I’ve heard that sometimes when a report author finds out that the patient’s representative is arguing for disclosure the author decides to withdraw the report – and the tribunal panel goes along with this (having decided whether they can hear the case or whether there needs to be a fresh panel).
I just wonder how the tribunal gets round rule 32(3):
(3) Subject to rule 14(2) (withholding evidence likely to cause harm), when the Tribunal receives a document from any party it must send a copy of that document to each other party.
I’m not sure why it would fall foul of the rule, unless I am misunderstanding what the question is, because each party does get a copy… The patient’s representative gets one and the Responsible Authority gets one.
Rule 14 distinguishes between disclosure to a party and disclosure to a party’s representative.
I probably haven’t asked the question clearly. Maybe it’s a stupid question. I suppose what I mean is that without a rule 14(2) non-disclosure order the representative should ordinarily disclose the document to the patient (with the usual practical exceptions for patients with dementia etc). It seems that here the tribunal isn’t making a rule 14 order, because it’s proceeding as if the document doesn’t exist.
I’ve come across this but I don’t adhere to what some panels suggest is “standard practice”. I’ve heard suggestions that the author should withdraw the report so R.14 doesn’t have to be considered. My response is usually to remind them of my obligations to disclose relevant information, and that I don’t consider any exception under the SRA rules to apply. It usually leads to the panel agreeing to disclose.
It can feel as though I’m being difficult, but I don’t think it is good practice to proceed on the basis that a document does not exist. First, it risks giving rise to apparent bias. Secondly, even if a panel is capable of putting the material out of its mind when reaching a decision, there remains a risk of unconscious confirmation bias where the decision may be influenced by the material but the reasoning does not transparently reflect that.
Almost every case I encounter with a ‘non disclosure’ request is complete nonsense and largely requested because hospitals don’t seem to give their staff any proper training on tribunals, let alone the relevant tribunal rules
The ‘let’s pretend it doesn’t exist’ approach troubles me but I don’t think I’ve ever come across a case where the information put the client at a disadvantage. Improperly argued non disclosure requests just make the people making them look daft.
I would be interested to hear if anyone has asked a panel to recuse themselves on this basis though.