Thread by @C_P_Resource

Hopefully starting soon the afternoon session of Day 36 of the Webberley Tribunal @tribunaltweets

13.33 checking everyone can hear. Question for IS - had the Panel got the correct date in para 5 'so far as the issue of relevance is concerned....' HW mentions it was written after 5th April 2019.

IS confirms this is the correct date. Now back to SJ. He takes the Panel to his response document and starts at para 52. Heads of charge relating to HW operation and control of Gender GP and related companies.

along side Dr M Webberley she operated Gender GP and provided care and treatment. One of issues is whether the date is a material averment or not, in the context of this case.

This is touched on tangentially in your written reasons. GMC position is that this charge can only be seen in the context of the time when, on her own admission, she was running Gender GP. Those dates are in the response document at para 55.

All of this goes back to the report of Dr Taylor C2 pg 635. This is a document the Tribunal needs to re-read in the wider context of this set of charges.

Para touches on whole issue of regulation. Panel knows elsewhere about issues to do with that and allegations that related to Healthcare Inspectorate in Wales (HIW)

Pg 636 goes into chronology set out by Dr Taylor - 11 April 2017 - he wasn't challenged about this. Dr W has controlling interest in 3 companies; Gender GP 2016 (?) and Online GP Services Nov 2014.

When we look at focus on Gender GP - Panel needs to look at these charges in context of all other evidence about alleged failures of Dr W - focus here is website in context of charge 25 and whether or not there was a duty on a doctor re publishing information

Para 70 of Good Medical Practice 2013. Dr Taylor wasn't challenged. Website states it offers free advice on all transgender issues, how to get service from GP... assessment, post op advice...'

In context of statement about counselling, blood tests and hormones, that can only go to issue of the giving advice and/or prescribing hormones. Once that issue arises, then in that context Q is, what was the duty of Dr W - what should the website have indicated?

This was in the context of advice and treatment to young people. Website says she is supported by a number of individuals, counsellors etc. Offers hormonal treatment to children but does NOT reference input of accredited paediatricians.

It's a matter for Panel's judgment but wasn't there a parallel duty in context of hormones and treatment of children, to identify that they can have access to accredited paediatricians.

And when offering advice to children, might be considered general good practice that for all children who seek to engage on this website, would be reference to a wider child safeguarding policy. [important point I think]

The GMC say there is a duty upon doctor to deal with these matters - and they were not dealt with.

In addition to services on website, Dr W also provides additional listed services. The online surgery UK. Scroll to 638 - touches on issue of where Dr Taylor states this is website of 'Dr Matt ltd'. Medications can obtain from affiliated pharmacy.

So this is Dr W treating patients on line via another company, tribunal therefore entitled to look at evidence at her conduct about the parallel online provision of services. This is supporting evidence.

She was registered manager, examined by regulator in 2017 and found not to provide a safe or well led service in accordance with regulations.

When Panel considering what other evidence will support the charges re failure, SJ invites Panel to have all these matters in mind.

SJ has already addressed charge 25, re charge 26 you have already made a ruling. Charge 27, Tribunal may take the view that there is no additional evidence on top of the admission. Against that background, those are all my submissions relating to those charges.

Tribunal have a few questions for SJ. 1st relates to charges 15-17. Asks for his submissions in relation to the words used on work details form. C2 682.

page 685 is where the questions lie. You may not want to answer the questions as you say the form is clear enough. But para 3.1 work details for current work. Is what word 'contractors' means in this context? [?]

SJ - 'contractors' we submit would include a cross pharmacy (?) - it's anyone with whom you have a contract. Dr W may say it was a limited company contracting but GMC say you need to take a broader view.

It's not appropriate for a doctor to refuse to lift the corporate veil and claim not paid direct by company. Out of hours services; 'contractor' self evidently comes from a contract to provide services.

Look at all language together, can only in reality include the provision of services to something like Frost pharmacy online. If one took away the veil and had Dr Bloggs personally providing on line services, they will need to give answer that Dr W should have given.

Are the tribunal going to apply a legalistic approach to the doctor's duty of disclosure when asked by her regulator? Is her duty of disclosure limited to her disclosure 'I work for on line GP services, end of story, won't tell you any more'.

IS was talking about Kafkaesque analogies yesterday and well... there you go.

Panel - its wide enough to embrace whatever services she provides, regardless of the guise of how she provides them?

SJ - maybe this is an issue Dr Taylor has experience of. Have to look beyond the word contractor and look at all the rest. They are all analogous and the same; can't isolate it. Why is this question being asked? Because GMC want to get to bottom of what this Dr is doing.

Extra ordinary if she could say - I only work for my own company, that's it, I have no duty.

