Webberley v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 12 December 2022 |
| Neutral Citation | [2022] EWHC 3520 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | No. CO/2240/2022 |
[2022] EWHC 3520 (Admin)
Mrs Justice Foster DBE
No. CO/2240/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Miss J Carey KC (instructed by Gunnercooke LLP) appeared on behalf of the Appellant.
Miss A Hearnden (instructed by GMC Legal) appeared on behalf of the Respondent.
( )
INTRODUCTION
On 25 May 2022 Dr Michael Webberley had his name erased from the medical register following a hearing at the Medical Practitioners' Tribunal (“MPT”). He now appeals that decision pursuant to section 40 of the Medical Act 1983. Miss Jacqueline Carey KC appeared for Dr Webberley and Miss Alexis Hearnden for the GMC. I am grateful to both counsel for their well-articulated written materials and succinct submissions.
The MPT found Dr Webberley to have acted dishonestly in connection with securing informed consent in the course of prescribing testosterone and other androgen therapy drugs. He challenges that finding of dishonesty before this court. He also applied unsuccessfully to adjourn the hearing on the grounds of his ill-health. It was heard in the event without him being present or represented which he challenges as unfair. A challenge is made to the admission of statements in support of the GMC's case to whose admission he did not expressly agree.
The appellant was a consultant gastroenterologist who retired from practice in the NHS in 2016, after 30 years practice. He thereafter co-owned with his wife, Dr Helen Webberley, a General Practitioner, an online clinic under the name ‘GenderGP’. The clinic offered private healthcare services to those experiencing gender identity issues. Dr Webberley also worked for an online prescriber of male androgen, a firm called ‘Balance My Hormones’ (“BMH”). The MPT proceedings were brought following complaints to the GMC in 2017, 2018 and 2019 in respect of Dr Webberley's conduct at GenderGP and BMH. There were 89 allegations which may be categorised as follows:
(a) Allegations 1 to 63 which related to 18 male patients for whom androgen treatment was considered appropriate treatment by Dr Webberley through BMH, of which allegations, including the provision of dishonest information in respect of 17 patients, were found proved.
(b) Allegations 64 to 82 which referred to seven patients who sought gender affirming medication. Allegations in respect of each of these seven, including as to lacking the necessary qualifications and experience, were found proved.
(c) Allegations 83 to 89, which related to the business of gender GP, including attempting to circumvent UK Regulations by moving clinical care to mainland Europe, all of which were found proved.
THE REGULATORY FRAMEWORK
Section 40 of the Medical Act 1983, as amended, provides that amongst the appealable decisions for the purpose of that section is a direction of the MPT giving a direction for erasure. A right of appeal is given against such a finding to the High Court, which may:
(a) dismiss the appeal;
(b) allow the appeal and quash the direction;
(c) substitute for the direction any other direction which could have been given or made by the MPT; or
(d) remit the case to the MPTS for them to arrange for an MPT to dispose of the case in accordance with the directions of the court; or
(e) may make any order as to costs as it thinks fit.
It is well established that the appeal court allows such an appeal governed by Part 52 where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court, and that the court may draw any inference of fact it considers justified on the evidence.
There is no dispute that the recent high-level description of the appeal right provided by Nicola Davies LJ in Sastry and Okpara v The General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 applies. At paragraph 102 she said:
“ Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court:
(i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
(ii) the jurisdiction of the court is appellate, not supervisory;
(iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal;
(iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances;
(v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate;
(vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration.”
In the case of Yassin v The General Medical Council [2015] EWHC 2955 (Admin) the more detailed approach of this court was described in the following terms such as are relevant to the present appeal by Cranston J at paragraph 32:
“ i) The Panel's decision is correct unless and until the contrary is shown: Siddiqui v General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];
ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist Tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v General Medical Council [2015] EWHC 2445 (Admin);
iii) …
iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v General Medical Council [197], per Auld LJ;
v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ;
vi) …
vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii).
viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v General Medical Council [2010] EWCA Civ 407, [55]–[56].
ix) A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.”
ADJOURNMENT
The GMC laid particular emphasis on the insistence in the jurisprudence that medical evidence identify how and why any particular features of the alleged condition meant that Dr Webberley was unable to take part in the hearing and also on the absence of a prognosis. They drew attention to Levy v Ellis-Carr [2012] EWHC 63 (Ch) and to the authority summarised in General Medical Council v Hayat [2018] EWCA Civ 2796 in the context of the evidence required in support of an adjournment. Norris J had emphasised in Levy v Ellis-Carr that the person who asks for an adjournment must demonstrate a good reason not to attend the hearing. The material is tendered as expert evidence, and the court will consider what weight is to be attached to the opinion contained in it, and what arrangements might be made short of an adjournment to accommodate the parties' difficulties. No judge, he remarked, is bound to accept expert evidence, noting that even a proper medical report is simply part of the material to be looked at as a whole, including previous conduct of the case.
The case of Hayat involved a doctor in respect of whom a submission was made that the Tribunal had erred in failing to have regard to relevant medical evidence before committing his hearing to continue in his absence. The submission was accepted by the judge at first instance, and on the GMC's appeal the Court of Appeal, allowing the appeal, set out general principles concerning the approach when medical evidence is sought to be adduced in support of an adjournment, thus:
(a) As reflected in the case of General Medical Council v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867 hearings in absence are relatively common in the modern day.
(b) Whilst principles derived from...
To continue reading
Request your trial