Tavistock Appeal Denied

[OhHolyJesus]

Appeal denied!!!

Lady Justice 👩‍⚖️ (@RadFemLawyer) Tweeted:
Permission to appeal to the Court of Appeal in the Bell v Tavistock case has been refused. 10 grounds of appeal were advanced. None succeeded, including an attempt at an Article 14 (discrimination) point which had not been suggested previously by the Defendant. twitter.com/RadFemLawyer/status/1335926918223433734?s=20

Anyone know what happens next?

From Transgender Trend July 2019:

Follow-up piece by Michael Biggs who has found more worrying evidence on the Tavistock experiment with puberty blockers

www.transgendertrend.com/tavistock-experiment-puberty-blockers-update/

It's really worth reading the judgement in full. About 40 pages and reasonably straightforward. And it's clear that most of the Twitterers objecting to it haven't taken the trouble to look.

Just wanted to comment on this:

^the Tavistock initiated in 2011, but that hadn't completed the peer review process and so wasn't ready.
You'd have thought, wouldn't you, that the Tavistock, knowing this case was pending, would have pulled out all the stops to get it completed in time?^

I know the judgement was quite incredulous ability how long this study is taking, but I'm actually sympathetic to the Tavistock on this point.

In the judgement, the study is described like this:

Until 2011 PBs were only available at GIDS for those aged 16 or older. In 2011 PBs started to be prescribed for those aged 12-15 and in mid-puberty. This was first done between 2011-14 at University College London Hospital (UCLH) under an approved research study known as the Early Intervention Study. The Study took an uncontrolled treatment cohort of 12-15 year olds with established and persistent GD in England. The Study recruited children for 3 years, but there was then a period until February 2019 when the last cohort member began the next stage of therapy (cross-sex hormones).

It makes sense that getting the data is really slow. It took them 3 years to recruit enough participants. They then have to wait up to 4 years per participant to get outcome data about progression to cross sex hormones. That meant that they didn't have all the date ready to analyse until February 2019.

It is reasonable to assume say 6 months of data analysis and paper writing, then at least another 4 - 6 months of revisions. More if the paper was rejected from the first journal they chose and had to be completely reformatted for submission to a different one. Academic publishing moves at a glacial pace, even when not in a pandemic.

So the fact that the study is not published yet is not surprising to me.

What is surprising is that they wouldn't submit either the draft or some of the raw data for the court to see.

@Floisme

The judgement refers to some research that, if I remember correctly, the Tavistock initiated in 2011, but that hadn't completed the peer review process and so wasn't ready. You'd have thought, wouldn't you, that the Tavistock, knowing this case was pending, would have pulled out all the stops to get it completed in time?

IIRC, after the Tavistock said they didn't have the research because it was being reviewed, didn't the judges ask Tavi to give them just the general gist of the research, and Tavi wouldn't? Or am I misremembering that bit?

Ah, InvisibleDragon answered my question in their last paragraph.

@Floisme

It's really worth reading the judgement in full. About 40 pages and reasonably straightforward. And it's clear that most of the Twitterers objecting to it haven't taken the trouble to look.

Well, that’s a lot of characters to read and I doubt there’s many memes in there.

www.judiciary.uk/judgments/r-on-the-application-of-quincy-bell-and-a-v-tavistock-and-portman-nhs-trust-and-others/

Well, that’s a lot of characters to read and I doubt there’s many memes in there.

Someone should draw a cartoon version, with anime characters and furries to make the judgement more accessible.

Yes indeed. Thanks Invisible and Yourhair. Here's the link if it's not already been posted:

www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf

The overall lack of data from the Tavistock was quite extraordinary I thought.

What is surprising is that they wouldn't submit either the draft or some of the raw data for the court to see.

It would be even more surprising if it turns out that they would not submit either the draft or some of the raw data when it would have been supportive to their case.

What is surprising is that they wouldn't submit either the draft or some of the raw data for the court to see.

This is what I don’t understand. Peer reviewing is surely to check that the methodology was sound and that the conclusions can reasonably be inferred from the data collected. But the actual data must have been collected and analysed in some way.

Reasons to not submit the data:

• it is irrelevant to the case
• it doesn’t show what you want it to show
• it has been rejected as fundamentally flawed by the first attempt at peer review and you don’t want to publicly admit how biased you are as that would undermine your case

If I were a betting person I’d put money on it being a combination of all three.

None of the first instance judges will be able to hear the appeal. It will be heard by three judges in the Court of Appeal (if permission is granted).

It’s very common for the High Court to refuse permission to appeal and isn’t really anything to celebrate. If they had given permission, they would have had to agree that their reasoning was wrong.

