Dr Helen Webberley v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 734 (Admin) |
| Docket Number | Case No: CO/2811/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 734 (Admin)
Mr Justice Jay
Case No: CO/2811/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jamas Hodivala KC (instructed by Gunner Cooke LLP) for the Appellant
Peter Mant (instructed by GMC) for the Respondent
Hearing date: 14 th March 2023
Approved Judgment
This judgment was handed down remotely at 10:30am on 31 st March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
Dr Helen Webberley (“the Appellant”) is a registered General Practitioner with a special interest in sexual and transgender medicine. She has operated a website called “GenderGP”. Her practice was investigated by the General Medical Council (“the Respondent”) and in due course charges were brought in relation to her treatment of three transgender children, Patient A, Patient B and Patient C.
There was an 85-day hearing before a Medical Practitioners Tribunal (“MPT”) (including deliberation), spread over the course of about one year. Both the Appellant and the Respondent were represented by counsel who are no longer instructed. There were over 20 allegations and sub-allegations, but in the end the only one that mattered was Head of Charge or Allegation paragraph 5(d)(iii) (“para 5(d)(iii)”), which provided, as amended, as follows:
“5. Following an initial consultation with Patient C on 9 November 2016 you failed to provide good clinical care in that you:
d. Advised Patient C as to the risks of GnRHa before commencing treatment without
iii. discussing the risks to Patient C's fertility;”
Although adverse findings of facts were made against the Appellant on other limbs of the charge, the only one which led to a finding of impairment of fitness to practise and a sanction was para 5(d)(iii). In the result, on 30 th June 2022 the Appellant was suspended from practice for a period of two months with a direction that a review hearing take place before the end of the suspension period.
The Appellant now appeals under section 40 of the Medical Act 1983, as amended, against the findings of fact, misconduct, impairment and sanction in relation to para 5(d)(iii).
ESSENTIAL FACTUAL BACKGROUND
I derive this from the parties' skeleton arguments and the documents in the core bundle.
In order to set the scene, I must begin with three points.
First, children who are assigned female at birth and who identify as male typically undergo any requested medical intervention in two stages. The first stage involves the administration of a GnRHa (gonadotropin-releasing hormone agonist) or puberty blocker. This relieves the child from the acute distress of puberty and has the practical consequence of giving him time to reflect on his choices. The second stage involves the administration of testosterone which, in the circumstances I am addressing, operates as a gender-affirming or cross-sex hormone to induce the secondary sex characteristics that match their gender identity.
Secondly, it was clear on the evidence before the MPT that stage 1 is the beginning of a treatment pathway for the vast majority of children. This is because at least 90% of children (the precise figure may be controversial but does not matter) who take puberty blockers proceed to stage 2. This is a factual reality which does not obviate the need for further discussion between doctor and patient before stage 2 begins, but it potentially has an important impact on the doctor's obligations before stage 1 begins. Speaking in very general terms at this stage, stage 1 is reversible (if the child ceases the puberty blockers and does not take any gender-affirming or cross-sex hormones, he will resume female puberty) whereas stage 2 may well not be, particularly in the context of fertility. In these circumstances, although a child will be infertile whilst on puberty blockers, there are no long-term risks to fertility as a direct consequence of that treatment.
Thirdly, it is incumbent on all doctors whose patients wish to undergo this form of treatment to assess whether he (in the case under consideration) is Gillick competent to make decisions about his treatment. If a positive assessment of competency were made in any given case (as it was by the Appellant in the present case), the parent cannot “trump” or overbear the child's decision in the event of disagreement between them (see AB v CD & Tavistock and Portman NHS Foundation Trust and others [2021] EWHC 741 (Fam), paras 67–68 in particular). But, in the light of the parties' submissions before me the extent to which parental consent remains relevant in the case of a Gillick competent child where there is agreement within the family is a key issue which I will need to resolve.
