Social Work England carried out a “serious abuse of its power as a regulatory body” in allowing its fitness to practise (FTP) processes to be “subverted to punish and suppress” a practitioner’s protected gender critical beliefs.

That was the damning verdict of an employment tribunal in a judgment issued this week.

The ruling was to determine remedies to compensate social worker Rachel Meade for the harassment she received at the hands of both the regulator and her employer, Westminster City Council, through disciplinary and FTP processes related to her beliefs.

The tribunal ordered the two organisations to jointly pay Meade £40,000 for injury to her feelings, as well as £5,000 in aggravated damages, which are imposed when an act of discrimination has been carried out in a “high-handed, malicious, insulting or oppressive” way, it said.

Exemplary damages imposed on regulator

However, it then took the rare step of imposing exemplary damages of £5,000 on Social Work England. These are designed to “punish conduct that is oppressive, arbitrary or unconstitutional” and are “reserved for the most serious abuses of governmental power”, said the tribunal.

The panel of one judge and two lay members said that in its FTP process, Social Work England had taken “a pre-ordained view” that Meade’s beliefs were “unacceptable” and an “an institutional view to favour one side of the debate” on gender – that which supported gender self-identification.

In response, the regulator said it took the ruling “extremely seriously” and had “already started implementing [its] learning from this case”.

Facebook posts

The case concerned 70 posts that Meade made on her private Facebook account that prompted a complaint to the regulator from a fellow social worker.

They included links to a petition calling for male athletes not to compete in women’s sports, to a petition calling for female only spaces and to a satirical post which stated:

“Boys that identify as girls to go to Girl Guides. Girls that identify as boys to go to Boy Scouts. Men that identify as paedophile go to either.”

Both Social Work England and Westminster contended this post – referred to as the Girl Guides/Boy Scouts post in the original judgment – conflated transgenderism with paedophilia.

Fitness to practise and disciplinary cases

Following an investigation, Social Work England found there was a realistic prospect that Meade’s fitness to practise was impaired, with its case examiners’ report saying she had engaged in a pattern of discriminatory behaviour over an extended period.

It then agreed with her that she should receive a one-year warning, though Meade later rescinded her consent to this, meaning the warning was removed.

The regulator later received advice that there was no realistic prospect of a determination of impairment and so applied for Meade’s case to be discontinued. This was then agreed by an FTP panel.

Following Social Work England’s original decision, Westminster suspended Meade on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.

The suspension was not lifted until nearly a year later, and, in the meantime, she received a letter from her employer suggesting that she may pose a risk to vulnerable clients if she returned to work. After she did return, following a disciplinary hearing, Westminster placed Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.

However, after Social Work England ended its fitness to practise case, Westminster removed the written warning from her record.

What the tribunal ruled

In its original judgment, tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred. All fell within Meade’s protected rights to freedom of thought and expression, under Articles 9 and 10 of the European Convention on Human Rights.

For example, it said the Girl Guides/Boy Scouts constituted “a reasonable satire” and addressed a “legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position to have access to young and vulnerable girls”.

The tribunal concluded that Westminster’s disciplinary process constituted harassment, on the grounds that the council had taken the view that in the expression of her protected gender critical beliefs, Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.

In relation to Social Work England, the tribunal concluded that its “prolonged investigation” related to Meade’s protected beliefs and “created an intimidating, hostile and offensive environment for her” and, as such, constituted harassment.

Aggravated damages

In its remedy judgment, the tribunal said £40,000 was an appropriate sum for the two organisations to pay Meade in compensation for the injury she had suffered.

In imposing aggravated damages on Westminster, it referred to the council having contended that Meade posed a risk to vulnerable service users as “highly insulting and upsetting to her as a long serving social worker with an impeccable reputation”.

In relation to Social Work England, the tribunal said that its reformatted statement of the case against Meade, in July 2022, had been “insulting and oppressive” and “sought to demonstrate the claimant’s culpability”.

It also found that both organisations “in the conduct of the respective procedures demonstrated considerable animosity against the claimant on account of her gender critical beliefs”.

‘A serious abuse of power’

In imposing exemplary damages on Social Work England alone, the tribunal said that its actions “constituted a serious abuse of its power as a regulatory body”.

It had “allowed its processes to be subverted to punish and suppress the claimant’s lawful political speech, and to do so on grounds of her protected beliefs” and that, furthermore, it had “a pre-ordained view as to the claimant’s beliefs being unacceptable”.

The tribunal also criticised Social Work England for “its failure to offer any form of apology” to Meade following the original judgment, and said it had “demonstrated an unwillingness to accept that its actions were unacceptable and caused [Meade] considerable distress”.

As well as the damages, the tribunal recommended that Westminster, within six months, ensure that all of its managers and human resources staff receive training in freedom of expression and protected beliefs, including the implications of the Forstater judgment (see box above). The details of this should be shared with Meade, it said.

