Keira Bell and Mrs A vs. Tavistock - Court of Appeal hearing 23 & 24 June 2021

[FindTheTruth]

The appeal hearing will be live streamed this Wednesday 23 & Thursday 24 June, 10:30am

Background

1. The High Court decided in Mrs A and Keira Bell’s favour on 1st December 2020 that puberty blockers and cross-sex hormones are experimental treatments which cannot be given to children in most cases without application to the court. Full details of the original case:

www.transgendertrend.com/keira-bell-high-court-historic-judgment-protect-vulnerable-children/

1. The High Court decided in the case of AB on 26 March 2021 thatPARENTScan consent to their children receiving puberty blocking treatment when their children lack the capacity to consent.

1. Court of Appeal 23 & 24 June 2021 Keira Bell and Mrs A’s legal team is dealing with legal submissions from 7 intervenors who want to see the judgement of the Divisional Court overturned. “A significant task in defending the judgement of the Divisional Court. We are facing very well resourced opponents – the Tavistock being funded by the State and the other intervenors”.

@colouringindoors

Decision today? 🤞🤞🤞

No. Could be weeks/months

For the judicial review decision to be upheld, the Court of Appeal will have to find that the Tavistock acted unlawfully. However, it seems the complete mess of the scientific evidence throws up so much uncertainty, that to prove the Tavistock's operating procedures are unlawful, which presumably would require them being outside of mainstream scientific thinking, would seem to be a formidable task.

The key takeaway here is that avoiding evidence gathering and thus avoiding creating a robust scientific framework is still paying dividends in supporting the gender identity ideology. A scientific version of #nodebate has been highly effective.

Dr Hilary Cass wrote to NHSE in May. Here's a link to the full letter:-

cass.independent-review.uk/letter-to-nhs-england-may2021/

One interesting thing she says is this -

Access and referral - Children and young people need ready access to services However, it is unusual for a specialist service to take direct referrals The risk of having a national service as the first point of access is that assessment and treatment of children and young people who have the greatest need for specialist care is delayed because of the lack of differentiation of those on the waiting list In addition, many children and young people have complex needs, but once they are identified as having gender dysphoria, other important healthcare issues which would normally be managed by local services can sometimes be overlooked"

In other words, children should be treated holistically in the first instance and the other conditions that many of them have need to be treated first. If they did this my guess is that the numbers of children still presenting as trans would drop dramatically because being 'trans' is a symptom not a cause.

Feel less despondent than yesterday but do feel the court wants to wiggle out of this.

twitter.com/svphillimore/status/1408070783889330179?s=21

Thanks for your very informative tweeting. It helped me make sense of a great deal going on that I couldn't get to grips with. (Still lost on much of it though.)

It's hard to feel otherwise. Did you get the impression the judges did a good job of trying to feel out all facets of this or did they seem to be led mainly by the question of "is this JR material"?

@nauticant

One thing repeated over the past two days and seemingly echoed by the judges is that in order to move forward in safeguarding, there will need to be specific legal actions, probably not judicial reviews, against medical institutions by individuals harmed by those institutions in respect of the harm they suffered.

Or the government could choose to intervene with legislation although they'd probably prefer to chew off one of their own legs to escape that trap.

Yes, and this is something that was raised in the Sinnott case wasn't it. It needs to be person specific cases being brought forward like with Maya. I'm wondering whether Maya's case may improve resolve wrt this now though, prior to her judgment most (I'd suggest) would be reluctant to step forward and bring a claim because 'transphobia'. Now we have a 'protected belief' in law, that might improve confidence? I think it's pretty shit that we're relying on individuals to put themselves out there like that, not just because of the financial cost but because of how exposed you are.

I think I read somewhere that the endocrinologists are at UCH?

Does anyone know if that's correct?

If so I think it will have been DS's lovely consultant. I do hope not.

The Cass Review website says “ The review will not immediately consider issues around informed consent as these are the subject of an ongoing judicial review. However, any implications that might arise from the legal ruling could be considered by the review if appropriate or necessary.

So that suggests that if the appeal court say "this is not the type of thing that can be judicial reviewed" then cass will consider the issue of consent - or is likely to.

