Restoring Justice: the case of Balachandra v General Dental Council
In the appeal against a Fitness to Practise panel decision in the case of Balachandra v The General Dental Council [2024] EWHC 18 (Admin), the High Court overturned the allegations found proved by the Professional Conduct Committee and the erasure order imposed as a result, citing fundamental flaws in the PCC’s approach and procedure.
Background
Dr. Balachandra was facing serious allegations from the GDC, which inter alia included, creating retrospective handwritten clinical notes in the form of paper ‘brown cards’ after treatments were administered and presenting these as if they were contemporaneous. Dr Balachandra’s alleged conduct was found to have been dishonest and she was erased from the dental register.
In reaching their decision, the Committee relied on evidence from two experts for the GDC, who opined as to whether the cards were true and accurate, and on whether they were retrospectively completed. The Committee attributed little weight to Dr Balachandra’s evidence.
BSG Solicitors represented Dr Balachandra in the regulatory hearing and the appeal.
The appeal
A key issue for the appeal was whether the ‘brown cards’ had been prepared and provided for inspection contemporaneously or retrospectively created to cover up failings. The original clinical records were regrettably not available as they had been lost or destroyed by either the GDC, NHS England, Capita or their agents during the scanning process. The scanning of the records was incomplete and inaccurate.
Mr Justice Ritchie critiqued the processes followed by the GDC, setting a precedent for how allegations of professional misconduct, especially those involving claims of dishonesty, should be managed within regulatory bodies.
One of the issues was whether the experts had the ability to comment on the issue of whether documents had been fabricated. Of this, the judge stated:
“Julian Scott retired from dental note making long before he wrote his report. Further, he stopped working for the Dental Board in 2008. In my judgment he is not an expert in handwriting or the authenticity of documents generally or in identifying fraudulently backdated Brown Cards in the circumstances of this case which involved a fully qualified dentist working in her own practice.
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Importantly, Mr Scott withdrew his allegations in relation to backdating the Brown Cards in cross examination, a fact that the PCC wholly ignored in their findings. He accepted in cross-examination that he made no reference to the Darlington scanning issues and changed his evidence on the implication that the Brown Cards were not delivered to NHSE in 2017 in his reports.”
The judge concluded that: “…not only was Mr Scott unqualified to give that evidence but…the absence of the original records was polluting the PCC’s ability to hold a fair hearing as they were asking him to comment on a two-dimensional copy and to expand it to three dimensions and advise on what was inside.”
Mr Justice Ritchie also had concerns as to the GDC’s other expert stating:
“Professor Morganstein was no better qualified to opine as a handwriting or document authenticity expert on fraudulently backdated notes on the facts of this case than Mr Scott. Certainly, he had expertise in the necessary content of clinical notes but not on whether their form, layout, handwriting, headings, prose and gaps indicate fraud. These were matters of pure fact for the tribunal and an expert in handwriting and document authenticity.
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Crucially, Professor Morganstein specifically caveated his opinion on the authenticity point by advising the GDC to get comparable Brown Cards from the practice from before and after for The 11 and for other patients. The GDC ignored that advice. They never went to the practice. They never asked for comparable cards.By failing to do this they deprived the Professor and Mr Scott of the ability to assess whether the Appellant wrote similar long-hand Brown Cards for other patients. I was informed in submissions that the GDC never visit the practice which they are making charges against. This, if correct, is a self-limiting approach to the quality and scope of their investigations, for which they take responsibility.”
The judge also found that: “The Appellant’s evidence was not analysed by the PCC. It was criticised as evasive and defensive but no foundation for those findings was provided. I take, as an example, one of the key paperwork justifications relied upon by the GDC’s experts: the lack of flow of the records for patients 6 and 7 (the page 1/page 2 point). The Appellant’s explanation for that was simple: she did the X-rays, analysed them, then wrote her findings down in detail. Then she wrote “continued”, started a new sheet because she had run out of space on Page 1, and summarised the appointment from start to finish on Page 2. The logic of that answer is readily apparent, but the PCC did not engage with it or even mention it.”
The Court was extremely critical of the regulator concluding:
“As to content, for instance the Brown Cards on prescriptions and all the Cards for The 11, the finding that fraud was indicated because the hand-written notes dealt with the clinical matters not set out in the ER, and hence identified as missing by DA, has a slight undercurrent of the 17th century practice of witch swimming. Witch swimming was the practice of tying up and dunking the accused into a lake to determine whether she sinks or floats. Sinking to the bottom indicated that the accused was innocent, while floating indicated a guilty verdict. In my judgment, without clear evidence of fraud, it is not a fair and balanced approach to say, on the facts of this case, in the absence of the originals, that if the Appellant does not have notes she is guilty of misconduct, but if she does have them, she is guilty of fraud.”
The judge quashed all of the findings of fact challenged by the Appellant as well as the erasure order and remitted the matter to the PCC for sanction.
Impact
The ruling serves as a reminder of the importance of appropriate expert testimony and the need for thorough engagement with evidence in regulatory proceedings. It is also a cautionary tale and a reminder for expert witnesses of their independent roles and the requirement to only give evidence in relation to matters within their expertise.
This case highlights the critical oversight functions of judicial review in correcting errors in professional regulatory actions. The outcome represents a significant correction of an unjust professional censure and reinforces the importance of integrity and fairness in regulatory practices. The High Court’s findings advocate for a fair and evidence-based approach to regulation, ensuring justice and fairness in professional governance.