It recommended the same training in respect of Social Work England’s fitness to practise triage, investigation and case examiner staff, adding: “We consider that this is appropriate given the deficiencies in the process, we have found to have existed in the liability judgment.”

‘We take this case extremely seriously’

Colum Conway, chief executive, Social Work England

In its response to the judgment, Social Work England chief executive Colum Conway said: “As the national regulator for the social work profession we take this case extremely seriously. We want to reiterate again how we recognise this has been a particularly difficult case for Rachel Meade and all others involved.

“Gender critical views, namely the belief that sex is immutable, are a philosophical belief protected under the Equality Act 2010. We have already started implementing our learning from this case.”

He added: “We have already developed internal guidance for our fitness to practise team. The guidance considers concerns raised to us on the use of social media by social workers. In addition, we are in the process of updating and delivering training on the drafting of regulatory concerns, have started providing case law updates and implemented amendments to our regulations on the review of case examiner decisions.”

He said that the regulator would deliver training to its triage, investigation and case examiner teams on the Equality Act and the Human Rights Act, their impact on regulatory process and how to appropriately factor this into decision making. This would include training on freedom of expression and protected characteristics and would be delivered by an external legal trainer within two months.

Conway added: “While we remain committed to learning from this case and implementing next steps, we are still considering the remedy judgment and our options.”

The Professional Standards Authority, which oversees Social Work England, said, in a statement: “Through our performance review process, (in which we assess regulators against the Standards of Good Regulation), we will monitor how Social Work England responds to the employment tribunal judgment and its recommendation. Social Work England’s performance review period runs from January to December and we aim to report on this by the end of March each year.”

‘A huge relief that it’s finally over’

Rachel Meade

In response to the remedy judgment, Meade said: “It’s a huge relief that it’s finally over and that the [employment tribunal] awarded significant amount of compensation to reflect the serious nature of the harassment I experienced at the hands of my professional regulator and employer just for expressing legitimate beliefs and concerns.”

A Westminster City Council spokesperson said: “We have received the findings of the remedy hearing and will need to take a little time to digest before responding more fully.

“We have apologised to Rachel Meade and the points which emerged during the tribunal and remedy hearing are an important and helpful guide in clarifying what is acknowledged to be a rapidly evolving area of employment law.”

By Tim Spencer-Lane

In Rachel Meade v Westminster City Council and Social Work England (2200179/2022 and 2211483/2022), a social worker won multiple claims for harassment, on account of beliefs protected in law, against her employer and the regulator.

The claimant, Rachel Meade, is a qualified social worker in adult services, who started working at Westminster City Council in 2001.

Ms Meade described herself as feminist and holding gender critical views, which included the belief that sex is immutable and not to be confused with gender identity.

The complaint to Social Work England

The case focused on Ms Meade’s Facebook account, which had been set to private and included around 40 friends, including some work colleagues.

A social worker, who was a Facebook friend of the claimant, made a complaint to Social Work England about what was alleged to be the claimant’s transphobic comments on her Facebook account.

He also alleged that she had signed petitions published by organisations known to harass the trans community and donated money to causes which seek to erode the right of trans people.

Regulator begins investigation

Social Work England begun an investigation in November 2020. The case examiners focused on 70 posts, which included links to a petition calling for male athletes not to compete in women’s sports, to a petition calling for female only spaces and to a satirical post which stated:

“Boys that identify as girls to go to Girl Guides. Girls that identify as boys to go to Boy Scouts. Men that identify as paedophile go to either.”

Both Social Work England and Westminster contended this post – referred to as the Girl Guides/Boy Scouts post in the judgment – conflated transgenderism with paedophilia.

Social work’s initial response to complaint

In her response to the complaint, Ms Meade acknowledged that she had been “naively unaware that any posts she had shared or liked, any petitions she had signed, or any organisations to whom she had donated, were discriminatory or offensive. She said that she had not fully read or analysed the content some of the articles or links before posting. She acknowledged showing a lack of judgement in her use of social media.”

She also removed the relevant posts and unfriended any organisations or friends that may be seen as being critical towards minority groups. She then attended training on working with gender diverse and trans people.

Regulator’s sanction

Social Work England concluded that there was a realistic prospect that Ms Meade’s fitness to practise was impaired, with its case examiners’ report saying she had engaged in a pattern of discriminatory behaviour over an extended period.

However,  it said it would not be in the public interest to proceed to a hearing. Instead, the appropriate sanction was a one-year warning.

In particular it was noted there was no evidence that the claimant had acted in a transphobic manner whilst at work. Ms Meade initially agreed to this disposal.

Suspension from work

Westminster was informed of this outcome and suspended her on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.

The suspension was not lifted until nearly a year later following a disciplinary hearing, after which Westminster placed Ms Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.

Ms Meade appealed the decision, saying the sanction was excessive, oppressive and an act of unlawful discrimination, harassment and victimisation.

Request for regulator to reconsider

In the meantime, she had asked  the regulator to reconsider its decision. She stated that there was new evidence to refute the allegations made and which demonstrated that she had not acted in a discriminatory manner.