Any requirement to obtain the informed consent of the patient creates the obvious practical difficulty that children aged nearly 11 (I am bringing the consideration round to the particular facts of the present case) may well be able to understand very basic aspects of puberty-suppression at stage 1 and gender-transition at stage 2, but will find it harder to grasp the ramifications of these treatments on fertility.
The Appellant qualified as a doctor in 1992. In 2016 she resigned from her GP partnership in Wales and began practising in the area of transgender medicine through GenderGP. A GMC investigation against her commenced in December 2016, and during its course she was made subject to various interim orders including conditions and suspension. The MPT hearing began on 26 th July 2021 and, as I have said, concluded on 30 th June 2022. By that time the Appellant had already been suspended on an interim basis for over two years.
It is unnecessary to examine the cases of Patients A and B.
Patient C was born in 2006 (I am not giving the date of birth in order to do my utmost to safeguard anonymity) and was assigned female at birth. According to his mother's statement, Patient C identified as male and was diagnosed with gender dysphoria. Before October 2016 Patient C had started puberty and his mother approached the Appellant on 17 th October by email, requesting a consultation. There was an initial telephone conversation involving Patient C, his mother and the Appellant on 9 th November 2016, and a face-to-face appointment on 8 th December. On the same day an appointment also took place with a psychologist, Dr Vickie Pasterski.
The Appellant assessed Patient C as Gillick competent to make decisions about his treatment. I understand that this assessment was based, at least in part, on Dr Pasterski's report. Her alleged failure to make an assessment of competency was one of the Heads of Charge, but the MPT accepted the Appellant's evidence on this issue.
It is notable that the Appellant wrote what appears to be a file note at 14:28 on 8 th December, shortly after the 45-minute consultation with Patient C and his mother. In this she stated:
“We fully discussed the role of blockers which would prevent further female puberty developing and would give us the chance to decide which puberty would [be] the best one for [Patient C] around the age of 14 or so. We didn't talk about fertility, it got mentioned and then we forgot to talk about it, so that needs to be addressed.”
A number of matters arise. First, although the Appellant clearly recognised that fertility should be addressed, she did nothing to rectify this omission for a couple of months. Secondly, the file note does not record in terms that gender-affirming hormones were discussed. Indeed, on a literal reading of the file note the discussion was limited to the role of puberty blockers. However, in my view it is a reasonable inference from the document (as borne out by her oral evidence) that the Appellant gave Patient C and his mother at least an overview of the treatment pathway from puberty blockers to testosterone, and the reference to discussing at the age of 14 which puberty would be the best for Patient C only makes sense if he were told how a male fertility might be achieved. Thirdly, I agree with the GMC's interpretation that by writing this file note the Appellant was accepting that her oversight had to be addressed, although I do not draw the further inference that the Appellant was impliedly conceding that this had to be achieved by way of face-to-face consultation with Patient C.
On 10 th January 2017 Patient C's mother sent an email to GenderGP stating that they would like to proceed with puberty blockers. There was a second appointment with the psychologist on 21 st January.
On 7 th February the clinic manager sent copies of two consent forms to Patient C's mother. She was told by email to “have a really good read of these consent forms”. One may see from the attachments to the email that one of the forms related to “FtM” consent, the other to “PB only”.
Patient C's mother was confused as to which form should be signed. That was understandable. By email sent on 8 th February, she “presume[d] that we only sign the one about blockers not the testosterone one?”. Patient C's mother was then advised that they should sign just the blockers' one, and that the other was for information only.
Unfortunately, the MPT was shown the wrong consent form. Their bundle contained the form for puberty blockers and testosterone treatment. That was the form “for information only”. The correct form, which was signed by Patient C and his mother on 9 th February and then returned by scanned email to the clinic, was the one for puberty blockers alone.
The Annex to this judgment contains both versions of the consent form, the right one and the wrong one. The wrong form, as I am describing it, deals in some detail with the...
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