Thread by @tribunaltweets

Good afternoon. We shall be tweeting this afternoon's session in Helen Webberley's appeal against MPTS sanctions.

This morning's hearing is at threadreaderapp.com/thread/1635585…

HW - Helen Webberley of Gender GP
GMC - General Medical Council
MPTS - Medical Practitioners Tribunal Service
J - Judge

AB - appellant’s (HW) Barrister
PM - Peter Mant, barrister for GMC

We begin.

The second form mentioned this morning has been located and is handed to J

J: MPTS did not consider the form that was signed? That's odd. MPTS position is stronger with the unsigned form that's in the bundle.

J: Which we can still look at, as it is the one MPTS criticised.

PM: One could not allow appeal on grounds of the other form.
J: No, not suggesting that.

PM: Will speak briefly on the law then on the findings of fact. And then move to issue of discussing fertility specifically with the chld.

PM: So the law. Right of appeal is unfettered and says re-hearing; but [case] does not contradict this court's duty of deference to the tribunal. Obviously this is dependent on facts of any case.

PM: Have listed cases, won't go into. But wd like to draw attention to 3 factors.

First that where decision is re clinicial judgment, tribunal better placed than a court to judge.

PM: This was a specialist tribunal, entrusted by parliament, and while they may not be subject specialitsts (first trans case as we heard) they still have general expertise. High degree of deference due.

J: Don't know about "high", but yes some.
PM: Will leave degree to J of course.

PM: Next thing - [J and PM discussed some typos/errors in this P, good humoured]

PM: Requirement pt 52 is to establish that tribunal is wrong. If multi-factorial decision, can be incomplete picture of all factors, says court should be slow to interfere.

PM: Re the facts.
Common ground that fertility wsa *not* discussed with Pt C.
HW says explcitly she forgot.
We can infer from "forgot" that HW is accepting she should have done so, face to face.

PM: HW not necessarily accepting "with the child" but accepting shd have happened at face to face appt.
J: But with mother?
PM: Am saying we can't infer more than I said.

PM: Note here, by admin assistant I think, HW words, says did not talk fertility, was mentioned but then forgotten. We can see HW aware 8/12 of this error. She did nothing re it for 2 months.

PM: A month later 10/1 email - mother writes that family want to go forward with blockers. So, no discussion of it at that point.

PM: A month later still - consent forms. Still no discussion has happened. Says treatment options have been discussed, but that cannot be true.

PM: We can see that the new form also says nothing about fertility.
J: Better position? Do we talk appeal vs review?
PM: Am hesitating bcs -
J: We are not talking a mistake? Just, what do I do with this?

PM: Suggest just take as fact that that is the signed form. All we know is that one was signed, the other one not.
PM: Perhaps consider admitting on basis public interest?

J: Can we say whehter mother even looked at it?
PM: Presumably glanced, but.

PM: There is nothing in any of the emails describing probable pathway from blockers to further hormones. Nothing said at a all about risks re fertility, other than one here from the admin assistant. Very limited extent.

J: Let me look at it.
[reads]

J: It does say clearly "could make you infertile" but you are right, nothing re pathway.

PM: Nothing at all re what mother has told child, or what child then understood.
J: Whose duty to obtain that?
PM: I say, the doctor. To ensure that patient understands treatment.

PM: HW whole model based on "consent". She has said so again and again. Cannot now say "does not apply really to this patient". No expolration at all. Incumbent on HW to obtain from mother confirmation that child understands/consent. Didn't happen.

J: Did this feature in GMC case?
PM: See Dr kieran's evidence. Mr Jackson's submissions, he points out if dr is relying on consent, she can't say "if that didn't work I don't need it, can use parent". Can't change horse like that, for good practise.

PM: This is re standards, not legal loopholes.

PM: Next - no evidence child unwilling to make decision. This is not case of child *choosing* to delegate - no evidence of that.

PM: Moving on to discuss why we say there is a duty. In my skeleton. Looked at guidance - DfH re informed consent, re adverse effects of blockers, recommends information *and* counselling re fertility.

PM: California guidance recommends discussion of fertility perservation techniques too. Notes that most children on blockers go on to other hormones.