With Ms Meade having rescinded her consent to the accepted disposal, Social Work England was required to remove the warning from her registration record, in January 2022.

It initially said the matter would be referred to a hearing to determine whether her fitness to practise was impaired.

Fitness to practise case ended

However, it later received advice that there was no realistic prospect of a determination of impairment and so applied for the case to be discontinued.

This was agreed, in October 2022, by a fitness to practise panel, which found that the full content of the posts “did not contain slurs, or profane language, did not target individuals and did not incite violence, harassment or other concerning or illegal activities”.

Further, it found that the fact that much of the material in the posts was reposted from mainstream media sources, which it considered undermined the suggestion that they could cause offence or undermine public confidence in the profession.

Written warning removed

A month later, after hearing her appeal against her written warning, Westminster removed this from Ms Meade’s record.

She then issued claims for harassment and direct discrimination against Social Work England and her employer.

Decision of the employment tribunal

In Ms Meade’s case, the tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred.

All fell within her protected rights to freedom of thought and expression, under Articles 9 and 10, and none aimed at the destruction of any rights or freedoms, and so were not covered by Article 17.

Whilst some people may be offended, the tribunal noted that freedom of speech does involve the right to cause offence. It also considered it significant that many of the posts did not constitute the claimant articulating her own views, but rather forwarding links to articles or comments on television programmes pertaining to the gender critical debate.

The tribunal also felt that the posts were not outside the reasonable bounds of the legitimate manifestation of the claimant’s beliefs.

For example, it rejected the claim that the Girl Guides/Boy Scouts post had the effect of equating transgenderism with paedophilia. It concluded this constituted “a reasonable satire” and addressed a “legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position to have access to young and vulnerable girls”.

Balance between free expression and interests of offended

The tribunal concluded that Social Work England and Westminster had not struck a fair balance between Ms Meade’s right to freedom of expression and the interests of those offended by her Facebook posts.

The tribunal felt it was significant that it was only one person – the fellow social worker who made the complaint to Social Work England – who had been offended, and there was no evidence that Ms Meade’s views were expressed in the context of her professional duties.

The tribunal found that most of her claims for harassment against the two organisations succeeded, and would have amounted to direct discrimination.

Successful claims against employer

In relation to Westminster, it found that the basis for the disciplinary process was Ms Meade’s protected belief. For example, in its investigation, the authority did not identify posts that went beyond a manifestation of Ms Meade’s protected belief and constituted unacceptable conduct.

It concluded that the disciplinary process, which was of significant duration, constituted harassment, on the grounds that the council had taken the view that in the expression of her protected beliefs, Ms Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.

Successful claims against Social Work England

In relation to Social Work England, the tribunal concluded that its “prolonged investigation” was unwanted, related to Ms Meade’s protected belief and “created an intimidating, hostile and offensive environment for her”. As such, this constituted harassment.

It also found that Ms Meade felt under “significant duress” when she agreed to accept a sanction from Social Work England in July 2021 and feared that if she did not, a fitness to practise hearing would follow, which could lead to a more serious outcome. It concluded that she felt subject to an intimidating and hostile environment, which was also sufficient to constitute harassment.

Whilst the tribunal acknowledged that there are limitations on the right to freedom of speech, and the manifestation of protected beliefs, it did not consider that the threshold was reached in this case.

Social worker’s beliefs ‘considered inherently discriminatory’

The state of mind of both Social Work England and the local authority had been that the beliefs expressed were inherently discriminatory and transphobic and therefore unacceptable.

The approach should have been to accept that the claimant was entitled to her beliefs and the manifestation of them, but that certain posts were unacceptable with the reasons why being clearly and consistently set out. This did not happen.

Focus on wider gender identity debate

At the conclusion of its decision, the tribunal felt it was important to recognise the “high-profile public debate” between those supporting gender self-identification and those with gender critical views, including within and between political parties.

It was described as “self-evident” that there was no settled societal, political or legislative position regarding the rights of those seeking gender self-identification.

The tribunal went on to say that the views of the claimant were “not extreme” but rather “represented her expressing her opinion in an ongoing public debate.”

The fact that the debate was often vociferous, and on occasion toxic, did not mean that the right to freedom of expression in a democratic society should be restricted. The analogy was given of the Brexit debates.

Social worker’s views ‘could not be viewed as transphobic’

The tribunal also disagreed that the claimant’s views were the equivalent to an employee/social worker espousing racially discriminatory or homophobic views.

It stated that the claimant’s opinions could not “sensibly” be viewed as being transphobic, but rather her “expressing an opinion contrary to the interpretation of legislation, or perhaps more accurately the amendment to existing legislation, advocated for by trans lobbying groups to include, but not limited to, Stonewall”.

Remedy

At a separate remedy hearing, Ms Meade was awarded over £58,000 in damages from Westminster City Council and Social Work England  for discrimination relating to her gender critical beliefs.

