Dr Helen WEBBERLEY (3657058) DETERMINATION ON SANCTION – 30/06/2022

(full text of determination from MPTS)

Jun 30, 2022

1. Having determined that Dr Webberley’s fitness to practise is impaired by reason of misconduct and conviction, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose.

Evidence

2. The Tribunal has taken into account evidence received during the earlier stages of the hearing where relevant to reaching a decision on sanction. It received no further evidence at this stage of the proceedings.

Submissions For the GMC

3. Mr Simon Jackson QC submitted that the appropriate sanction in this case is a period of suspension. He acknowledged that the decision as to the appropriate sanction to impose is a matter for the Tribunal exercising its own judgment. He added that the Tribunal should start with the least restrictive sanction. He reminded the Tribunal of the need to take account of mitigating and aggravating factors, as well as any evidence of insight and remediation. He took the Tribunal through paragraphs of the Sanctions Guidance (‘SG’), particularly paragraph 91, and also referred to relevant case law. Mr Jackson submitted that when considering the appropriate sanction, the Tribunal should be mindful of the duration and seriousness of the misconduct found and how far Dr Webberley’s conduct had fallen below the expected standards.

4. Mr Jackson referred the Tribunal to its determination on impairment reminding it of its reasons for finding Dr Webberley’s fitness to practise to be impaired, in relation to paragraphs 1(g)(i)(1, 2 and 3) and 3(h), 5(d)(iii), 28 and 29 of the Allegation.

In respect of paragraphs 1(g)(i)(1, 2 and 3) and 3(h)

5. Mr Jackson submitted Dr Webberley failed to recognise that the treatment she provided to Patients A and B carried significant risks for them if, for any reason, either did not communicate with her for further prescriptions. He said that it was wrong of Dr Webberley to not have in place a proper and reliable follow-up system and by not having one, she put Patients A and B at unwarranted risk of harm.

In respect of paragraph 5(d)(iii)

6. Mr Jackson submitted that Dr Webberley allowed some five months to pass, from the date of the consultation, before she discussed the matter of fertility with Patient C’s mother. He reminded the Tribunal that, in her oral evidence at the impairment stage, Dr Webberley did not say that it would now be her practice to discuss fertility even in the sense of starting the ball rolling with all new patients. In respect of paragraph paragraphs 28 and 29

7. Mr Jackson submitted that Dr Webberley, despite being advised by HIW to cease treating patients, continued to do so for some 11 months, before she stopped following her conviction. He told the Tribunal that the level of fine for this offence at the time was level 5 – unlimited. Previously it had been £5,000. The fine which was imposed was £12,000.

8. Mr Jackson reminded the Tribunal of the overarching objective which he said it must have regard to in the context of its findings on impairment, particularly when considering the matters relating to Dr Webberley’s conviction and sentence.

9. In relation to insight and remediation, Mr Jackson submitted that Dr Webberley had failed to demonstrate to the Tribunal’s satisfaction that she had developed insight into the concerns identified in this case and that she had remediated the misconduct. This, he said, was supported by the findings of the Tribunal in its determination on impairment.

10. Mr Jackson submitted that Dr Webberley’s pattern of serious misconduct, combined with evidence of avoidance of regulation, give rise to a real risk of repetition in the future, with consequent serious risks to patient safety and that the profession will be brought into disrepute. Mr Jackson submitted that, in the light of Dr Webberley’s lack of insight into her duties regarding registration, her incomplete remediation, and her overt efforts to avoid regulation, there remains a serious and obvious risk of repeated serious misconduct in the future. Mr Jackson invited the Tribunal to impose a period of suspension on Dr Webberley’s registration.

For Dr Webberley

11. Mr Ian Stern QC referred the Tribunal to Dr Webberley’s reflective statement of 4 June 2022. He took the Tribunal through its determination on impairment highlighting the factors which he submitted the Tribunal should take into account when considering the appropriate sanction. He addressed the Tribunal on those matters where it found Dr Webberley’s fitness to practise impaired.

In relation to paragraphs 1(g)(i)(1, 2 and 3) and 3(h)

12. Mr Stern submitted that Dr Webberley set out in her reflective statement how, going forwards, she would proactively deal with new patients in terms of follow up. He reminded the Tribunal that it had found Dr Webberley’s fitness to practise impaired in respect of these paragraphs of the Allegation on public interest grounds www.mpts-uk.org 3 only. He also reminded it of its finding that Dr Webberley had demonstrated insight and remediation in this regard, and that she posed no risk of repetition. Mr Stern stated that Dr Webberley has set out the steps she would initiate to ensure her patients were followed up, and that she would, at that point, review the patient before further prescribing any treatment. Mr Stern submitted that the public could be confident that Dr Webberley had and would continue to treat her patients appropriately.