I suspect that the Court of Appeal will grant permission. Where I think there is a potential weakness in the case is that the HC explicitly said that the patient must appreciate the implications of not only the current treatment (PB) but also of a future treatment (CSH). That’s where I fear that the Court of Appeal might come to a different conclusion (although there is a further potential appeal to the Supreme Court if so). Hopefully it will be enough for the court that PBs themselves are experimental in nature but I don’t want to count my chickens before they hatch so I will be waiting to hear how the appeal application goes.

and one was a Lord Justice - a judge of the Court of Appeal

Does the fact that this was a Court of Appeal judge strengthen the judgement at all? Would he, being highly aware of weakness that are open to scrutiny, have tried best to make it bulletproof, if that makes sense?

(Sorry for all the questions, I find law fascinating.)

@yourhairiswinterfire

and one was a Lord Justice - a judge of the Court of Appeal

Does the fact that this was a Court of Appeal judge strengthen the judgement at all? Would he, being highly aware of weakness that are open to scrutiny, have tried best to make it bulletproof, if that makes sense?

(Sorry for all the questions, I find law fascinating.)

I think the fact that two of the judges were very senior certainly gives more credibility to the judgment. All judges from the High Court upward are exceptionally good at what they do though and try their best to make their judgments robust and difficult to challenge but they still sometimes get overturned.

We’ll just have to wait and see. The total lack of credible evidence by the Tavistock is a good thing though. It makes it harder for the Court of Appeal to find fault with the High Court’s reasoning.

From another thread. Perhaps they would like to submit this talk by Aidan Kelly, psychologist at GIDS where he admits they haven't a clue. Or perhaps not. Or we could do it for them.

--------------------

This is a 2018 conference lecture by Aidan Kelly. He’s a consultant psychologist at GIDS and runs a private gender service for under 18s in London (seems to follow NHS assessment pathways, by the look of his website: www.kellypsychology.co.uk/gender).

He travels to Ireland regularly to run the Dublin version of GIDS, which the Irish service pays NHS England to provide under the ‘Treatment Abroad’ scheme (presumably it’s cheaper to bring a couple of clinicians to the kids than it is to send all the individual kids to London)

I haven’t watched all 45 minutes of it yet, I wanted to share it with FWR while I had the time stamp open. He starts out explaining what GIDS is and how it referral and funding works in Ireland and then, around ten minutes in, starts explaining what they actually do - I got as far as his admission that it was experimental and there wasn’t much available evidence and then when he started admitting that blockers ‘aren’t benign’, I figured I’d pause and see if anyone here wanted to watch along with me.

youtu.be/kPlCGBBcw90?t=590

It would be even more surprising if it turns out that they would not submit either the draft or some of the raw data when it would have been supportive to their case.

I see no reason why they shouldn't submit a paper that had been out to review as evidence. It would be even better if the reviewers allowed their comments to be submitted too. It's becoming best practice to be open about all stages of the publication process. They could have even put out a preprint!

My only conclusion can be that the paper is absolute trash and the reviewers have been forthright in saying so.

@Datun

Are appeals usually upheld by leapfrogging over a High Court refusal like that?

Yes, what will happen is that they will make an application to the Court of Appeal and must show why the decision in the lower court was wrong in principle.

The only time you can appeal is where the decision of the lower court was wrong in law or on the facts; or it was seriously unjust because of a serious procedural or other irregularity in the proceedings in the lower court or the result would represent a substantial injustice.

Their application will be looked at by a single Lord or Lady Justice of the Court of Appeal who will decide if they have an "arguable" case.

If they have an "arguable" case they will be granted permission to appeal, if they don't then they will be refused permission.

I think that @Abitofalark made a very important point:-

It's an indication of how seriously the High Court viewed this case that it sat with three judges rather than one and even more when you look at who they were: one was the President of the Queen's Bench division, the most senior High Court judge in that division and one was a Lord Justice - a judge of the Court of Appeal - and the third a High Court judge.

When you look at who was sitting in this case and the detail of the judgment and also the detail of the reasons for refusing an appeal (the latter linked to by the OP in this thread) I think it unlikely that any Court of Appeal judge would find an application for appeal would be "arguable". But, who knows?

I think that the fact that the President of the Queens Bench was sitting is very important (she is actually also a Lady Justice of the Court of Appeal as well so also sits in the Court of Appeal) as well. So, effectively, there were two judges from the Court of Appeal who were deciding this case (albeit that they were sitting as judges of the High Court at the time).

I really cannot imagine the Court of Appeal even thinking about overturning this decision.

What little experience I have is in the area of family law and, in a similar manner, this would be like a decision of Sir James Munby (the former President of the Family Division and also judge of the Court of Appeal) being overturned by the Court of Appeal - it really just never happened.