This was the first time a regulator has been ordered to pay exemplary damages because of the manner in which it has carried out its regulatory function.

Tim Spencer-Lane is a lawyer specialising in social care, mental health and mental capacity law. He is also legal editor of Community Care Inform.

Responses to the judgment

Rachel Meade

Rachel Meade: “It’s a huge relief to be so completely vindicated after all this time. It has been a horrendous experience. This ruling makes it clear that I was entitled to contribute to the important public debate on sex and gender. I hope it will make it easier for other regulated professionals to speak up without threats to their career and reputation.”

Westminster City Council: “We apologise to Rachel Meade for the way she has been treated and the upset that has been caused. We acknowledge and accept the findings of the tribunal.

“As recent landmark cases have shown and the tribunal noted, the issues and policy making involving gender recognition and rights is a fast-evolving area. We will be carefully studying the points made in the judgement and considering what changes we need to make at Westminster City Council to ensure the best balance we can to support our staff, service users and our partners.”

Social Work England’s chief executive, Colum Conway: “The tribunal made findings in respect of Ms Meade’s claims against Social Work England. Following the judgment, all parties have the opportunity to consider the decision and their options. As such, we do not intend to provide further comment at this time. Any further updates will be published on our website.”

By Rob Preston & Mithran Samuel

Children under 16 experiencing gender dysphoria can consent to receive puberty blockers if their doctor deems they are competent to do so, the Court of Appeal has ruled.

In doing so it overturned a High Court judgment last December, which had said that it was highly unlikely that a child under 13 could give informed consent to the treatment, and very doubtful that a child aged 14 or 15 could, because of the nature of the information they would need to understand.

The High Court had indicated that clinicians should seek court approval to proceed with puberty blockers for children under 16, prompting NHS England to immediately require that such authorisation was sought to ensure treatment was in the child’s best interests.

It later modified this in the light of a subsequent family court judgment to enable parents to consent on their child’s behalf so long as the decision had been supported by a new independent multi-professional group. But since December 2020 no child under 16 has started on puberty blockers following referral from the national Gender Identity Development Service (GIDS) based at the Tavistock and NHS Portman and NHS Trust, inews has reported.

However, the Court of Appeal found that, while court applications may be appropriate in certain cases – for example, where there were disputes between doctors, patients and parents – clinicians would normally determine whether children were able to consent.

Following the judgment, the trust, which refers patients to two endocrinology clinics run by other trusts for the treatment, told inews it expected referrals to resume shortly.

Keira Bell, a former GIDS patient who received puberty blockers, cross-sex hormones and surgery before detransitioning, brought the original judicial review against the Tavistock, along with the mother of a child experiencing gender dysphoria on the GIDS’s waiting list. Bell had argued that the service should have challenged her decision to take puberty blockers at the age of 16, which she now regrets.

She said she was disappointed with the Court of Appeal ruling and would seek permission to appeal to the Supreme Court.

However, the Tavistock welcomed the Court of Appeal judgment, saying it “affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment”.

Competence to consent

The High Court had rejected the claim brought by Bell and her co-claimant that children were not “Gillick competent” to consent to receive puberty blockers, meaning they did not have sufficient understanding and maturity to fully appreciate what was involved in their treatment. It also rejected their claim that the information provided by the Tavistock to patients was misleading and insufficient to enable them to give informed consent.

However, it issued a declaration setting out what children would have to understand and weigh in order to be competent to consent. It then issued guidance, saying that there would be “enormous difficulties” in a child under 16 achieving competence, indicating clinicians would need to seek court approval to proceed with treatment.

In its declaration, the High Court had said children would need to understand not just the implications of taking puberty blockers but also of taking cross-sex hormone treatment, designed to help children transition to their experienced gender. This was on the grounds that “the vast majority” of those taking puberty blockers went on to take cross-sex hormones, which it said may well affect future fertility, sexual function and relationships. It also asserted that the child would need to understand the “unknown physical consequences” of taking puberty blockers and the “fact that the evidence base for this treatment [was] as yet highly uncertain”.

“The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree,” High Court judges added. “There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.”

‘Improper restriction on Gillick’

However, the Court of Appeal ruled that the High Court had “placed an improper restriction on the Gillick test” in its declaration.

This was because it presented as facts issues that were the subject of medical and expert dispute, notably that the vast majority of children taking puberty blockers went on to take cross-sex hormones and that blockers had unknown consequences and a highly uncertain evidence base. It had thereby turned these “expressions of judicial opinion” into a “statement of law”.

By contrast, the 1986 Gillick judgment, which concerned access to contraception, said that, in law, a child’s competence was based on them having sufficient understanding to fully appreciate what the treatment involved, but it was for clinicians to determine whether this was true in a particular case.

The High Court had also departed from Gillick in its guidance by generalising about the capacity of children of a particular age to achieve competence. It had also required applications for court authorisation in circumstances where, as the High Court had recognised, there was no legal obligation to do so, said the Court of Appeal.

