Webberley -v- General Medical Council
The judgment in Helen Webberley's appeal was published today - she's is allowed back to practice. What are the implications of this decision for the wider question of medical transition for children?
I refer to Patient C as ‘she’ - because that is what she is. She gave up taking puberty blockers a few months after treatment. I hope she did not proceed to any other medical intervention while a child and that irreversible decisions about her fertility and adult sexual function will be made when she has the capacity to understand the consequences of such decisions.
Dr Helen Webberley faced a 85 day fitness to practice tribunal which investigated her provision of testosterone to children - the youngest 12 years old.
There were myriad allegations against her but only one that led to a finding of impairment of fitness to practice and a sanction - following an initial consultation with patient C in 2016, she failed to provide good clinical care by advising on the risks of taking puberty blockers without discussing the risks to patient C’s fertility. Patient C was born in 2006, so could have been no more than 10/11 years old at this time.
She appealed to the High Court against this finding under section 40 of the Medical Act 1983. The judgment is here. At para 7 it is clear that ‘assigned at birth’ has now become irrevocably part of our vocabulary, to my great regret.
The Judge noted that the vast majority of children who commence puberty blockers will go on to take cross sex hormones which will engage long term risks for fertility. Any doctor advising on puberty blockers will need to take that into account and the obvious and immediate problem arises - how can a child of 11 or 12 grasp the ramifications of the proposed treatment on their fertility as an adult?
Dr Webberley noted on 8th December, after consultation with patient C, that she had ‘forgotten’ to talk about fertility and that needed to be addressed - but she failed to do so until 26th February 2017. Nor did she record any discussion of cross sex hormones and the consent form for puberty blockers did not contain details of any risk of this. C’s mother replied to say C was ‘adamant’ he (sic) doesn’t want children but was not sure that is something an 11 year old could be definite about. There appeared to be confusion on the part of C’s mother as to exactly how fertility could be impacted. C started taking puberty blockers in May 2017 but stopped in January 2018, having changed her mind.
The GMC relied on evidence from a paediatric endocrinologist, a specialist clinical psychologist and a former GP (see para 34). The court was impressed by the evidence given relating to capacity and the issue of fertility - see para 40. The child must demonstrate sufficient understanding of how medical transition will work and possible side effects, which includes the impact on fertility and discussion of fertility preservation. Also that some people do come to regret treatment decisions. There had been discussions about fertility in Patient C’s case - but with her mother, not the child herself.
The Judge agreed that all relevant guidance made the same point - before undergoing puberty suppression, the risks to fertility should be explained, and discussed directly with the patient (para 49)
Dr Webberley’s view was (para 56) that while it was ‘incredibly important’ to discuss fertility, it ‘has to be age appropriate’ and
….we shouldn’t deny somebody a particular stage of care simply because they aren’t old enough or mature enough to completely understand what the future and fertility means….
Dr Webberley challenged the finding and sanction on a number of grounds, including that it was entirely appropriate to have obtained C’s mother’s consent, following the decision in AB - the absence of discussion with C was ‘legally irrelevant’. (para 80). Counsel for the GMC responded to point out that there was no attempt to contact Patient C or her mother before the consent forms were sent on 7th February. The ‘flurry’ of emails that then followed did not describe the likely progression of one stage to the next and it just wasn’t clear what conversations C’s mother had with C (para 89).
The Judge was critical of the way the Tribunal dealt with the case, (not least that there was confusion over which consent form was the ‘right’ one) but noted that it had been a very long and complex case and the Tribunal had been fair to Dr Webberley (para 98). However, while the primary allegation against Dr Webberley was clear - she failed to exercise good clinical care because she did not discuss the fertility risks with Patient C - the second allegation was less clear, that there was no discussion of fertility risks after embarking on the treatment pathway.
The key passage from the AB decision was para 68 - when the parent and child are in agreement, the parents’ ability to consent does not disappear once a child achieves Gillick competence. The parent cannot ‘trump’ a Gillick competent child but can make a decision where the child fails to do so. Patient C had been found to be Gillick competent by the Tribunal (and interestingly the Judge expresses doubt about this at para 114, but knows he has to put that doubt aside) but had not delegated the decision making to her mother - the whole point of having the consent form explained was so that C could agree to the treatment. Therefore Dr Webberley did owe a duty to discuss fertility risks with C directly.
