I have been asked to provide a comment on the current ongoing case of the GMC v Dr H Webberley. The Tribunal hearing is being held at the Medical Practitioners Tribunal Service (MPTS).
Firstly, this blog is an opinion on matters as they proceed, and I have no part in the case. I am merely viewing aspects from the outside, like many others. I am preparing this in a non-professional capacity, but I do have some experience at giving expert evidence at tribunal over many years.
I am getting updates from ‘live Tweets’ from the hearing provided from the Tribunal service and will see if I can get a press update as well. I am also thankful to @truesolicitor and others for their updates on this case.
In this case, and current tribunal hearing, Dr Webberley (Dr W) is accused of practising medicine outside the rules and regulations of the General Medical Council (GMC) during the period March -November 2016, A failure to hold a proper safeguarding policy, and (2018) a failure to be registered as a practice in Wales. But there is more to it than that.
This update is from days 11 & 12 and is brought to you by much fumbling in the marsh.
Day 11 (Thursday) of the public hearing after two days ‘in camera’.
We are not aware of exactly what was discussed over the last two days but it may perhaps have affected today and future days.
Today was mainly about evidence, what is evidence, what isn’t.
There are rules as to what is acceptable and what isn’t.
Also, there are rules about what counts as evidence. It is important, as I have said before that evidence is about fact.
Fact is vital in finding the truth.
Evidence that is hearsay or a reported fact, isn’t acceptable and would be challenged. However, where the evidence, hearsay or fact comes from can also be challenged or accepted. That may depend if you’re on the red or blue team.
Remember, the Prosecution (The GMC) are suggesting and trying to show that Dr W acted unprofessionally and incorrectly in prescribing medicine and/or treating patients without proper training or expertise.
The defence team are trying to prove that she did what she did with just cause, in an acceptable and appropriate manner and to the benefit and satisfaction of her patients.
So far, the witnesses for the GMC have been mainly GP’s, professors, and Heads of the NHS departments as well as their expert (Dr H).
None of these people are her patients but they have tried to show, via incomplete records - as it turns out, that she acted incorrectly. That aspect was undermined by IS on the production of more credible evidence on day 10, which the GMC had not obtained themselves.
The GMC have had over FOUR years to prepare for this case and have had plenty of time and access to records to collate and gather the needed evidence…..had they chosen to do so.
It was a surprise to the tribunal, that they today wanted to introduce another witness, that they had had 4 years prepare. Why?
IS (for the blue team) got very cross – in a legal Counsel sort of way – that the GMC are STILL presenting new evidence at short notice. This when they (The GMC) spent most of last week demanding the up-to-date statement from Dr W.
The GMC wanted then to recall a previous witness (Dr Gale- SG), again. IS isn’t happy about this game playing and told the tribunal hearing exactly that.
As I have said before, the coordination and scrappy way the GMC are dealing with the evidence THEY are bringing is very poor.
IS spent time explaining to the tribunal that the GMC had had 4 years to obtain evidence AND that evidence is from 2017 or before, and that it has been available ALL that time. He therefore feels it absurd it is only being produced now and he is not being given time to reflect on it and how it affects his client, Dr W.
In this case, the evidence that Dr W acted improperly can ONLY have happened on or before the alleged offenses and complaints against her.
In any case, long before it reaches trial, the evidence for prosecution is prepared and put to the defence. The defence has to have time to consider it, prepare and produce its own evidence and statements to counter those alleged offences. As such it is all based on information and evidence that had to be available at that time. FOUR years is more than enough time to collate, prepare and present a full case to the defence.
This is why IS is getting disgruntled about ‘new’ pieces of evidence being produced about which he is not aware.
The other aspect that IS gets disgruntled about is that the GMC are changing their mind on what they are prepared to allow and not allow. Today a statement prepared by a patient had been blocked by the GMC but now, they have said it is acceptable. Why? We are not sure. They must feel there is something in it they can use to help them.
It should be remembered that each team (red or blue) can be utterly biased towards their own client in what is and isn’t presented. An expert witness must not. They act for the court and present their opinion based on the evidence they have and their own expertise. They are nor permitted to be biased to one party or another at the exclusion of facts against one or the other. That is their job.
It is important. An Expert is there to help the tribunal (or judge) make is decision by clarifying points and giving an expert opinion. That does not mean every expert will have the same opinion.
A (normal) witness for either side, can ignore facts or aspects that don’t help their case. That is the job of the Counsel to find those gaps and exploit them in cross examination.
So, a Dr may be an expert in his field as far as either the red or blue team are concerned, but unless they are brought to the tribunal as an ‘expert witness’ they can ignore or not use certain aspects if it helps them.
This may perhaps have been the tactic employed by the GMC and Dr H on Monday (Day 10) when IS was able to show that the GMC case from that witness was flawed by being so weak on evidence and missing vital elements that will have affected the judgements being presented by Dr H.
The GMC have shown time and time again they just haven’t got their house in order in how they are presenting the case.
As it has been put, the GMC keep looking for new ways to find how Dr W did something wrong when the previous way fails or faulters. If so, that is not a way to bring a clear, positive, and robust argument to tribunal.
But what about the patients?
Part of today was IS presenting information to the tribunal regarding the performance of Dr W.
He presented various documents, emails, letters and statements from patients and others stating how Dr W had helped them or others and how her care had been requested or desired and how helpful it had been. He also laboured on how this care was needed due to the discharge and/or delays in getting treatment from the NHS.
IS presented correspondence from other legal advisers and a judge, as well as teachers and medical practitioners plus patients and carers.
To be fair in this blog, IS would produce positive information, as that is his job and blue team counsel. He will ignore any negative documents or other that may exist.