What is surprising is that they wouldn't submit either the draft or some of the raw data for the court to see.

Yes, the lack of any more recent data compared to their presentation of very early results in 2014-15 is odd. There is the paper they presented at the WPATH meeting in 2014 (referred to in the judgment, para 73), and last year in response to a FOI request they included some more publications and presentations about this study.
tavistockandportman.nhs.uk/documents/1845/FOI_19-20011_GIDS_Research_Information_with_attachments.pdf

This is one of them from April 2015: Early medical treatment of gender dysphoria: baseline characteristics of a uk cohort beginning early intervention.

So in 2015, they were prepared to present their early findings in which they said that of the 61 patients they had recruited to the study:

50 patients (81.9%) elected to receive GnRHa following full explanation and informed consent at Tanner stage 3, following international guidelines. GnRHa could not be commenced immediately if pre-pubertal (10/61), having very low bone mineral density (3/61) or low body mass index (BMI) (2/61). All who began GnRHa achieved full gonadatropin suppression. No young people withdrew from GnRHa treatment in the first 2 years.

This was less than a year after they completed their recruitment for the study (July 2014). They now claim to have a paper almost ready for publication, and yet they couldn't present any of the findings to the court. That is odd.

Look at the response to Ground 9 of the application for appeal!

Seems the Tavi attempted to appeal on (amongst other grounds) the basis that a particular individual (‘S’) had been denied the opportunity to intervene by submitting written evidence. In fact....this individual, using a different initial, had already submitted a witness statement that was put in evidence by the Tavi. This fact was not disclosed when S applied to intervene.

This is a NHS body. It’s behaving like a dodgy oligarch trying to get out of paying his wife a settlement, playing fast and loose with rules of evidence. How on earth can a public body behave like this?

My jaw just hit the floor on that one.

I really cannot imagine the Court of Appeal even thinking about overturning this decision

I hope you’re right. As I said, I fear that the requirement for a child patient to also consent to CSH even though that isn’t currently being prescribed might be the chink in the armour. I definitely wouldn’t want to place a bet on the outcome of any future appeal.

As I said, I fear that the requirement for a child patient to also consent to CSH even though that isn’t currently being prescribed might be the chink in the armour.

I’ve been thinking about this from an adult perspective. If 100% of patients taking drug A (migraine suppressant) also end up needing drug B (anti-nausea) the doctors (ime) explain the full implications of both before you start. They can’t reasonably tell you to take drug A and then only explain drug B once you are already taking drug A. For all intents and purposes they form part of the same treatment.

If 50% of patients taking drug A also need drug B, it is my experience that doctors will tell you that and give a brief outline of the implications of B (with the chance to ask questions). But the doctors don’t go in to nearly as much detail about drug B, because taking it isn’t a foregone conclusion at the point I agree to drug A.

I’d assume if 95% end up needing both, we’re far closer to my first scenario (where I’d damn well expect to be told and understand both drugs) than my second one. Presumably there’s some case law (or agreed medical ethics?!) to determine how far away from to 100% “follow on rate” you’d need to be before full understanding of drug B is no longer required.

I fear that the requirement for a child patient to also consent to CSH even though that isn’t currently being prescribed might be the chink in the armour.

From para 22 of the judgment about the lack of published data about the study: The Study recruited children for 3 years, but there was then a period until February 2019 when the last cohort member began the next stage of therapy (cross-sex hormones).

This implies that all the children in the study were eventually prescribed cross-sex hormones. There is also the evidence from Dr de Vries from the Amsterdam clinic which was the sole source of published peer reviewed data produced to the court (para 57):

She says that of the adolescents who started puberty suppression, only 1.9 per cent stopped the treatment and did not proceed to CSH.

There is a reasonable assumption that puberty blockers are followed by cross-sex hormones, since in more than 98% of cases this is what happens. It would be hard to argue that the two are not linked and two stages of a single treatment programme.

Thanks everyone for the detailed explanations. They're fascinating.

Yes, it's really interesting and very reassuring to have such detailed knowledge. Thank you to everyone.

It was my understanding that the interim reports that Michael Biggs analysed concluded that puberty blockers could actually exacerbate the gender dysphoria in the children. Thereby making them more likely to go on to cross sex hormones, on the basis of taking puberty blockers.

So not just connected by chance, but inextricably linked.

Taken from OldCrone's comment:

"From para 22 of the judgment about the lack of published data about the study: The Study recruited children for 3 years, but there was then a period until February 2019 when the last cohort member began the next stage of therapy (cross-sex hormones)."

Maybe I'm dim but doesn't the phrase the next stage of therapy imply that the PB are just part of a larger continuum rather than the independent harmless pause we were being told they were.

I imagine that is the killer point that was being made. But I am very tired.