J: Does not say 95%
PM: California guidance says most -
J: but does not say that that is the *advice* that must be given? Surely must support autonomy of patient deciding. Must give information but not say "slippery slope"?

PM: Duty is to give clear and complete information. Studies here that blockers may not be neutral act, may confirm.
J: Stronger than that isn't it? Says that will usually concretise? Was what Mr Jackson pursued?

PM: For purposes of this appeal - not GMC's role to decide on that - but, duty is to inform that vast majority do go on to next step, and that profound implication for fertility of that. Part of pathway. Let's look at form.

PM: Talks of changing body "to that of male" - must mean CSH, not just blockers pausing puberty.

J: Looking at Dr Kieran's evidence. Says mother or child must be told re fertility, because of move on to testosterone. Do they have to be told, 95% chance of T?

J: Or is it more neutral - "the pathway is, this is what would happen, so we need to think what to do while on blockers" - ?

PM: It is common ground that vast majority do proceed to CSH -
J: But where is evidence that patient must be told that explicitly?

PM: If we look at Dr K's evidence.
[all look this up]

PM: First 3 paragraphs. Says not discussed with young person directly, failure of consent, missed chance to evaluate capacity. Says preservation is lengthy process, so needs thinking well ahead.

PM: And then says while PB's can reverse, cannot treat pathway as reversible bcs overall it is not.

J: What does Dr K mean by "it" - fertility?
PM: Yes

J: Can be read 2 ways - 1) I the Dr know 95%, so must discuss fertility or 2) must discuss that it's 95%. Where do we find the latter?
PM: See tribunal finding of facts, weight on 95%
J: True.

PM: Needs to be some indication this is a pathway.

J: There is less difficulty with that. If all one told patient was "x years on blockers" there'd be no point. Must open up horizon to next steps of treatment.
PM: Yes
J: Did this doctor stop at that first point? Was she X-examined on it? That she only discussed PBs not future?

J: That would be gross derelection of duty, which you don't allege?

PM: We can compare perhaps with chemotherapy followed by surgery. There is considerable evidence that PBs do directly lead to further interventions.

J: We see Dr Klink saying that once young person takes PBs they want to move on.
J: We are looking closely at the reasons in the findings of fact. That some view of pathway, ongoing treatment, must be given. Not sure it was not ... where are we going Mr Mant?

PM: If we look at the determination.
PM: We see the 95% here. And then here summary of emails. And then finding that the body of the charge is made out - that no discussion with Patient C personally.

J: Here in 588? What are the 2 points?
PM: First is that there was no discussion with C, so made out. Second is saying the emails are not sufficient.
J: Because?
PM: Bcs re fertility in lifechanging treatment.

PM: Significance of this decision as start of pathway. And secondly practical reason - preserving fertility is lengthy, so cannot be left till later. Medically.

J: I read 588 as referring back to 584. Because of pathway, CSH being lifechanging, and is saying that emails don't make that point. Though forms do mention it. Citing wrong email?

PM: Accept there are limits, but, this was a very complex and lengthy hearing. MPTS did not know at this stage wd end up at this court or even that there would be sanctions, this is just the fact finding.

J: Yes very long - and very fair to Dr, they find "for" her on many points.
PM: Yes shows tribunal was careful and considering all carefully.

J: And why should I insert in 588 phrase "with patient C personally"?
PM: Because para does not make sense without it.
J: I see, yes.

PM: Body of charge is made out, it's saying - no discussion with C. Then is asking, does this amount to failure to provide good clinical care. I think that is right way to proceed; establish fact then look at what else was done.

J: Could it not be simpler? Did discuss some risks but not to fertility, but it need not follow whether that is good clinical care. Where is this addressed?

PM: Again need to piece together. Informs this para [] -
J: Could be poor case for at least 2 reasons. One being "must be with patient, cannot substitute". Or, another "discussion between Dr and mother not good enough". Not clear which, from this.

PM: Tribunal found enough to know that what happened was not enough. We can posit a way that *would* have been OK, but, it's clear that that didn't happen.

J: Not clear that panel considered all the relevant emails. Mother may have understood it all. We don't know her education level etc. Emails do show some education and knowledge. But, Dr normally makes that assessment.