The beating heart of the difficulty in this case is set out in para 124 (along with a worrying assertion that puberty blockers are ‘fully reversible’ - this is not supported by the Cass Review):
The risks to Patient C’s fertility did not flow from the puberty blockers; their effects were fully reversible. They flowed from the gender-affirming hormone treatment, informed consent for which would require a separate exercise at the relevant time. However, risks to fertility arose because Patient C was embarking on a treatment pathway which would very likely lead to the next stage. How exactly should these subtle and complex issues be addressed?
The Judge decided (para 126) that a patient needs to know that he is beginning on a journey with at least two stages and he needs to know the risks of each stage, even if he doesn’t proceed beyond stage 1. Dr Webberley had a duty to discuss fertility issues directly with Patient C and she needed to understand how and why these risks arose.
However, the Tribunal failed to conduct any analysis as to whether Dr Webberley’s admitted failure to discuss fertility at the initial discussion amounted to serious misconduct in light of the emails that followed. The Judge did not think it was good practice (para 148) to fail to discuss it, wait a number of months and them simply ask ‘is this something you have discussed’? Dr Webberley should have been proactive. Dr Webberley also disputed that it was right that a discussion about fertility should take place at the outset (para 155) - the Judge found she was wrong to take this position and ‘that calls into question the quality of the care’ Dr Webberley was giving. Her attempt to explain away her file note that ‘she forgot’ was ‘ill-judged and did her no favours’
The Judge concluded at para 157
The Tribunal failed to properly analysis the issue of serious misconduct
Its thinking was confused, clearly wrong in places and omitted reference to important evidence
He was thus unable to conclude that Dr Webberley was guilty of serious misconduct, although he had concerns about certain aspects of her practice, including a failure to have a face-to-face consultation about fertility. It is clear he did not find this an easy case.
An order was made that the appeal was allowed. The case ends here (para 177). The Judge issued a warning that the appeal does not raise any wider issues of the wisdom or otherwise of medical transition for children.
Comment
The findings of the interim Cass Review were clear and have been echoed in a number of other jurisdictions. There is no compelling evidence base to support assertions that medical transition of children is efficacious and some worrying evidence that it does serious harm - for example, puberty blockers impact bone density and neurological function. Keira Bell brought the lack of focus on a child’s capacity to consent to any of this into the sunlight with her judicial review against the Tavistock, and that whole sorry saga of medical malpractice has been meticulously exposed by Hannah Barnes in ‘Time to Think’.
It is therefore concerning to see the language of ‘sex assigned at birth’ so now embedded in our language. Sex, for 99.9% of us, is observed and recorded. It can no more be ‘assigned’ than can my disability. This language encourages young and impressionable children to think the material reality of their sex is something that can be swapped about at whim. However, it looks as if we are stuck with this. It is also very concerning to see the court comment that puberty blockers are ‘fully reversible’ - this is not the position of the NHS or the Cass Review.
However, I welcome the clarity of the judgment with regard to the issues of consent, capacity and discussions about fertility. A face-to-face discussion with the child patient must be had; a failure to do this is bad practice. Dr Webberley does not come out of this unscathed - her attempts after the fact to justify her failure to adhere to good practice were rightly criticised.
It is clear that the original Tribunal found it very difficult to marshall a vast array of complex evidence and it is very frustrating that the ‘wrong’ consent form became the focus of attention, diverting energy from properly considering what information C did or did not have.
It is clear to me that the court arena is not the best place to determine complicated decisions about patient care. For that we need to be able to trust the medical profession, and I am not sure at this current stage we can be complacent about that. I will await the final report of the Cass Review in a hope that we will have clarity about the risks and benefits of such treatment and the need to treat with extreme care when suggesting that an 11 year old is able to consent to sign away their adult fertility and sexual function.
Very clear, thank you. And yes, ‘assigned at birth’ is part of everyday language, inside & outside the courts. A regressive move.