13. Mr Stern said that the Tribunal should take into account that Dr Webberley had a ‘heavy workload’ of patients, and that she was unable to identify or secure any further training to increase her understanding of and improve her practice. In light of this, Mr Stern submitted that Dr Webberley’s failure in relation to paragraphs 1(g)(i)(1, 2 and 3) and 3(h) of the Allegation was isolated. Further, Mr Stern stated that there were no NICE guidelines which would have assisted Dr Webberley at the material time. He said that Dr Webberley did everything she could in the best interests of her patients but that does not mean she could not improve her clinical practice, as she has set out in her statement of 4 June 2022.

In relation to paragraph 5(d)(iii)

14. Mr Stern referred the Tribunal to his submissions at the facts stage in respect of this paragraph of the Allegation, and to paragraph 151 of its determination on impairment. He said that it was Dr Webberley’s usual practice to discuss fertility with her patients at the initial consultation. He stated that this was evidenced in the note she wrote to Patient C’s GP dated 26 February 2017, in which she acknowledged that, although fertility was mentioned, it was not discussed, and in the email to Patient C’s mother. Mr Stern submitted it was clear this was an isolated omission on Dr Webberley’s part, that she had addressed this in her statement of 4 June 2022, and that she was being open and transparent about this omission. He said that it was a regular feature in this case that most of the communications with the patients were done through their parents.

15. Mr Stern submitted that although the Tribunal found Dr Webberley’s fitness to practise impaired on public protection grounds, the gravity of this was diminished for the reasons set out above. Mr Stern submitted that the public interest was in having a doctor who provided good care and treatment to her patients.

In relation to paragraphs 28 and 29

16. Mr Stern set out the background to the circumstances which led to Dr Webberley’s conviction. He submitted that Dr Webberley was initially not aware of the requirement to be registered with HIW. He stated that from the point Dr Webberley was made aware of the requirement to be HIW registered, she took steps to get registered. Mr Stern reminded the Tribunal that Dr Webberley made it clear to HIW that she intended to continue to treat her existing patients as they had nowhere else to go to receive the treatment they required. He stated that as late as 24 April 2017, HIW had not decided whether Dr Webberley was breaking the law, as they conducted a PACE interview on that date. He submitted that this demonstrated that HIW were themselves unsure over how to deal with Dr Webberley’s case or how to respond to her representations about her patients having nowhere else to go.

17. Mr Stern said it had now been some four years since the conviction. He submitted that Dr Webberley has no previous adverse history with the GMC. He reminded the Tribunal it had found Dr Webberley to be a competent doctor in the area of gender dysphoria. He referred to relevant case law and took the Tribunal through the SG citing in particular paragraph 68 concerning taking no action. Mr Stern said that it cannot be ignored that Dr Webberley was an impressive doctor who had studied extensively in the field of gender dysphoria and who had gone to great lengths to provide good care and treatment to her patients. He submitted that the public would not only understand but respect Dr Webberley for the way she had acted. He added that it is hard to imagine what would have become of those patients if Dr Webberley had stopped treating them. He reminded the Tribunal of Patient A’s evidence. He submitted that the approach Dr Webberley took in relation to treating patients whilst not registered was life-saving. She had probably prevented suicides and self-harming.

18. In concluding, Mr Stern submitted that this was an exceptional case. Dr Webberley provided treatment to patients not available elsewhere. Mr Stern said there was no need to send a deterrent message to the doctor. Mr Stern submitted it would not be right to impose a further period of suspension upon Dr Webberley’s registration. He submitted, if anything, the public interest would be severely damaged by the imposition of conditions or suspension as this may restrict Dr Webberley from treating patients or engaging in research work. He referred the Tribunal to the testimonials received from various parties including parents of patients, and patients, all of whom speak very highly of her and her work. In respect of her requirement to register with HIW, he referred to the letters from Gender Identity Research and Education Society (GIRES) and UNIQUE in which grave concerns were expressed if Dr Webberley was forced to stop treating her then patient cohort. In all the circumstances, Mr Stern submitted that an order was not necessary and he invited the Tribunal to close the case with no action on Dr Webberley’s registration.

The Tribunal’s Approach

19. The decision as to the appropriate sanction, if any, to impose is a matter for the Tribunal alone, exercising its own judgement. In so doing, it has given consideration to its findings of fact, its findings of misconduct and impaired fitness to practise and the submissions made by both Counsel.