J: I have to make decision, not refer back to tribunal, nobody wants that.
PM: This was point re deference to tribunal.
J: But I can't defer to something not apparent.
PM: I think consider in the whole, piece together.

PM: Back to my skeleton. We see Mr Sterns waving emails at witnesses but asking no questions.
J: Indeed. Not good enough, but what I can I do.

PM: We could take Dr Klink's evidence as unchallenged, as not questioned on it.
J: Hmm tricky.
PM: Obviously must weigh against other evidence.

PM: Re Dr Schumer -
J: TBF to Mr Stern. Did find some of Mr Jackson's crossX confusing. Very complex case on the day. On the 85 days.

PM: Yes - cannot really over-rely on transcript in something so complex.

PM: So re Dr Schumer. His evidence was that can be v difficult to discuss fertility with younger children and parental role important. But child should be present. 3-way: Dr, child, parent. Does not criticise HW but does delineate much more nuanced set-up.

J: Perhaps at this appeal. Perhaps parsimonious view - that tribunal entitled to rule - perhaps that's all you need.
J: There is also the face to face point and the pathway point. Was Dr Kierans questioned re f2f?
PM: Think no.

PM: Moving on to consider case of AB. [NB this is a patient I think, not the barrister]

PM: If we look at HW description of approach. Letter here to GP re shared care arrangements. Outlines readiniess criteria from WPATH SOC7. Capacity + consent is whole model. Confirmed by HW witness statement.

J: Her own docs show v interested in consent?
PM: Yes.

J: I am reading AB through Gillick lens, that if young person fully can, then can go ahead. But if doubt/partial, Lieven says, parental consent does not disappear, but can be applied when patient *can't*.
[ah! AB is previous case - the parental one post Keira Bell]

J: But this is not a case of child allowing parent to decide instead of child
PM: Indeed that's what I am saying.

PM: WPATHSOC7 says need child consent, but, should also get parental consent bcs of seriousness of treatment.

J: This doesn't take us further re face to face / in person consent.
PM: Yes this is why we looked at emails. Dr can not have been certain parent actually *had* obtained child's consent.

J: Can I read that into 588? It isn't dealing with consent, it's dealing with information.
PM: Yes. Provision of information is a precursor to consent, but that's a different point.
J: Quite tricky.

J: Allegation is quite narrow. Did not discuss risk to fertility.
PM: Yes.
PM: We do need to jump around. If you look at the determination on misconduct. Dr Kierans cited. Capacity for informed consent.

J: Says, first reason for the discussion.
J: Are you coming to the reasons for serious misconduct?

PM: Yes. I say, read it with the findings of facts; different docs but drafted at the same time. So we have analysis of Dr Kieran. Need to read as whole. that the one facetoface mtg was the right place to discuss, and didn't happen.

PM: ruling is clearly aware of the emails. Summarises HW position here [numbers]. Analysis not detailed but we can see the tribunal did weigh. Accept that determination cd have been better drafted but it does say that was a key juncture.

PM: J you were critical of this - damned if do, damned if don't. But, it's clear that there was long period when could have been put right - but Dr took only v perfunctory steps to address, and tribunal says this was not sufficient.

PM: Talk here of "permanent". Reference to pathway. Perhaps overstatement, but read in context of ruling as a whole it's perhaps not.

J: Meaning that CSH would be permanent, or at least serious risk of, and very significant?
PM: Yes. And Dr Klink's evidence too - says must proceed on assumption of permanence.
J: What point of time is tribunal looking at here?
PM: Initial consultation, see here.

PM: So moving to impairment and sanction, will be brief
J: One more minute, just looking at 120-121

J: They are conducting assessment about how serious. Accepting Dr Kierans? Would still have to assess what did happen and how good or bad it was. Would still have to make assumptions re communication with the child.

J: True that they are not stopping the clock at first appointment, considering whole history, but they have to say "at least she did X".
PM: That is addressed a bit in the impairment decision.
J: I see.

PM: They note that HW refused to accept she should have discussed with C, in reflective statement. But they are acknowledging what happened.