“It placed patients, parents and clinicians in a very difficult position,” the Court of Appeal found. “In practice the guidance would have the effect of denying treatment in many circumstances for want of resources to make such an application coupled with inevitable delay through court involvement.”

Doctors to decide

The Court of Appeal found that doctors should be able to decide on a child’s Gillick competence generally and also whether to refer cases to court for a best-interests decision.

“As we have said, applications to the court may well be appropriate in specific difficult cases, but it was not appropriate to give guidance as to when such circumstances might arise,” the court ruled.

The Tavistock said the judgment respected “the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures”.

“It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment,” the trust said in a statement.

“This has been a fundamental part of the legal basis for health services for young people in this country and it is very significant that it has been reinforced so strongly in this judgment.”

The trust said it would work with commissioners and partners to improve the quality of care and decision making for its patients as well as the evidence base for treatment for children with gender identity issues.

However, Bell said the ruling did not address “the significant risk of harm” that children were exposed to by being given puberty blockers. Explaining her decision to seek permission to appeal to the Supreme Court, she said that the GIDS service sat “outside conventional medical practice and [had] become politicised”, meaning it was “inadequate to say ‘trust the doctor’”.

NHS to review treatment

Bell said she had “no regrets” about bringing the case and said it had been a “catalyst” for NHS England’s decision to examine the country’s approach to transgender healthcare.

Last year, NHS England commissioned Dr Hilary Cass to review of gender identity services for young people, including the use of puberty blockers and cross-sex hormones, and she is expected to publish her findings next year.

“This will set out wide-ranging recommendations including on the use of puberty blockers and the many contested clinical issues identified by the court,” a spokesperson said.

“An independent multi professional review group will continue to confirm whether clinical decision making has followed a robust consent process now that the endocrine pathway has been re-opened by the Tavistock.”

An NHS trust has been ordered to pay one of its social workers £20,000 after an employment tribunal ruled she had suffered “injury to “feelings” after blowing the whistle on practice concerns.

Sonia Appleby reported several concerns to managers at Tavistock and Portman NHS Foundation Trust about practice at the Gender Identity Development Service (GIDS), a specialist national service for children needing support with their gender identity.

The tribunal found Appleby suffered “detriment” in response to making five “protected disclosures” – issues raised by workers in the public interest – which is contrary to the Employment Rights Act 1996.

The GIDS assesses young people who have difficulties with their gender identity, provides therapeutic support and, in some cases, refers them to other hospitals for treatment with puberty blockers to give them more time to reflect on their gender identity. They may then receive cross-sex hormones as part of a gender transition.

Rising caseloads

Appleby, a social worker and psychoanalytical psychotherapist, has been the trust’s named safeguarding lead for children since 2004, a role that involves advising the board on child protection, strategically and in relation to day-to-day practice. She first reported concerns about GIDS in 2016, highlighting deficiencies in case recording and warning that rising referrals were having a distressing impact. GIDS’s caseloads had been rising since it became a specialised NHS service in 2009, a trend that accelerated when it became a national service in 2016.

Appleby made her first two protected disclosures in October and November 2017, respectively, in emails to her then manager – trust medical director Dr Rob Senior. These reported concerns from GIDS staff including a culture that made it difficult to report safeguarding concerns for fear of being labelled transphobic, and that some young children were “being actively encouraged to be transgender without effective scrutiny of their circumstances”. She also cited reports of the service’s director, Dr Polly Carmichael, being unwilling to listen to the concerns.

However, Senior did not respond, leading Appleby to forward both messages to him in January 2018, on return from a period of sick leave.

This led to a meeting with Carmichael in February – which constituted the third protected disclosure – at which they discussed her emails to Senior. Appleby subsequently emailed Carmichael with a record of the meeting and proposed actions, including that she would talk to GIDS’ safeguarding lead, Garry Richardson, on strengthening safeguarding leadership at the service. However, Carmichael did not respond.

‘Jimmy Savile’ remark

In a subsequent conversation with Richarsdson, Appleby warned that “if they were not careful a Jimmy Savile type situation could arise”, in terms of “an institution turning a blind eye to what was in front of them”. This was a reference Appleby routinely used in training sessions to illustrate the importance of staff vigilance regarding child safeguarding. Richardson, however, interpreted this as an attack on colleagues as being complicit in abuse.

Through the rest of 2018, Appleby raised further safeguarding concerns reported to her by staff, with Senior, Richardson and the Tavistock’s then director of children, young adults and families, Sally Hodges. These included concerns about children’s ability to give informed consent to medication, premature use of puberty blockers, high caseloads and staff feeling unable to raise concerns. Analysis by Appleby also found low levels of safeguarding supervision at GIDS, and of safeguarding referrals from it to other agencies.

Also that year, Dr David Bell, an adult psychiatrist and Tavistock staff governor, wrote a report to his fellow trust governors saying the GIDS “as it now functions and children’s needs are being met in a woeful (sic) inadequate manner and some will live on with the damaging consequences”.