20. The Tribunal reminded itself of the statutory overarching objective, which it has set out in its determination on impairment, and that was at the forefront of its mind throughout this determination.

21. Throughout its deliberations on sanction the Tribunal bore in mind that the purpose of a sanction is not to be punitive, but to protect the public interest. The public interest includes protecting the health, safety and wellbeing of the public, maintaining public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. In making its decision, the Tribunal also had regard to the principle of proportionality, and it considered Dr Webberley’s interests as well as those of the public. It noted that this may include maintaining experienced clinicians in practice working for the public benefit in appropriate cases but the Tribunal has also to balance this with pursuit of the statutory over-arching objective.

The Tribunal’s Determination on Sanction

22. The Tribunal’s findings on impairment divide naturally into:

those where limb one of the overarching objective is engaged – the protection and promotion of the health, safety and well being of the public, namely in respect of paragraph 5(d)(iii) of the Allegation; and
those where limbs two and three of the overarching objective are engaged – the promotion and maintenance of public confidence in the medical profession and the promotion and maintenance of proper professional standards and conduct of the members of the profession, namely in respect of paragraphs 1(g)(i)(1, 2 and 3), 3h, 28 and 29 of the Allegation.
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Fitness to practise history

23. The Tribunal noted that since Dr Webberley qualified in 1992, she has had an unblemished fitness to practise record.

References and testimonials

24. The Tribunal has considered the issue of sanction in the context of the references and testimonials which it has received concerning Dr Webberley. In particular, it has had regard to the references and testimonials contained in exhibit D28. This included 16 testimonials sent to the GMC from 13 parents, all of whom were aware of the allegations against Dr Webberley. They could not speak more highly of her. There were heartfelt expressions of gratitude, and observations that her work was life-saving.

25. It had regard to the letter dated 27 May 2017 to Mr Alun Jones, the Director of Inspection, Regulation and Investigation, HIW, from Terry Reed OBE, a trustee of GIRES who wrote: ‘I am writing to express my deep concerns regarding the refusal to register Dr Webberley with respect to her service for transgender people. This leaves 2000 transgender, non-binary and non-gender people without care, despite the fact that the GMC has not seen it necessary to take this step.’ ….

26. It had regard to the letter from Jenny-Anne Bishop OBE, the Chairperson of Unique Transgender Network, who wrote to Alun Jones as aforesaid the following: …. ‘I am writing to express my very grave concern regarding the refusal to register the GenderGP Service (Dr Webberley) for the support and clinical care of transgender / gender diverse people.’ ….

27. It had regard to the letter from Dr Johanna Olson-Kennedy, the Medical Director of the Center for Transyouth Health and Development at Children’s Hospital Los Angeles, an internationally recognised expert in transgender medicine, dated 22 August 2019 who wrote in support of Dr Webberley in relation to her care of Patient A.

28. It also noted a letter to Dr Webberley from Dr Timmins dated 18 November 2016 concerning professional matters, in which he stated: ‘….However, I think you are well on your way to developing a Beacon service in primary care for gender, as other GP services have done around the country in developing special interests in drug and alcohol treatments or managing common mental health disorders.’

29. With these matters in mind, the Tribunal considered the issue of sanction in respect of each finding of impairment by reference to the relevant limb of the overarching objective. The Protection and Promotion of the Health, Safety and Well-Being of the public Paragraph 5(d)(iii) of the Allegation.

30. The relevant finding of the Tribunal in respect of impairment is paragraph 165 which reads: ‘165. Nevertheless, the Tribunal did not consider that Dr Webberley has developed sufficient understanding as to the significance of how she failed Patient C in regard to discussing fertility, and as to how she can be sure that this will not be repeated. It therefore determined that her fitness to practise is impaired by reason of her misconduct in failing to discuss the risks to Patient C’s fertility with him on public protection grounds.’

31. Of course the Tribunal’s finding relates to the precise language of the paragraph of the Allegation. That identifies that the discussion should have taken place before treatment commenced. There are a number of points which, in the Tribunal’s view, add context to the failure which the Tribunal found proved, as follows:

Issues relating to the treatment of gender dysphoria, including the risks to fertility, are on-going and warrant continuing discussion;
The Tribunal was concerned that Dr Webberley did not “start the ball rolling” by engaging in discussion with Patient C about the risks to his fertility before commencing treatment. That contemplates that the ball will continue to roll after commencement of treatment;
Fertility was mentioned at the consultation but there was no ensuing discussion;
Dr Webberley recognised her omission herself contemporaneously, without stimulus from a third party. Indeed, she disclosed it in her letter to Patient C’s GP;
Dr Webberley recognised this as an error in her reflective statement;
Dr Webberley sought to correct that error contemporaneously by engaging extensively with Patient C’s mother in writing;
Patient C was aged 10 years and 8 months when she consulted with him on the telephone and 10 years and 9 months when she was saw him face -to-face in December 2016. A discussion on the telephone and/or faceto-face with Patient C when he was that age would certainly have involved significant input from Patient C’s mother;
Dr Webberley was reassured in her correspondence with Patient C’s mother.

