‘Witch Swimming’ – the High Court’s Deprecation of the GDC’s approach to proving fraud in Balachandra v The General Dental Council [2024] EWHC 18 (Admin)

On 10 January 2024, Ritchie J handed down the Court’s decision in the case of Balachandra. The Court’s determination was, in short, that a number of the allegations which the Professional Conduct Committee (“PCC”) of the GDC had found proven in Manori Balachandra’s case were not well founded, and the appeal was allowed in respect of them. The Court’s decision contains a number of observations which, although fact specific, go to the heart of how regulators should approach proving allegations of fraud or dishonesty.

The Facts

The Appellant had faced a number of allegations before the PCC, but the central allegations focussed on failing to keep accurate records – in the form of paper ‘brown cards’, and subsequently providing false ‘brown cards’ which the GDC averred had been retrospectively created to cover up obvious gaps in the Appellant’s records.

The litigation history appears to have been storied, with a litany of issues arising in respect of the documentary evidence which was to be placed before the panel to demonstrate the provision – or lack of – of the initial ‘brown cards’.

The GDC relied on expert evidence, which sought initially to opine as to whether the cards were true and accurate, and on whether they were retrospectively completed. In the event, the expert evidence appears to have stepped away from giving opinion on matters which Ritchie J identified as “wholly a matter for the PCC not him”.

The PCC’s findings were that all of the allegations regarding the brown cards were proved, notwithstanding evidence from the Appellant to the contrary, and evidence from the Appellant’s representatives which spoke to possession of records well before they were said to have been fabricated. In respect of the latter, the PCC dismissed the evidence, noting “the information he provided did not assist the committee with what you sent to the NHSBSA in 2017”

The Appeal

The Court’s decision, and Ritchie J’s comments within the judgment are sufficient to cause any regulatory practitioner, particularly those with experience on the side of regulators, feverish nightmares.

The panel concluded that the evidence of one expert, Mr Scott, was reliable and to be preferred. Of this, Ritchie J 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.

…

 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.”

In respect of the PCC’s conclusions regarding the Appellant’s evidence, he said the following:

“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’s damning conclusion on both issues relating to the brown cards was as follows – at Paragraph 141:

“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.” [Emphasis added]

Analysis

The decision to erase the Appellant from the Register was, unsurprisingly, overturned, and in light of the Court’s decision to allow the appeal in respect of the fraudulent allegations, the matter was remitted to a fresh panel for determination as to sanction.

It is hard not to be put in mind of the aphorism “absence of evidence is not evidence of absence” – something which the PCC in this case appear to have overlooked.

More broadly, the judgment in the present case follows a line of authorities from both the England and Wales and Scots courts, which have been wrestling with whether the Supreme Court’s decision in Ivey is directly applicable, and how it is to be interpreted in line with pre-existing authorities within the context of professional discipline. Indeed, the Inner House of the Court of Session in the decision in McLennan v GMC [2020] CSIH 12 made efforts to reassert the primacy of Ivey and move away from the confusion generated by wording used in cases like Lawrance v GMC [2015] EWHC 586 (Admin) which tried to interpret the principles in In Re B [2009] 1 AC 11. The Court’s decision here, appears consistent with that approach from McLennan. The Court of Session there, noted:

“[74] Equally, there ought to be cogent evidence before dishonesty is found. In that respect, the court agrees with Lawrance v General Medical Council [2015] EWHC 586 (Admin) (Collins J at para 35). However, the use of such axiomatic language does not detract from the general legal proposition that the test to be applied in determining whether a crucial fact, including dishonesty, is to be found remains the balance of probabilities (cf Walker & Walker: Evidence (4 th ed) para 4.3). Is the fact, on the whole relevant evidence which is accepted by the Tribunal, more likely than not to be the case? 

[75] In approaching the exercise of deciding the critical issue, a Tribunal should keep an open mind, untinged by any preconceived general notions that dishonesty is less likely than not to have occurred or that it is inherently improbable, especially when the person accused is one of good repute. Whether dishonestly is made out will depend entirely on what facts are ultimately admitted or proved and what inferences can legitimately be drawn from them. If, for example, there is a lack of coincidence between what a patient is proved to have said at an examination and what the doctor reports that patient to have said, and the disconnect occurs on multiple occasions, it may not be too onerous a task for a Tribunal to draw an inference of dishonesty, even if it need not do so in particular circumstances.”

Both the Court of Session, and the High Court here, appear to be attempting to guide regulators back to a focus on evidence and away from complexities introduced by a varying approach to the burden and standard. That said, just because the burden is simply the balance of probabilities, that should not mean that panels make findings based on a confused view of the evidence. That, it would seem, will lead to the High Court making some intensely unwelcome comparisons, ‘witch swimming’ being just one example.