Dr Helen Webberley v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court exercises an appellate, rehearing function and may substitute its own judgment, while allowing appropriate weight to the specialist tribunal’s expertise and factual assessments.

Where a Gillick-competent child consents to treatment in their own right, parental involvement remains important but parental consent does not replace the child’s consent. Before puberty suppression begins, good clinical care requires a direct, age-appropriate discussion with the child about fertility risks arising from the treatment pathway, including the possible later use of gender-affirming hormones. It is unnecessary to state that a particular percentage of patients will progress to the later stage.

Where the tribunal’s reasoning is materially flawed but the appellate court cannot fairly determine serious misconduct itself, the court may allow the appeal and decline to remit where a further hearing would be disproportionate or oppressive.

The appellant, a registered general practitioner, appealed under section 40 of the Medical Act 1983 against findings by a Medical Practitioners Tribunal concerning her treatment of three transgender children. Only the allegation concerning Patient C materially affected the appeal.

The Tribunal found that the appellant had failed to provide good clinical care by not discussing fertility risks with Patient C before prescribing puberty blockers. It found serious misconduct, impairment of fitness to practise and imposed a two-month suspension subject to review.

The central issues were the scope of the duty to discuss fertility directly with a Gillick-competent child, the significance of discussions with the child’s mother, the proper approach to the Tribunal’s evaluative findings, and whether the case should be quashed or remitted.

1. Appeal function. The appeal under section 40 of the Medical Act 1983 was by way of rehearing. The court could substitute its own decision, but appropriate deference or diffidence was required where the Tribunal had made nuanced, multi-factorial assessments involving expert evidence.
2. Consent and parental involvement. The decision in AB v CD & Tavistock and Portman NHS Foundation Trust and others [2021] EWHC 741 (Fam) did not establish that a parent may consent in every case. Where the child is Gillick competent and has not delegated the decision, the child’s own consent is required. The parent should nevertheless be involved throughout the decision-making process.
3. Clinical duty. The appellant owed Patient C a duty to discuss fertility risks with him directly before puberty blockers were prescribed. The discussion was required because he was beginning a treatment pathway with at least two possible stages. Puberty blockers were reversible, but later gender-affirming treatment might have irreversible consequences for fertility. The discussion also served to assess understanding and competency and to allow timely consideration of fertility preservation.
4. Extent of information. There was no obligation to tell Patient C expressly that at least 90% of patients proceed from puberty blockers to gender-affirming hormones. The patient did, however, need to understand in general terms why fertility was being discussed and that the pathway could lead to gender-affirming treatment with different and potentially irreversible consequences.
5. Tribunal’s reasoning. The Tribunal materially misunderstood the consent form, considered the wrong form, failed to address important email evidence and treated the initial consultation as effectively the only opportunity for discussion. Its reasoning on serious misconduct was confused and failed to analyse whether the later communications, viewed with all the circumstances, meant that the omission amounted to serious misconduct. The burden of proof remained on the GMC.
6. Disposal. The court could not fairly determine for itself whether the appellant’s practice amounted to serious misconduct. Nevertheless, remittal would require a lengthy rehearing with further evidence, after substantial delay and in circumstances where the case was not among the most serious. It would therefore be disproportionate and oppressive. The appeal was allowed under section 40(7)(b) of the Medical Act 1983; the case was not remitted and the appellant’s case ended.

The judgment does not state a separate reported lower-court citation. The appeal was brought under section 40 of the Medical Act 1983 against the Medical Practitioners Tribunal’s findings and sanction dated 30 June 2022.