32. Notwithstanding these points, which the Tribunal consider diminish the seriousness of the finding of impairment, the Tribunal found serious misconduct and that Dr Webberley’s fitness to practise is impaired by her lack of insight. In the Tribunal’s view that finding means that it would not be appropriate to close this case with no action. Dr Webberley needs to demonstrate to a Medical Practitioner’s Tribunal that she has developed the necessary insight and remediation to enable it to conclude that there is no risk of repetition.

33. The Tribunal concluded that the misconduct found is remediable. The Tribunal is satisfied that Dr Webberley should be allowed an opportunity to demonstrate whether she has achieved the necessary insight and that she has remediated her shortcomings. That will enable her to return to unrestricted practise. The Tribunal recognises that it should only impose the least restrictive sanction consistent with its duty, in this instance, to protect the public. However, it does not consider that an order of conditions is an appropriate sanction in the circumstances of this case. It finds that the appropriate sanction for this aspect of the Tribunal’s finding of impairment is a period of suspension. The Tribunal’s final decision on sanction is, of course, subject to its determination in respect of the other aspects of impairment found in this case.

The Promotion and Maintenance of Public Confidence in the Medical Profession and the Promotion and Maintenance of Proper Professional Standards and Conduct of the Members of the Profession

34. As mentioned, two findings of impairment fall to be considered in respect of the second and third limbs of the overarching objective. Paragraph 1(g)(i)1, 2 and 3 and Paragraph 3(h) of the Allegation.

35. The relevant finding in respect of impairment is paragraph 160 which reads: The Tribunal considered whether it should make a finding of impairment based upon the public interest alone. Having regard to Dame Janet Smith’s categorisation of cases which may lead to a finding of impairment, the Tribunal has found that Dr Webberley’s misconduct in this regard did put Patients A and B at unwarranted risk of harm. In the Tribunal’s view an informed member of the public would be surprised if a finding of impairment on public interest grounds were not made in those circumstances. It therefore finds that Dr Webberley’s fitness to practise is impaired on wider public interest grounds.

36. These paragraphs of the Allegation concern Dr Webberley’s failure to provide adequate follow up care to Patients A and B after initiating testosterone treatment.

37. The Tribunal considered that there were no aggravating factors which it ought to take into account. Dr Webberley’s failures are encapsulated in the paragraphs of the Allegation found proved. Whilst it noted that there was no evidence that she expressed apology to Patient B and/or his mother, there was no evidence that she had any opportunity to do so. Her failure to arrange review consultations for Patient B reflected her then approach to providing follow up care. By contrast there was much evidence that she apologised and showed contrition towards Patient A and his mother. That evidence was recited in the Tribunal’s determination on facts.

38. The Tribunal considered that the following were mitigating factors particularly germane to the misconduct found proved:

Dr Webberley showed remorse and contrition to Patient A and his mother as mentioned;
Dr Webberley has developed insight into her failings and demonstrated remediation to the Tribunal’s satisfaction;
These matters occurred over five years ago. Paragraphs 28 and 29 of the Allegation.

39. The relevant finding in respect of impairment is set out in paragraphs 180 to 182 which read: 180. In these circumstances, the Tribunal considered that the prudent and proper approach to considering whether Dr Webberley’s fitness to practise is impaired by reason of the convictions is to limit itself to considering the circumstances whereby she came to be convicted. Those circumstances are a failure on her part to acquaint herself with the regulations under the Care Standards Act 2000 which required her to register her online medical agency with Health Inspectorate Wales. Ultimately it is not of any consequence that hers was the first conviction of its kind in Wales. At the material time she was an able and accomplished medical practitioner. She ought not to have plunged into developing an independent online agency without appropriate thought and reflection and preparation. 181. A conviction is a serious matter for a member of the medical profession. 182. The Tribunal finds that Dr Webberley’s fitness to practise is impaired by reason of her conviction.

40. The Tribunal considered there were no aggravating factors which it ought to take into account. As mentioned, the fact of any conviction is a serious matter for a member of the medical profession.

