en English

The final day covered the Chair’s legal instructions to the Tribunal, who will now recess to make their deliberations before announcing the verdict on October 15th.

The Chair’s instructions for the tribunal covered the burden of proof, which the Chair said was on the GMC, who must prove each allegation. Dr Webberley is not obliged to prove or disprove anything. He stated that the standard of proof is the balance of probabilities. That means that a fact will be proved if the evidence establishes that it is more likely than not to be true.

The Chair cited case law on the Bolam test, he said, “It is sufficient if a doctor, surgeon, midwife or nurse follows a practice adopted by a recognised body of medical opinion. If there is such a body of medical opinion and it is followed, then the medical practitioner will not be liable for any adverse outcome despite the existence of another medical practice that would have adopted a different course which could or would have produced a better outcome.” Given that several of Dr Webberley’s witnesses were highly qualified and respected clinicians, and they all endorsed her practices, this citation by the Chair seems very promising.

Regarding the testimony of the experts, the Chair stated, “Expert witnesses give evidence, opinions to assist on matters of a specialist kind which are not of common knowledge. As with any other witness, it’s the Tribunal’s task to weigh up evidence of the expert which includes evidence of opinion and to decide what evidence they accept and what they do not.”

“Factors capable of undermining the reliability of expert opinion or detracting from credibility or impartiality may assist the Tribunal in evaluating & assessing expert evidence. Completeness of the information available to the expert and whether the expert took account of all relevant information in arriving at the opinion.” This perhaps relates to the various pieces of evidence that the GMC failed to give their own expert witnesses.

In relation to the lost or impartial evidence the GMC presented and on which much of their case relies, the Chair gave these instructions, “Lost or missing material could put Dr Webberley at a serious disadvantage, in that documents and other materials which she’d have wished to deploy aren’t before the tribunal. The Tribunal should take this possible prejudice to Dr Webberley into account when considering whether GMC has proven their case.”

Despite repeated attempts by the GMC’s Mr Jackson QC to raise concerns about the Gillick competence of Dr Webberley’s patients, the Chair’s comments on children’s capacity to consent were unequivocal, “Like adults, young people aged 16, 17 are presumed to have sufficient capacity to decide on their own medical treatment, unless there’s significant evidence to suggest otherwise. Children under the age of 16 can consent to their own treatment.”

“If they’re believed to have enough intelligence/competence/understanding to appreciate what’s involved in their treatment. This is being Gillick competent. A person lacks capacity if their mind is impaired or disturbed, which means they’re unable to make a decision.”

The Chair read from Lord Scarman’s determination on Gillick, “Nor has our law ever treated the child as other than a person with capabilities and rights recognised by law. When applying these conclusions to contraceptive advice and treatment it has to be borne in mind that there is much that has to be understood by a girl under the age of 16 if she is to have legal capacity to consent to such treatment.”

He referenced the AB and CD v Tavistock judgment, “Is there a special category of medical treatment requiring court authorisation, and do puberty blockers fall within it? The Court determined that there was not. It follows therefore that a parent can give consent to hormone treatment if a Gillick competent has not given consent but has not objected or if the child is not Gillick competent.”

The Chair pointed out that while Tavistock and Portman have their specifications set out, Dr Webberley was not under the NHS, but working as a private practitioner at the time of the alleged offences.

Referencing AB and CD v Tavistock, the Chair stated, “This was a case where the court was considering whether the parent could consent to the ongoing treatment of puberty blockers for a child who, although competent, hadn’t given further consent because of lack of time or opportunity.”

“In the present case, the parent and the child are in agreement. Therefore, the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick competence in respect of the specific decision even where both the parents and child agree. In my view it does not. The parents retain parental responsibility in law and the rights and duties that go with that. One of those duties is to make a decision as to consent in medical treatment cases where the child cannot do so. The parent cannot use that right to “trump” the child’s decision, so much follows from Gillick, but if the child fails to make a decision then the parent’s ability to do so continues.”

The Chair finished giving his instructions to the tribunal with a statement on the allegation of dishonesty, “Where it is alleged that a doctor is dishonest, it is for the GMC to prove that dishonesty. It is not for the doctor to prove that he or she was honest. The burden of proof remains on the GMC.”

Following the closing instructions the GMC counsel Mr Jackson QC attempted a final effort at pathologising trans people and questioning their capacity to consent. This was despite the Chair’s recent instruction that clarified the legal position; parents of trans children are capable of consenting for them.

Given that in all three patients cases’ A, B and C, the parents and children all consented, it was a final desperate effort to make Dr Webberley look like she had done something, anything wrong.
A pitiful, last-ditch attempt to make a case, where – as the last 11 weeks have clearly shown – none exists.