SJ (red team Counsel) got a bit upset and said that all this was from after 2016 and wasn’t allowed. He also said that a lot was irrelevant and hearsay. He then said that as people are not all named they couldn’t be called to the tribunal to be questioned, and thus the evidence was inadmissible.
SJ was left a little reeling when IS said, that names were available and they could be called if needed and indeed, some had offered to do just that. The chair agreed this could happen if needed. That is yet to be agreed.
Also IS stated, that the fact it was after 2016 WAS important for the blue team. This was because it can only have come about AFTER the complaint and allegations were made about Dr W as it was evidence prepared in support of her case. That is not to say he wont use information and evidence at or before the allegations where this helps him.
That did seem to leave the red team a little dizzy from those punches. Not only had they been unsuccessful in having the evidence dismissed, it could then be heard in tribunal (in this or the later stage) as witnesses were prepared to come and be examined on it.
With the earlier difficulties in being able or unable to bring new (late) evidence to tribunal, it wasn’t the best day for the red team. This added to the matters earlier in the week from the undermining of their witness evidence base.
Dr W has yet to stand and give evidence and that will need to be heard, examined and cross examined. She would hope to fight the case and build on the gains thus far made by IS, but will SJ be able to find the holes in it he needs to convince the chair and the panel of the prosecution cases to move forward to part 2? He would hope so.
I am not certain, but it is a possibility, that if the panel feel the level of and strength of the case being bought by the GMC is insufficient at this stage (stage 1) the hearing could end there with no case to answer. I would say such an outcome couldn’t be ruled out, but it isn’t certain either.
Day 12 (Friday) turned out to be a very short day. Maybe everyone wanted a long weekend after having sat for a whole two days this week and having had two other days ‘in camera’.
The session was supposed to commence at 10:00am, but actually started at 10:55am and was all done and finished by 11:23!!
So, what happened in those 27 minutes?
Well, not much, but then quite a lot.
IS had previously presented a document with a series of bullet points which set out the evidence and points they wished to bring to the tribunal in defence of this case.
The chair had reviewed the matter from yesterday and decided on what would be acceptable at this stage and what would not be. This decision sets out what matters for part of the defence from Dr W moving forward into part two (the formal hearing).
For the record, bullet points 1 & 6 were not admitted, but 2-5 are admitted. The chair stated he would email the written decision and reasoning as to why.
SJ. stated there were no witnesses today, but there perhaps should have been. One is allocated for Monday. However, the red team (GMC) offered a REVISED statement from one of their ‘key’ witnesses SG
It needs to be agreed by the red team, if this revised document is admissible and if the witness can be recalled, examined (SJ) and cross-examined (IS). That has yet to be resolved, with IS not being happy about this, as was the case from yesterday. The Chair will consider this later today and before Monday (day 13). That session is timed to start at 10:00 am
Today was about presentation of (more) documents, this time from the Blue team (Dr W)
But what of the Blue teams papers?
SJ [metaphorically] raises his hand.
But Sir, we can’t see the documents as we’ve got to pay for them!!! Cried SJ and the GMC after the witness statement was offered to the tribunal. The statement referenced some key study documents that when the GMC wanted to look for them, were behind a pay wall.
Odd you might think, and many did think that.
The point is, and why this is a bit naive of the GMC et al, is that IF they are the foremost professional body in the UK on medical matters, and pride themselves on setting and reviewing the standards by which Doctors and practitioners are obliged to follow, WHY WHY WHY are they not in possession of a subscription or have access to such papers?
Does no one have a credit card?
How much other learned information are they missing that they should have access too? Are such documents not in their own library?
So, with ‘much fumbling in the marsh’ the matter will be addressed in order the GMC can read the defence references intended to be used to back up their case. These are not the actual, defence but reference documents that are intended to show that Dr W has the level of expertise and qualification to do the job she is accused of not doing.
IS adding to the redness of faces by saying “I would have thought the GMC would have access to PubMed to be honest, but if they don’t, we can certainly arrange it for them.” Just to say that PubMed seems to be a free access site with links of documents to other web sites.
It's just another item of embarrassment to be added to the GMC list, which (worryingly) seems to grow daily.
SJ moaned that he could not pass on the statement as the paywall documents were unacceptable as they can’t be seen. The two protagonists will resolve this and ensure the GMC have access to them and a piggy bank, bless them.
SJ then said he had yet more amended information to present to the defence relating to a witness Dr K and notes from Patient C (Pt C). So having moaned about the lateness of information FROM the defence, SJ is now presenting updated in formation and new documents TO the defence.
IS confirmed that any documents from Dr W would be made available and there was discussion about the availability of a witness from Pt C
The chair then decided it was home time and off they jolly well went.
What have we learnt so far?
We have had the tribunal running for 21 days, but so far have only had 12 public days.
The case is being put by the GMC in a piecemeal and rather scrappy fashion for which a lot of credibility has disappeared in what, how and the quality and reliability of the evidence is being produced.
The GMC seem to need another credit card to access medical documents and research papers as they have spent so much money getting this far.
All the time DR W has sat waiting her turn. That turn will come and we will see what IS can produce from his box of tricks. So far, he has to have the upper hand in how the management of this case has moved forward. Hopefully, the tribunal has taken that on board.
Remember that the Tribunal panel are used to this sort of thing and will know a well-managed and fluent case from a disjointed and stuttering one.
At the end of the day, it is the facts that need to stand tall and must be the deciding factor.
Whilst I cannot judge this at the end of week 3, The Blue team would certainly be the happier so far in the proverbial dressing room.
All back on Monday for Round 4 that is week 4, day 13.
To be continued…../
Authored by Nicola Rose @Nicola2019