41. The Tribunal considered that there were mitigating factors as follows:

Once Dr Webberley was made aware that registration was required for her company to provide online services, she engaged with HIW, including the instructing of solicitors to negotiate a resolution of the concerns raised;
When her solicitors engaged with HIW, they made it clear that she was currently providing medical treatment. The request was made that she should be allowed to continue her work pending the appropriate application being made;
When the HIW responded, Dr Webberley was not told that she should cease all treatment. She was asked not take any new patients. Dr Webberley complied with that request. HIW were aware that she was continuing to treat existing patients;
When on 24 March 2017, HIW requested confirmation that no services would be provided until registration, Dr Webberley was in a very difficult position. Her cohort of patients, who numbered up to 2,000, according to the letter from GIRES, had nowhere else to go. Dr Chaand Nagpaul CBE, the Chair, BMA General Practitioners Committee had written to Professor Terence Stephenson, the Chair of Council, GMC on 12 May 2016 expressing concerns about GPs assuming a role of prescribers in the context of transgender healthcare, which for most GPs was unfamiliar territory. Even if GPs were prepared to issue bridging prescriptions, that would not deliver long term treatment. These patients were an extremely vulnerable group who had turned to Dr Webberley since they were unable to receive treatment from GIDS on the NHS. A measure of their vulnerability is the lengths to which they had gone to obtain that treatment which was offered privately. Patient A’s mother explained in her evidence that she took a second job to enable her to afford private treatment from Dr Webberley.  Dr Webberley asked to speak to the Medical Adviser of HIW to explain the position. This was declined;
When Dr Webberley continued to treat patients, it was not clear, even to HIW, that she required registration or that she would be prosecuted for not being registered.
The conviction was three and a half years ago. It was in respect of matters which occurred four to five years ago.

42. Further in relation to both these wider public interest matters relating to the second and third limbs of the overarching objective, the Tribunal considered that the following matters also constitute mitigation:

Dr Webberley has no previous fitness to practise history;
Dr Webberley’s registration was made subject to interim conditions in May 2017 which effectively prohibited her from working as she could not obtain a supervisor for her adolescent transgender work. She was made the subject of an Interim Suspension Order on 26 November 2018 which remained in position until 2 February 2022 when it was replaced by the less restrictive measure of a further Interim Conditions of Practice Order. Effectively she has not been able to work for in excess of 5 years.

43. The Tribunal has reached the conclusion that it would be appropriate to close both cases which relate to the promotion and maintenance of public confidence in the medical profession and proper professional standards and conduct of the members of the profession with no action. There are in the view of the Tribunal exceptional circumstances justifying that decision as follows:

The finding of impairment in respect of Dr Webberley’s misconduct in failing to provide adequate follow up care is a sufficient mark of the Tribunal’s concern in the context of her having understood and remedied her failings in this regard;
The conviction is sufficient to mark Dr Webberley’s failure to obtain registration;
There were factors which reduced her level of culpability in relation to her continuing to treat patients while Online GP Services Limited was not registered as set out above in relation to the conviction;
Dr Webberley has had her registration restricted on an interim basis for an inordinately long period. Not only has this prevented Dr Webberley from practising medicine, it limited her ability to engage in wider professional activities, such as speaking at conferences, as invitations to speak were withdrawn. It would be thoroughly disproportionate to extend that period any further on these grounds;
There are no public protection arguments which apply to these aspects of the Tribunal’s findings of impairment.

44. The Tribunal, therefore, finds that a suspension order on Dr Webberley’s registration to address the impairment found on public protection grounds arising from paragraph 5(d)(iii) of the Allegation is the appropriate sanction in this case.

45. In determining the length of the suspension, the Tribunal considered whether it should take into account the interim orders imposed upon Dr Webberley’s registration prior to these proceedings. It concluded that it should not do so. The period of suspension which the Tribunal considers it should impose is that period which allows Dr Webberley the opportunity to demonstrate her level of insight into this aspect of the Tribunal’s finding of impairment. The Tribunal has determined therefore to suspend Dr Webberley’s registration for a period of two months. The Tribunal considered that this period will allow Dr Webberley sufficient time to demonstrate whether she has the necessary insight into the concerns identified by this Tribunal and that she has remediated her shortcomings. It is also the shortest practical period to make arrangements for a review hearing to take place.

Review

46. The Tribunal directs that before the end of the period of suspension, Dr Webberley’s case be reviewed by a Medical Practitioners Tribunal. A letter will be sent to her about the arrangements for the review hearing. The Tribunal considered that the reviewing Tribunal would be assisted by receiving the following:  A reflective statement from Dr Webberley setting out her understanding of how she failed Patient C by not discussing with him the risks to his fertility before prescribing GnRHa treatment and how she will avoid repeating that mistake in future cases of a like nature.

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