I can kind of see why the court want individuals to sue the NHS instead of considering it at judicial review. But itscreally bad of it gets through all of these stages before a judge throws it out fir that reason. A medical negligence or similar claim would be presumable keira (of someone in that position) saying you prescribed this treatment, but i was not capable of consenting to it, and the evidence base was non existent, and this is the harm it caused me. It would use all the same evidence but to prove negligence or malpractice in that specific case rather than unlawfulness of the policy. And then the lessons from that would be taken on board and would influence the policy. It's a long way round.

I think it will be interesting to see what happens with the Sonia Appleby case. GIDS is not coming over very well in that. I think the Cass review would have to consider governance and safeguarding failures if SA wins. Where that would leave this case is interesting, if there is a strong indication that safeguarding was failing I could see this going to the Supreme Court if the appeal succeeds. How can you have informed consent if safeguarding is failing.

@NecessaryScene

Just that 99% of those on PBs went on to the hormones ...

Except that the Tavi's QC here has been talking about 28% of children stopping treatment, which he's citing as evidence it's not inevitable. Where's this number come from?

It would be interesting to know where this figure is from, since according to this response to a FOI request last year, GIDS don't even know how many children have been referred by them for puberty blocking treatment.

tavistockandportman.nhs.uk/documents/1866/FOI_19-20313_Puberty_Hormone_Blockers.pdf

Details of enquiry
How many children (under the age of 18) have been treated with puberty hormone blockers at the Gender Identity Development Service (GIDS) in each respective year from 2009 to 2019 inclusive?

Response Sent
The prescription and administration of hormone blockers is carried out, not by the Trust, but by other NHS bodies, such as endocrine clinics and primary care providers, following referral from the Trust. The records of such treatment are held on individual patient files and the Trust does not maintain a central register of such information from which the data you request could be collated

There's another FOI response here from a month later which says that the information is held on individual patient files and would be too expensive to extract.

tavistockandportman.nhs.uk/documents/1873/FOI_19-20328_GIDS_Hormone_Blockers_Prescribed_2018-19_and_19-20.pdf

The Trust records of hormone treatment are held on individual patient files within the free text notes sections and we cannot automate electronic collation of this data, as our computerised patient records system does not have a dedicated electronic field to collect this.We have estimated that spending a notional 20 minutes per patient file to identify, and extract such data for collation into such a report, would take 322 hours per thousand files, whichis beyond the 18 hours provisioned under section 12 of the FOI Act 2000.

Perhaps it's time for a new request if they have collated the information for the judicial review.

One thing I noticed was that yesterday at the start of the hearing one of the judges admonished counsel for the Tavistock over their "random use of statistics" and asked them to explain precisely what the statistics meant. By the end of today numbers were flying around without much challenge happening.

@CardinalLolzy

It's hard to feel otherwise. Did you get the impression the judges did a good job of trying to feel out all facets of this or did they seem to be led mainly by the question of "is this JR material"?

My feeling is that they were very keen to swerve any engagement with the 'social and moral' issues by focusing on the narrow point of what exactly was the illegality complained about. And I suppose I can understand that. This is such a minefield, it arguably is not appropriate for 3 Judges to start trying to wave flags and then get criticised for trying to make law or policy. It is much more appropriate territory for the Cass Review.

And unfortunately there does seem to be a potential procedural muddle in that the Tavistock were not the 'right' respondents or should have be joined directly by the Hospitals - who had to make their own applications to intervene. So if the court wants to duck this, it will be easy for them.

But I thought Mr Skinner for Transgender Trend did a superb job, bringing the focus back to just WHY the Divisional Court were so worried. the submissions of the Tavistock and the interjections of the Judges were making the Divisional Court sound like complete lunatics on their first ever JR outing - which we all know isn't true.

But whatever happens, the cat is out of the bag, we are talking about this, people are aware and THAT is a real victory I think.

I wrote this about the first day
thecritic.co.uk/what-is-the-bell-v-tavistock-appeal-really-about/

Today was much better! I think the CoA were definitely genuine when they said there was 'much to think about'. I don't think its a slam dunk. Some points they will have to grapple with, I don't think they can shovel it all into a bin marked 'procedural irregularity'. At the heart of it, is the court's duty to protect vulnerable children - that is an ancient jurisdiction.