Appleby asked Bell to remove the opening paragraph of the report, which said that she had “been closely involved throughout preparation and has read and discuss with me this final version to which she has made a number of very important contributions”, but he had already submitted it.

The tribunal found that, while Appleby agreed safeguarding was not being properly handled at GIDS, she disagreed with the tone of the report, which came across as an attack on the service’s management.

Dr Dinesh Sinha replaced Senior in 2018 as trust medical director and conducted a review of GIDS, during which Appleby made her fifth protected disclosure, details of an exit interview in which a staff member referred to a “climate of fear” at GIDS. Appleby’s reference to Jimmy Savile was raised with Sinha twice, by Richardson and another member of staff, during his review.

In July 2019, after Appleby’s return to work following another period of ill-health, she was asked to attend an informal meeting with Sinha regarding GIDS. However, an HR staff member was present and Sinha told her she would be receiving a letter about the Savile comment that would remain on her file, but without providing context as the remarks were made in confidence. The letter said that the comparison had made a colleague feel “very disrespected” and that, though this was not a formal procedure, Sinha warned he may need to investigate Appleby formally if there were further such reports.

 ‘The sense of injustice is obvious’

The tribunal ruled that this constituted a detriment to Appleby, for which the trust must pay her £12,500 in compensation.

Despite Sinha saying it was an informal meeting, the tribunal found Appleby was right to have seen it as a disciplinary process, and the outcome was, in some ways, “worse than a disciplinary warning”, as it was not time-limited and there was no right of appeal. There had also been no investigation; had there been one, Sinha would have found that the Savile example was one Appleby used routinely in training.

“The letter on her file contained an explicit threat that it would be taken into account later if there was a recurrence of an obscure event,” said the judgment.

“She had no opportunity to clear her name or get another view, as would happen if there was an appeal, and it was to remain on her file indefinitely, and it still is on her file. The resulting sense of injustice is obvious. Anyone would lose sleep over this.”

The tribunal said Dr Sinha’s treatment of Appleby “can only be explained as materially influenced by her disclosures, which were viewed by him (and others) as unwarranted interference, overstepping her proper role”.

The second area in which the tribunal found detriment to Appleby was in relation to staff being discouraged from referring safeguarding matters to her, despite her being the trust safeguarding children lead. Though nothing was put in writing, the tribunal found “there was a message being communicated to GIDS staff by Dr Carmichael at the time of the Sinha review, that they should not take safeguarding issues to the claimant, not because she was not a clinician familiar with the complexities (as had been suggested to some staff when they took concerns to the speak up champion) but because she was hostile to GIDS”.

“That must have been hurtful, and must have made carrying on with her duties painful and difficult, especially when the trust denied that had occurred, and was asserting that she bore the responsibility for any difficulty,” said the tribunal, who ordered the trust to pay Appleby another £7,500 for this detriment.

Trust to learn from ‘difficult situation’

In response to the ruling,  the trust said it “wholeheartedly supports staff raising concerns and has strengthened its mechanisms for doing so in recent years”.

“It is important that all staff can raise concerns without fear of detriment and have them properly addressed,” a spokesperson said.

“There is always room for improvement and learning from these difficult situations and we are looking carefully at what this decision means for us and what we should take from it going forward, including how we best support our staff and protect our patients.”

‘Last two years were brutal’

Appleby opened a crowdfunding page to help cover the legal costs of her case and posted a response to the ruling on the website last week.

She said the decision to instigate proceedings against her employer was a “nearly overwhelming experience” but that she was “very pleased with the outcome”.

“I want to thank you, my witnesses, my legal team and all of the very many people who have supported me during the tribunal process,” she said.

“The last two years, as a claimant and employee, have been increasingly brutal.

“However, I want to focus on you and to express my sincere thanks for your humanity and your financial support, without which I would never have been able to bring my case.

“Standing by me as you all did, supported the primacy of childhood, keeping our children safe, and hopefully sending a message that those who strive to do their jobs are not miscreants.”

Social Work England has defended its impartiality and commitment to human rights, and called for further discussion about social workers’ use of social media, after warning a practitioner over posts it concluded were discriminatory towards transgender people.

The case, concerning a social worker who shared dozens of posts on Facebook that were found to constitute “an extended pattern of discriminatory behaviour”, has sparked fierce online debate over the past week.

Questions have been raised about the regulator’s decision-making and sanction, which the social worker accepted, whether holding so-called ‘gender-critical’ views has any bearing on the ability of people to practise as social workers, and the case’s broader free-speech implications.

The regulator said in a response that the reaction “shows that a much broader conversation is needed on how best to support social workers to engage respectfully and professionally online when areas of ethical tension arise”.

Social Work England’s warning to the social worker over future behaviour, which stays in force for 12 months, came after officers decided there were no grounds to proceed to a formal fitness-to-practise hearing. It follows a recent High Court victory for a woman who lost her job after tweeting that transgender women could not change their biological sex, with a judge-led panel concluding that ‘gender-critical’ beliefs are protected under the Equality Act.

