Looks as if the hearing is unlikely to finish in the allotted time.
The legal advice is contained in this thread by @mpts_hearing.
I've copied the legal advice tweets for those who are blocked.
twitter.com/MPTS_Hearing/status/1445667536175988744
We're back!
Chair: Thank you for your patience. I'll now read out the advice, firstly on burden of proof - rests on GMC, each para of allegation must be considered differently. The standard of proof is the balance of probabilities. A fact will be proved if the evidence
Chair: establishes, in the view of the Tribunal, that it's more likely than not to be true, or to have happened. standard of proof takes into account the probabilities that Dr W acted in particular way alleged in any of the charges.
Chair: A probability is extent to which sthing is likely to be the case. If an event is inherently improbable, it may take better evidence to persuade judge that it's happened than would be required if the event were mere commonplace. Does not mean a higher standard of proof.
Chair: There are no. of words on allegation which warrant interpretation, one is 'fail'. This alleges Dr W was under duty to do something she did not do. Tribunal will have to consider if she did not do it, if so without good reason.
Chair: May be simple issue but defence may challenge. there is some case law existing on this issue, important to remember not trying negligence, this is not introducing negligence test, to reflect that there may be more than one recognised body of opinion.
Chair: Bolam Test as, it's sufficient if a Dr follows a practice adopted by a rec body of medical opinion. If there is such a body of med opinion & it's followed, then the med pract will not be liable for any adverse outcome despite the existence of another med practice
Chair: that would have a different course which could/would have produced better outcome. It's not enough to show that there is a body of competent profess opinion which considers that there was wrong decision, if there also exists a body of profess opinion, equally competent,
Chair: which supports decision as reasonable. Differences of opinion & practice exist in the medical profession. Seldom one answer exclusive of all others to problems of profess judgment. Court may prefer one opinion to the other, but that's no basis for conclusion of negligence.
Chair: Bolitho (?) In action involving clinical judgment there' s 2 step procedure to determine the question of alleged medical negligence, whether the medical practitioner acted in accordance with a practice accepted as proper...by a responsible body of medical opinion...
Chair: whether the practice survives Bolitho scrutiny as being responsible or logical. That case law doesn't detract from standard of care whichTribunal should apply. standard is that of the reasonably competent GP with a special interest in gender care/ sexual health.
Chair: Expert witnesses give evidence, opinions to assist on matters of a specialist kind which are not of common knowledge. As with any other witness, it's the Tribunal’s task to weigh upevidence of the expert which includes evidence of opinion
Chair: & to decide what evidence they accept & what they do not. factors capable of undermining the reliability of expert opinion or detracting from credibility or impartiality may assist Tribunal in evaluating & assessing expert evidence.
Chair: completeness of the information available to the expert, whether the expert took account of all relevant information in arriving at the opinion, which includes information as to the context of any facts to which the opinion relates
Chair: The GMC & Dr W rely on hearsay evidence. Documentary evidence where the witness has not been called to give evidence. Whilst the evidence has been properly admitted, the Tribunal should consider...
Chair: There's been no opportunity to see the witness’s account tested under X-exam, eg as to accuracy, truthfulness, ambiguity or misperception or how witness would have responded to this process Weight of this evidence is a matter for the tribunal.
Chair: Lost or missing material could put Dr W at a serious disadvantage, in that docs & other materials which she'd have wished to deploy aren't before the tribunal. Tribunal should take this possible prejudice to Dr into account when considering whether GMC has proven
Chair: Like adults, young people aged 16, 17 are presumed to have sufficient capacity to decide on their own medical treatment, unless there's significant evidence to suggest otherwise. Children under the age of 16 can consent to their own treatment
Chair: if they're believed to have enough intelligence/ competence/understanding to appreciate what's involved in their trtment. This is being Gillick competent. A person lacks capacity if their mind is impaired or disturbed, which means they're unable to make a decision
Chair: Person must be given all of the info about what the trtment involves, including benefits & risks & side effects, whether there are reasonable alternative trments, & what will happen if treatment does not go ahead
Chair: If pts have capacity to make decisions for themselves, basic model applies, The Dr & Pt make an assessment of the pt’s condition, taking into account the medical history, views, experience, knowledge.
Chair: Dr uses specialist knowledge & experience & clinical judgement, & Pt’s views & understanding, to identify which investigations or treatments are likely to result in overall benefit for the pt. The Dr explains the options to the pt, setting out potential benefits,
Chair: risks, burdens, side effects of each option, including option to have no treatment. Dr may rec particular option which they believe to be best for the pt, but they must not put pressure on the pt to accept
Chair: Lord Scarman said, “nor has our law ever treated the child as other than a person with capabilities & rights recognised by law. When applying these conclusions to contraceptive advice & treatment be borne in mind that there's much to be understood by a girl under 16
Chair: if she's to have legal capacity to consent to treatment. Not enough that she should understand the nature of the advice given, must also have a suff maturity to understand what's involved. There's moral & family Q, especially relationship with her parents
Chair:long-term problems ass with emotional impact of pregnancy& termination & the risks to health of sexual intercourse at her age, risks which contraception may diminish but not eliminate. Dr will have to satisfy that sh's able to appraise these factors before he can safely
Chair: proceedon basis has at law capacity to consent to contraceptives. Proper course will be, as the guidance, seek to persuade the girl to bring parents into consultation & if she refuses, not to prescribe contraceptive treatment unless satisfied that her circumstances
Chair: are such that he ought to proceed without parental knowledge & consent. When considering capacity, there is also the issue as to whether the pt retainsnecessary capacity in the context of their GD &
other comorbid conditions.