Panel - do you have anything to say about reference to 'sub contractor'? Does it matter very much? SJ - again, we should not get too bogged down. Word can be interpreted in 2 possible ways. Dr W was providing services to Frost pharmacy through her corporate vehicle.

But also a contract between patient and Frost pharmacy. Like building a house. Primary and sub contracts. We can over complicate this. GMC say a duty in context of provision of medical services. Reality is Dr W was providing medical services to Frost pharmacy.

Language is not restrictive; it is permissive.

Panel 2nd question - para 21 indicates the review was initiated in July 2017 by [?] so period of review can't start before July 2017, but when did it stop?

So when making your submissions in relation to this, looking at material in C2 665 - please look. 661 is letter to board from Dr W solicitors 23 June 2017. 663 GMC investigating similar concerns. 665 we see paras under rubric 'GMC concurrent investigations'

Dr Taylor had previously referred these concerns and was advised in March that a full investigation had been opened. you said letter dated June 2017 and you observed it was far too late to be writing such a letter given GMC had opened case a long time before.

You observed duty was to refer to investigation promptly. But did period of review start in July 2017? What is failure on part of Dr W, if Dr W advised the board about the open investigation, or knew that the board had been advised of open investigation before the review started?

SJ: my focus on the timing of April or March was drawn from fact that was when the GMC investigation started and GMC say a duty to disclose immediately. But you are right to make point by reference to the charge. Trying to find the answer -

- Dr Taylor said at no stage did Dr W write to me to say the GMC had commenced an investigation. Question - if the board are alerted by the GMC or tangential references to investigation by Dr W's solicitors, is that sufficient to amount to a notification? That is q for tribunal.

SJ says AS SOON AS GMC investigation commenced, there was a duty to inform. Para 44 of my submissions. Dr Taylor never notified of ongoing GMC investigation into her practice. C12.

Letter of June seems to be the only document and would be within the period of review. if it is contended this falls during the review, its for the tribunal to determine if those references are sufficient.

'our client was aware the GMC were investigating similar concerns' - its a question of interpretation. Is that a notification of the current investigation and fulfilment of duty to inform? Dr Taylor and GMC say 'not'.

Reference to historic investigation - matter for tribunal. Regulation 9 of performance regulations - performer shall make declaration. Matter for you if that letter fulfills the terms of that requirement.

Panel - we will have to consider the review as starting in July. [so Dr W not in breach for not informing re investigations in June?]

Panel - IS do you want to address any points made by SJ
IS - I want to deal with ALL the points he's made. I will pick out one or two.

IS: charges 7 and 8. SJ has made no reference to the emails. Its as if he has put his fingers in his ears and said he is not going to take any notice. On GMC own account absolutely clear on 14 July they did not hold the record keeping system ?

The GMC response to this allegation is alarming and shocking. GMC say simply the records you have support the charges and thats the end of it. In other words, we are blinkered by the view we have.

SJ says only Dr W can answer question if other records. that cannot be right. GMC eventually went to look for material and admitted they never held the record keeping system. They made further inquiries and ? said they had destroyed records. GMC have not addressed this.

GMC tell you the records are sufficiently comprehensive - but how does he know! when the records are not there. Not appropriate for regulator to say, records have been destroyed and we will just rely on what we put in front of you.

Charge 8 - must exercise care. SJ makes points without careful reflection. There has to be some care and attention about allegations against Dr W. page 11 D18. looking at emails in August. SJ says evidence that Dr W fails to respond.

But look at what email of August 30th actually says! patient has responded to her response 12 hour earlier! one has to be so careful about these things and not jump into interpretation of material just to provide an allegation.

GMC haven't dealt with these emails because they have no answer. Not actions of responsible regulator.

Work details form starts at page 682. don't want to get into a detailed analysis, assuming Dr W is a lawyer. Allegation is that she dishonestly and deliberately failed to include Frosts pharmacy.

But question 3.1 is simply - are you working currently? and encompasses broad range of work. She has ticked box, yes I am. Where do you work? provide details of organisation and site. She has provided those.

She provides address of site as her home address. look at rest of 3.2. She has answered question accurately. When she answers in 2017 she didn't know 4 years down the line she will know SJ will say she should have put down other pharmacies.

Not beyond GMC to ask which other companies she worked with. Response to 1.1. already entered by the GMC. Dr W corrected the incorrect address. this is not some legal definition. Position is did she in 2017 deliberately leave out Frosts? and did so dishonestly?

She did not fail to declare she was sub contracted. Her company was contracted with a range of organisations. She put free lance GP.

IS: Will move on. next matter - 21b- 23. You have rightly drawn to SJ's attention, this is not the Wild West, not a marauding issue or moveable feast. Allegation is from July 2017. Very straightforward. Did she fail to advise the health board of the open GMC investigation?