The report into Social Work England’s investigation, and its outcome, was taken down by the regulator, which a spokesperson said was “while we consider an issue of factual accuracy raised with us”. The report has since been republished online.

‘Derogatory and potentially discriminatory’

Social workers have previously been sanctioned as a result of views posted online.

In 2019, a social worker was given a conditions of practice order, with one of the factors considered relating to posts on Facebook deemed racially insensitive. In 2017, meanwhile, a social work student was expelled from a university course for calling homosexuality a sin – a decision that was subsequently endorsed by a judicial review, though this was overturned on appeal.

In this latest case, officers acting in response to a complaint from a member of the public reviewed “more than 70” screenshotted posts from the social worker’s Facebook account. These included them backing a petition against a charity supporting gender-diverse young people delivering training to public-sector organisations, and sharing comments appearing to conflate being transgender with paedophilia.

‘Case examiners’ – who review the evidence from investigations – said the social worker’s posts “could be perceived to be derogatory and potentially discriminatory” to members of the transgender community.

“They further consider that others who may not be from that community would also find these views offensive,” Social Work England’s report into the complaint, made by a member of the public in June 2020, said.

The social worker claimed she “did not fully read or analyse their content before posting” – something case examiners said “concerned” them – and since being investigated has undertaken training “to broaden their understanding of working with gender diverse and trans people”.

The social worker stated in submissions that she supported a feminist perspective, and said: “On reflection I feel that I may have been swayed by the mistaken view of other prominent feminists who felt that promoting transgender rights would impede on women’s rights. This was a gap in my knowledge base and this training has shown me how to work in a much more inclusive way.”

The social worker’s manager said they had confidence the social worker had never practised in a discriminatory way, and that she was competent and able to practise.

‘No public interest’ in full hearing

Case examiners considered whether the social worker had breached professional standards requiring social workers to:

• Use technology, social media or other forms of electronic communication unlawfully, unethically, or in a way that brings the profession into disrepute.
• Behave in a way that would bring into question my suitability to work as a social worker while at work, or outside of work.

“There is a realistic prospect of adjudicators establishing the statutory ground of misconduct,” Social Work England’s report said, on the basis of the social worker’s posts damaging the profession’s public reputation.

But case examiners concluded the social worker’s actions were not so serious that a full hearing would serve the public interest.

“[Case examiners] have also taken account of the social worker’s submissions about learning from their mistakes and moving forward,” the report said. “They are satisfied the social worker can continue to practise safely without restriction, therefore a swift resolution to the case is preferable.”

The social worker deleted the Facebook posts and accepted a warning, which the examiners felt was appropriate after considering whether or not her fitness to practise would continue to be impaired.

The published warning will remain for one year, with the regulator stating that “any similar conduct or matters brought to the attention of the regulator are likely to result in a more serious outcome”.

‘Conduct must not harm public or undermine confidence’

In its statement this week, Social Work England said “We are aware of the debate that’s taken place on Twitter over recent days in relation to professional practice and individual social workers’ positions on gender identity.

“We want to be clear that as an independent public body we are committed both to upholding human rights and to maintaining impartiality – as must social workers on our register who support some of the most vulnerable people in society.”

The statement added: “We are clear in our professional standards guidance that conduct on social media should in no way harm the public or compromise the support social workers provide to people. This includes undermining public confidence in the profession.”

Announcing a new look into guidance around social media and social work the statement concluded: “We will be reaching out shortly to encourage participation from across the sector and include people with lived experience to help take this work forward.”

By Leanne Taylor

On 22 December 2020, the Tavistock and Portman NHS Foundation Trust (“Tavistock”) lodged its application to the Court of Appeal for permission to appeal the Bell v Tavistock judgment. After a previous refusal of permission by the High Court, this is positive news for those concerned by the judgment.

These proceedings arose in a particularly challenging year for the transgender community, not least with the effects of a global pandemic, but also with an increasingly polarised public media debate on validity of gender identity, and governmental backtracking on legal changes that had been promised for several years.

Though the judgment will not be implemented pending the outcome of the appeal, the ruling has led NHS England to make the following changes to provision:

1. Children under 16 years can only be prescribed puberty blocking medication (“PBs”) where a court orders that it is in the child’s best interests.
2. Those under 16 years already being prescribed PBs by the Gender Identity Development Service (GIDS) must undergo a clinical review, and if it is considered appropriate to continue the treatment, a court must make the final determination on the child’s best interests, otherwise the treatment should be withdrawn.
3. Children of 16 and 17 years can be treated if their consent is capacitous, is given in the absence of parental dispute, and where the treatment is considered to be in the child’s best interests. Where doubts arise around best interests, the court should make the final determination.

If the appeal is unsuccessful, it is likely that these provisions will remain in force.