PM: Again must read across the rulings. Tribunal is not ignoring it, they are sayijng not sufficient.

J: can see that *if* it's serious misconduct not to discuss in person with C, then Dr's failure to acknowledge that wd be material. Still Q about what to make of the emails. Lots of things could be made.

PM: We do have further analysis at the sanctions stage.
[they read]
PM: This is perhaps clearest setting out of what cd be called mitigating factors - bullet points.

PM: They say explicitly that seriousness diminished by this, but they still find serious misconduct. Explain what they have taken into account, but they still find it.
J: They say "extensive" here. We had "perfunctory" earlier.

PM: My submission is that tribunal found that even with all that in account, still needed sanction to protect the public.
J: Let's look at the emails.
PM: [page numbers]

[reading going on]

J: Ending at 465
PM: Yes
J: Says she wanted to have discussion but overlooked it.
J: I think Dr is saying she would have inferred from eg body language between mother and child.

PM: But, initial note says it was omitted. Email explicitly says so. No asking parent to discuss properly with children. Nothing like that.
J: Hmmmm

PM: Once tribunal has found serious misconduct. Then almost inevitable to find risk of re-occurrence. Dr will not say she would do anything difference. And sanction guidance is then clear it would be truly exceptional to apply no sanction.

PM: Sanction is about as mild as possible - the shortest possible period of suspension. Unimpeachable decision.

J: Says here tribunal surprised Dr did not discuss fertility because v important in transgender medicine. Is that the misconduct
PM: I read that as, not the *only* part of it.

AB: 3 points if I may.
AB: Two consent forms. Both do talk of pathway, evidence that this was put to patient. Patient C and mother both well aware of pathway. "To male"

AB: 2nd point is the AB judgment. Issue of consent of C as well as of mother. Judge Lieven says, pt who is Gillick competent can exercise by delegating to parents, who can consent. So disagree that Lieven is limiting to cases where patient can NOT consent eg unconscious.

AB: Dr entitled to proceed on assumption that parent consent is valid.

AB: 3rd point. Analysis in MPTS ruling. Looking at what point in time, you discussed with PM. Talk of key juncture, initial consultation -
J: Phone one?
AB: No must be face to face one I think

J: Could be either but OK
AB: Point is, focus on that initial conversation means they are restricting their consideration of misconduct. Means they are considering things wrong. Fatal flaw
[Missed some of this]

J: These sections give no weight to the emails?
AB: No

J: If this were a review we could send it back, but ..

J: This case is very finely balanced. Exquisitely so. I don't mean 'beautifully'. Up to me to decide how to weight what.

AB: Yes.

AB: We invite you to find that the findings of fact are not adequate, that emails not considered properly. That there is no finding of fact that there *should* have been f2f discussion.

AB: My submission - more than adequate info about "pathway".
AB: Or, if you find findings of fact are OK, to find that the serious misconduct does not follow from the facts.

J: Well, I don't only do easy cases. To what extent can I allow my own view of someone 10 years old might understand about fertility? Am struggling a bit; don't know much about the child. All anonymous but ... child is adopted, birth mother heroin addict. Child is dyslexic.

AB: There is a finding of assessment of competence.
J: Yes but re fertility ...
AB: Psychologist had spent some time with C before HW say. Tribunal refer to this.
J: True.

AB: It would not be about permissibility of your deciding, it's about the correctness of the MPTS findings. I say, overwhelmingly possible for you to decide that HW should have had face to face, but, that HW's own course also acceptable.
J: Yes and 200 mile trip. Easier by email

AB: But tribunal don't put the emails into right context.
J: You are not saying I should remit to MPTS for reconsideration?
AB: No
J: Mr Mant, for GMC? If I find error, should case be remitted?
[missed answer]

J: If this were erasure not 2 months. Very important case. Think I can't send it back. Can I have copy of each consent forms, and that sections of the rulings that pertain to them.

J: Am going to reserve judgment. Will circulate draft ruling to counsel for any corrections, and we will agree any order in advance, in writing.

J: I may have sounded critical of Mr Stern and Mr Jackson. Don't read too much into that HW - that is just how these cases go. Thank you both for arguments etc.

[END OF HEARING]

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