of the standard of your record keeping. The Committee concludes that at the time of amending your records, it is likely that you did not foresee the issue being elevated to this stage
75. In all the circumstances the Committee has found that the GDC has discharged its onus in proving dishonesty.

Note 1   At D735D-37F    [Back]

Note 2   At pages 4-5    [Back]

Note 3   It is to be noted that Mr Monibi’s evidence as recorded by the Committee was that no decision was made on 21 September 2007 as to where the implant would be placed, that decision being taken on 5 October 2007. In addition (as noted above) his evidence was that he never proposed to place in implant in the space originally left by the LL6 tooth.    [Back]

Note 4   No further comment was made at this point about whether or not it would have been inappropriate to refer to the place where he subsequently placed the implant as being either the LL6 or the LL7 area.     [Back]

Note 5   See page 9 at [3(d)]    [Back]

Note 6   See page 11 at [5(a)]    [Back]

Note 7   See page 10 at [4(d)]    [Back]

Note 8   See Annexe C at [1]    [Back]

Note 9   See Annexe C at [11]    [Back]

Note 10   See Annexe C at [11]    [Back]

Note 11   See Annexe C at [2]-[3]    [Back]

Note 12   See [20(iv)] above.    [Back]

Note 13   See Annexe C at [8]    [Back]

Note 14   See Annexe C at [11]    [Back]

Note 15   See for example under head 4(d), where the committee referred back to its findings about 5 October 2007 as the foundation for its finding in relation to what happened on 11 January 2008. Under head 5(a), the Committee took its finding that Mr Monibi had on 21 September 2007 as the foundation for the finding that he did not adequately explain his change of mind on and after 5 October 2007,    [Back]

Note 16   For example, in her witness statement Patient A referred to the referral form from her general dentist and what was indicated on it; in evidence she said she had not previously seen it. On its own this is far from being a game-changer; taken overall, it is at best a make-weight.    [Back]

Note 17   D3/19B    [Back]

Note 18   D3/34C    [Back]

Note 19   D3/20B    [Back]

Note 20   Determination page 6.    [Back]

Note 21   Including Mr Monibi’s evidence that he had not discussed the implications of “closing the gap” with Patient A when, on his version, she said at the consultation on 18 April 2008 that she wanted that done.    [Back]

Note 22   See [20(iv)] and [20(x)(c)] above.    [Back]

Note 23   See Determination at page 15    [Back]

Note 24   See the findings of the Committee at [20(x)(c)] above    [Back]

Note 25   See [21(vi)] above.    [Back]

Note 26       [Back]

Note 27   Discussed with Patient    [Back]

Note 28   Treatment Plan – Extract LL7 (amended from LL6) under local anaesthetic + replace LL7 (amended from LL6) space with dental implant    [Back]

Note 29   Treatment Local anaesthetic LL7 (amended from LL6) elevated and extracted with forceps.    [Back]

Note 30   Review    [Back]

Note 31   Discussed with patient re implant placement + space mesial to [???] LL7 (amended from LL3). Patient happy to leave gap.    [Back]

Note 32   Cover screw    [Back]

Note 33   Review for impressions in 3 months    [Back]

Note 34   Fitted crown lower left quadrant    [Back]

Note 35   Treatment LL7 (amended from LL) crown fitted.    [Back]