What Dr Taylor says in 2021 - Dr W never notified us directly of GMC complaints, cannot recall direct notification despite this being a performance requirement. Dr W is not facing allegation she did not abide by reg 9 of the performance regulations.

nothing to say she must put this in writing. Allegation is 'failure to advise' and that is it.

Look at XX of Dr Taylor. No good picking out and incorrectly summarising a statement - must look at entirety of his evidence or what's the point of him coming along? Look at his XX.

Panel - you are repeating yourself, do you have the references to hand.

IS day 10, page 9, 10, 30 and 31. Essentially he says the position is, when I pointed out all the correspondence, Dr T said he WAS aware of it at the time but Dr W had not told them before the reference panel on 25th April.

Para 25 of IS skeleton. Dr Taylor said Board should have been informed in writing prior to 25 April even though she was aware the Board knew? One has to have a rigour of approach to these matters. Absolutely essential.

IS: Can I move to 24-27. a slightly unfocused marauding approach from SJ. There is a confusion about charge 24, it makes no allegation. 25 - it is right that Dr Taylor refers to no accredited paediatrician or safeguarding policy.

But principle point is - where is the evidence that the absence of reference to either or both of these items on a website is a failing? Where is the duty to include them on a website?

SJ said its a matter for the tribunal's judgment - with respect it is NOT. That is not a matter that is within the knowledge of individuals and requires expert evidence. Guesswork as to whether there is a duty to include on website a paediatrician.

Does there have to be a safeguarding policy or reference to it on the website? We don't know as don't have appropriate website documents. Not a matter for judgment of tribunal, not appropriate for a lay tribunal, with great respect.

Question is - what is the duty to include matters on website?

Panel - one question re the emails re para 7 and 8 D18. as I understand it SJ is challenging your right to rely on these emails as don't form part of corpus of evidence provided by GMC. In evidence because you put them to Dr Parker but not put to any witness of fact.

Therefore SJ saying the tribunal ought not to consider these emails on your submissions of no case to answer.
IS - it is a slightly remarkable point for GMC to take! this is material in GMC's possession for some considerable time.

The point is really this; the emails ARE in evidence, they have been provided to him and are evidence of online surgery. Relate to patient D and E. No issue. they have not been put to a witness of fact as GMC haven't called a witness of fact in relation to this issues.

I accept one of issues about weight and what exactly they might mean... but that is not issue. Do they form part of the case you have heard, and unquestionably they do. No objections to them being admitted.

SJ -can tribunal understand my position, not Mr Stern tell me what my position is.
IS - the tribunal told me!
SJ - the GMC didn't object to Dr Harker being asked about them. He indicated there was nothing in them that caused them to change his opinion re Dr W failing.

SJ - tribunal saw them in context of no case to answer, to support case that there are missing documents. Question for tribunal is, not to elide two sep issues. Is it fair for charges to proceed or what do these emails appear to demonstrate?

Do emails offer anything in assessment of no case to answer? GMC no, they do not. Not entitled to look at them as relevant in context of treatment of patients. Look at them as evidence for other emails to demonstrate missing records [don't understand]

IS is also confused - what is the GMC position re the admissibility of the emails? They are admissible, they are relevant. Not sure Dr Harker (? Harper?) saw the emails.

IS D18 page 5 - see next to number 10 there is an email from patient E. Dr Harker had Dr W's response to the rule 7 allegations. Don't know if redacted when given to him. There now appears to be no dispute they are admissible and can be relied upon.

GMC say they are evidence only of missing records.

Panel - thanks very much IS, we will retire now to consider our decision re application about no case to answer.

Panel Chair advice: Rule 17 2G fitness to practice rules allows submissions to be made as to whether sufficient evidence has been adduced and hearing should proceed no further. Test based on criminal case. R v Galbraith.

My advice is - the issue is essentially whether or not there is evidence, taking prosecution case at its highest on which a reasonable jury could find allegations proved. to be considered before defence calls evidence. Not function of Judge to choose between inferences.

He must proceed on basis that jury would find inferences favourable to prosecution. At half time the tribunal is considering if there are any inferences that favour GMC. But should look at all evidence - incumbent on tribunal, task is to decide if charge COULD be made out.

para 7 and 8 of allegation, I emphasise that must consider evidence in relation to each is particularly important as refers to Dr W prescribing to 2 different patients on different days. Based on GMC analysis on notes.

These notes are NOT complete. IS primary contention is that GMC case rests on notes and the allegations can't be proved without seeing entirety of notes. But alternative way of looking at it - would be an abuse of process to continue without complete or relevant notes.