Thanks Sarah, I was unable to listen in today and have been dipping in and out of this thread. I intend to catch up with your tweeting later so I really appreciate you doing it.

Thanks Sarah. I am wondering if the Court will almost be overtaken by events. If Sonia Appleby's tribunal finds in her favour then it is clear that there is a major governance issue at GIDS which may push the Cass review to suggest the whole service model needs reform.

I was surprised yesterday. I thought the judges would already be au fait with the judgement and evidence from the first hearing, how the first judges had come to their view, and that it would be for those appealing to demonstrate that the judges had got it wrong. but it felt like they were starting from the beginning again and the null hypothesis was that the defendant (tavistock) had done nothing wrong and it was for kieras team to demonstrate again that they had. It didn't come across as people trying to overturn a judgement made by experienced judges, but people trying to defend a judgement assumed to be wrong by people assumed to be dunces.

Thanks for your tweeting spero. Made a huge difference.

trying to defend a judgement assumed to be wrong by people assumed to be dunces.

By this I meant that the first judges were assumed to be dunces.

Absolutely bizarre judgement by the first judge IMHO

The High Court decision was made by several judge. You opinion would appear indeed to be humble.

I do think there is something not right with the laws around capacity. I use them everyday in my profession and it just doesn't fit with the reality of decision making in the ground. On the one hand we have this case. Judges don't want to get involved in dictating medical professional and patient decisions. We are all so caught up as professionals in thinking about capacity that people start to forget it is not the only ethical and legal principle. Then in other discussions we are talking about cases (micro and macro decisions and fluctuating capacity) which seems to translate to mean young women with personality disorder can never make decisions as they might have lost capacity very briefly at the time they made them . However do you then judge someone as lacking capacity or with with a disorder of mind making an unwise decision? It ends up a bit like a less extreme version of Britney Spears in the US. I can speak to a woman with anorexia and listen to her totally articulate view of why she should be allowed to continue with community treatmemt - I know her illness is affecting her decisions but if she is giving a perfect impression of capacity as the law states then there is something odd about the law itself. Different clinicians routinely make completely different decisions about people's capacity.

The issue about endocrinologist vs Psychiatrist vs non medical professionals is interesting. The endocrinologist will judge they cannot make a full judgement about risks and patients ability to weigh up as they are not experts in gender dysphoria and the Psychiatrists will not be able to judge weighing up and risks associated with hormones as they are not endocrinologist. Also, any mental health professional with doubt about the ethics of all this will not be choosing to do gender identity work so the group who do have a different view of the pros and cons that need weighing up.

The Bell case is really not the only game in town. As a few have noted, there has been so much coverage of this that if the JR overturns the original finding, on a technicality, and it will only be on a technicality, then there are so many other avenues, Cass, SA, Government.

There will of course be those who will cheer if the JR overturns but the reality will be that children will not be given puberty blockers etc unless all other avenues have been explored. The Bell case has shown that people do regret and now that there is exposure, any clinician prescribing a medicalised route, will have to be extra damned sure they are taking the right steps, or court decisions will be a walk in the park - you knew their were issues but you went ahead anyway.

Also, any mental health professional with doubt about the ethics of all this will not be choosing to do gender identity work

Mmm. There have been lots of people who had doubts about affirmation and medical intervention other than as last resort at places like GIDS, but they've ended up marginalised or pushed out.

And people who are really into medical intervention go and join WPATH. They then have their "Standards of Care", but actual medical orgs like the Endocrine Society are a bit more cautious and call them "guidelines".

WPATH have no actual responsibility chain here - if their "standards" cause harm, there's no recourse against them, right? They're not a professional body, there's no regulators covering them, and if professionals choose to follow their "standards" document, then that's their professional decision and responsibility. Nothing to do with WPATH, guvnor.

Necessaryscene - yes that's true. The more serious the concerns about the ethics of it the less likely to want to do gender identity work might be more accurate.

MizzleEyed, (Apols everyone for the slight derail) I think this is why 'executive capacity' has made its way into the room; they can talk the talk but can they walk the walk? I'm uncomfortable with this as a concept as well, how do you know whether someone has simply changed their mind, or whether their executive functioning is the cause (as a crude example)? I agree about capacity, it's tough and it's certainly not perfect, but I am pleased that we have it.