Chair: Bell v Tavi in court of appeal judgment, it was held policy & practice under consideration in this case requires informed consent of child & parents before Tavi refers to the Trusts, again before either Trust prescribesPBs & before prescription of X sex hormones.
Chair: That is the regime under the NHS Specification which set up the Portman & Tavi clinic. But Dr W’s prescribing was not under NHS. She was working in a private capacity. Lord Scarman considered parental rights in Gillick
Chair: As Lord Scarman stated, that was a case about parental rights to determine whether a child who had capacity will have medical treatment terminates. Not a case about whether a parent of a child who lacks capacity or who is in agreement with the treatment proposed
Chair: may consent to that trtment on child’s behalf. Gillick was considered in AB v Tavi. Case where court was considering whether parent could consent to the ongoing treatment of PBs for a child who although competent, had not given consent b/c of lack of time or opportunity.
Chair: in the present case, the parent & the child are in agreement. Therefore, the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick compt in respect of the decision even where both the parents & child agree. In my view it does not.
Chair: In present case, in light of Bell decision, & the issues around Gk competence explained in that judgment, it hasn't been possible to ascertain whether the child is competent. In this case 2 options. If the child is Gk competent, she has not objected to her parent
Chair: giving consent on her behalf. As such, a Dr can rely on the consent given by her parents. Alternatively, the child is not Gillick competent. In that case, her parents can consent on her behalf.
Chair: in my view, whether or not XY is Gk competent to make the decision about PBs, her parents retain the parental right to consent to that treatment.
Chair: AB V Tavi, is there a special category of medical treatment requiring court authorisation, and do PBs fall within it? The Court determined that there was not. Follows that a parent can give consent to GAH if has not objected or if the child is not Gillick competent.
Chair: Dr W’s defence to alleged failure to inform Frosts of her suspension. I understand her case to be, she was no longer under an obligation to do so as she had ceased prescribing for Frosts before her suspension & she did not know that she was obliged to inform Frosts
Chair: Concerning matters she allegedly submitted to the IOT about being a member of the RCGP. Para 20 concerning her alleged failure to inform Frosts that she had been suspended. By the time tribunal will be considering dishonesty in paragraph 14 or 20, it will already have
Chair: decided whether info submitted to the IOT in para 10 was untrue & if Dr W knew she was required to inform Frosts. If the Tribunal find that the info was not untrue or was not required to inform Frosts, the respective allegation of dishonesty does not proceed.
Chair: Where it is alleged that Dr is dishonest, it's for the GMC to prove that dishonesty. It's not for the Dr to prove that he or she was honest. Burden of proof remains throughout the hearing on the GMC.
Chair: tribunal should determine whether the Dr's conduct, as it has found it to be was honest or dishonest by the standards of ordinary decent people. Dr W appears before the tribunal as someone of good character. She has not been convicted of any offence of dishonesty.
Chair: That is an important matter. It is something which the Tribunal should take into account in 2 ways. She has given evidence. Her good character ispositive feature which tribunal shld take into account in her favour when considering if it accepts what Dr W told us.
Chair: Secondly the fact that she has not offended in the past may make it less likely that she acted as the GMC alleges. What importance the tribunal attaches to this are for the tribunal to decide. The Tribunal may take account of everything it has heard about Dr W.
Chair: That's the legal advice I offer my colleagues gentleman & Dr W. I know we have spent some of day discussing legal advice, both IS & SJ have had input. Any other matters you want to raise?
SJ: just one matter, it was issue as to whether in context of capacity & or competence the issue of if tribunal need to consider may not have ben co-morbidities that may affect that, and account needed to be taken of that in consenting.
Chair: Thank you, I thought I had dealt with this - (reads back over previous) this was designed to deal with if he was able to give consent because of issues of capacity, that is the purpose of that para
SJ: Hearing you re-state it I am satisfied with that.
IS: I was going to raise same matter, notice para 20 'or other co-morbid additions' had entered, these weren't in earlier drafts. Strictly speaking as we discussed one does not talk about GD as being something relevant to co-morbidity & other matters we've talked about ADHD
IS: are not generally considered to be co-morbidities, more the language than the issue, I know you wouldn't want to cause upset
Chair: You are right, I think my language is not sufficiently skilled in this area, tribunal will have to consider capacity
Chair: where it is alleged that Dr W did not consider capacity and if relevant Pt did in fact have capacity notwithstanding other.
IS: I understand the point you've made now, of course there is no evidence Pt lacked capacity, no allegation of this,
IS: just of if Dr W assessed it, and q of recording it.
Chair: That's right. Thank you, this means that we're now in position to retire to consider our determination in relation to stage 1 of the hearing.