In fairness to Dr W, Tribunal should look at matter on both basis. Counsel have referred to abuse of process, i remind us of the broad categories of abuse of process, relying on main authority R v Maxwell 2011. Lord Dyson - well established court has power to stay proceedings.

Where impossible to give accused a fair trial OR offends court's sense of justice and propriety to try accused. If first, stay proceedings without more, no balance. In second category, court is concerned to protect integrity of criminal justice system.

Woud proceeding undermine confidence in criminal justice system and bring it into disrepute.

Dr W cannot have a fair trial under 7 and 8 if tribunal do not have all the notes. The tribunal should not allow case to proceed because GMC have not sort to obtain further notes. Had they done so, they might have been before the tribunal.

Those are 'broad sweeps' about abuse element of this case. I also refer to the GMC point, based on Mackreth that mere speculation about what missing documentation might show, does NOT justify a stay for abuse.

to assess what prejudice caused to the defendant, the court should consider what evidence directly relevant to defence case has been lost due to passage of time. Speculation is not helpful. Court should consider what evidence survived.

Court must then examine missing evidence in context of case of a whole. This case is not primarily about delay, but there is missing documentation. These observations may assist the tribunal.

how does Tribunal go about assessing the relevance of missing documentation? Upshot of submissions, there is consensus that this tribunal is entitled to look at particular emails on issue as to whether or not other documents would have assisted Dr W in rebutting case.

Absent that documentation, can Dr W have a fair trial?

Can emails be considered in context of no case to answer? Find this extra ordinarily difficult. Dr Harker had considered emails and they are before this tribunal. As IS says, they appear to relate to the online GP service which Dr W maintained.

My feeling is that it is artificial to draw distinction between examining emails in one context but not another. I confess I have not reached any really clear view as to what use these emails can be put. they are in evidence, albeit emanated from the defence.

All I can say is that the tribunal will have to consider respective positions of IS and SJ.

Other aspect is that documents before tribunal only emanated from one dashboard, the administrative dashboard. are other relevant documents available or might have been?

Re question of abuse, tribunal also needs to be aware that there are safeguards built into trial process re abuse. In particular the opportunity for the defence to give evidence - Dr W can give evidence if case proceeds. Defence can remind tribunal of missing documentation.

given those safeguards it is relatively rare for a trial to be stopped on abuse of process on EITHER ground.

Re 15-17, significance of IS submissions. Para 17 is allegation of dishonesty, consequent on 15 and 16 being proved. IS challenges if 15 and 16 are capable of proof. If he succeeds on that, will be the end of those charges.

If he fails in submissions of no case to answer on 15-17, won't address you on issue of dishonesty.
Don't have advice on other matters, save to observe may be necessary for tribunal to construe some of the terms that relate to paragraphs, e.g. meaning of word 'failure'.

It means there was a duty on Dr W to do something and she did not do what she had a duty to do.

That is the advice I offer.

The tribunal are masters of fact and law. Willing to answer questions.
Do counsel have any points in relation to the advice?

SJ - re considering each charge separately, endorse what you have said. but when tribunal looks at each charge, entitled to have regard to ALL of the other evidence to see if it assists you as probative of any individual charge.

SJ agree R v Mackreth is very important.
Case of R v Maxwell - urge caution in terms of relevance, look at Court of Appeal case that followed on from that.

Maxwell is one of cases where conduct of the PROSECUTOR is such that brings system into disrepute - this is not such a case.

Panel - acknowledge that Maxwell is a broad authority. Will look at R v E. all cases on their own facts. Point was to remind colleagues there are two broad categories.
IS: just a few things if i may.

IS starting point is burden of proving case is on GMC. however, in relation to issue of abuse, the burden is on the person applying for abuse, i.e. me

The balance of probabilities is the appropriate test.

The other matter in relation to cross admissibility. Need to look at it very carefully at this stage in the proceedings. Nothing has been proved at the moment. Only being asked on allegations before you, is there a case to answer?

Better to look at specific allegations than consider cross admissibility.

Last matter - D19 - trail of emails, GMC put together chronology. That is effectively an agreed document and an agreed factual position re evidence in this case. As if a statement had been read to you.

Panel - can SJ agree this?
SJ - happy to confirm. GMC generated the document and we don't resile from it.

Panel will now retire to consider the submissions of no case to answer and abuse of process. Unlikely we will have determination tomorrow; more likely on Friday. Not sitting on Thursday.

We will keep you informed as to when determination will be handed down. Will let you know when can reconvene.
Panel retires 15.19

Court clerk advises that we will have to message reception to find out when tribunal next sitting - @CultSwat can you alert the group? Looks like it could be Friday but NOT tomorrow or Thursday.