Concerns over judgment’s wider impact

It is without doubt that there are concerning gaps of knowledge pertaining to the long-term effects of PBs for children. Also concerning was the Tavistock’s inability to provide evidence on experiences of transgender treatment pathways into adulthood. It is entirely reasonable to expect more from clinicians, services and medical science in relation to medical interventions for children. However, international professional bodies for transgender health and human rights bodies Amnesty and Liberty have issued statements of concern about the broader impact of the judgment on transgender healthcare and well-being.

Listening to transgender voices

A lack of attention given to a broad range of voices from people who had progressed into adulthood having been prescribed PBs, or those who had transitioned in adulthood is apparent in the judgment. The effect of puberty upon children with gender dysphoria (“GD”) can be traumatic.

Unchecked, this has permanent effects, and impedes medical and social gender transition in the future. Stigmatisation and problems with social integration are sadly a feature of life for many people who transition in adulthood.

Puberty blockers as a gateway

The High Court’s consideration that puberty blockers are a stepping-stone to irreversible medical transition by way of cross-sex hormones also needs some thought. This was based on international evidence (see page 57 of the Bell v Tavistock judgment) suggesting the majority of those prescribed PBs did go on to further medical interventions and treatment. The Tavistock was unable to give these figures to the court for a variety of reasons.

Despite this, it seems odd that there was no consideration that the right course of action was taken for those children because they went on to take cross-sex hormones. A lack of information about positive outcomes does not necessarily equate to a broad concept of harm.

What about parental consent?

The General Medical Council’s guidance provides that, where a child requires medical treatment, clinicians are to consider whether the child has achieved sufficient understanding and intelligence to understand fully what is proposed. If the clinician considers the child as not sufficiently mature, then a person with parental responsibility can give consent for them.

The court will become involved where there is disagreement or dispute in relation to capacity or best interests. The Bell v Tavistock judgment disallows a child’s consent to PBs, and the Tavistock’s policy is to not act on parental consent where a child cannot give capacitous consent, in order to give the child control of the pathway. The judgment leaves the court as the sole arbiter on best interests for the child in this scenario. One wonders what the judgment might have been had the Tavistock merely changed its policy and accepted parental consent in relation to PBs, as is advocated here by barristers Nicola Newbegin and Robin Moira White of Old Square Chambers.

Accessing the law

Parents will now find themselves as a respondent to court proceedings on PB treatment decisions. If they wish to have their views presented according to the complex legal landscape in this area, legal representation would be advantageous. This comes at a cost, leaving those without resources to rely on the narrow eligibility tests of the Legal Aid Agency, and many low-income parents being denied legal advocacy.

The complexities that develop in this light for looked-after children is something social workers and guardians will have to come to terms with, especially given that research has found  a general lack of awareness around transgender issues within the profession.

Implications for social workers

The question that arises at this point is what does all of this mean for social workers? The British Association of Social Workers (BASW) Code of Ethics and the Social Work England professional standards hold concepts of social justice, self-determination, human dignity and well-being as core to all social work. Whilst the protection of vulnerable children and adults is a key focus, so is an acceptance of diverse identities, and valuing the voices of all.

Whatever the outcome of the Court of Appeal’s considerations in the Bell v Tavistock case, it is important that social workers listen to children when they express thoughts around their gender identity. They should understand that a lack of family support in relation to expressions of transgender identity can be damaging, and conversely that support of a child’s transgender identity is not inherently harmful (see page 4 of Transgender awareness in child and family social work education).

Social workers should ensure that children are referred to the appropriate health and social services to assist with the emotional distress and social exclusion that growing up with gender dysphoria brings. It is important to recognise that there are children who find peace after a social transition and benefit from the administration of puberty blocking medication. These children are able to then progress into adulthood according to their sense of identity and live fulfilled lives.

Leanne Taylor is a registered social worker and lecturer in social work and mental health law at the University of Kent, where she is part of the Trans Awareness in Social Work project.

Michelle Janas (PhD) trained as an immunologist and worked in research and experimental medicine for 20 years. She recently embarked on a career change into social work. This article was updated on 19 January 2021. 

On 1 December, a landmark judgment was delivered in the case of Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274. The High Court was asked to determine whether children experiencing gender dysphoria could give informed consent to receive puberty-suppressing drugs, by achieving Gillick competence.

The court found that competence to consent to such treatment was “highly unlikely” for 13-year-olds and “very doubtful” for those aged 14 or 15. While consent can be presumed for young people aged 16 and 17, medical professionals may want to seek court approval before treatment if there are doubts as to whether it would be in the young person’s long-term best interests.

The Tavistock and the two NHS trusts who administer the treatment appeal have been granted leave to appeal by the Court of Appeal and so implementation will be deferred until the appeal is decided.

Referrals ceased for under-16s

However, on the day of the judgment, NHS England, which commissions the Tavistock’s Gender Identity Development Service (GIDS), ordered it to cease referring patients under 16 to paediatric endocrinology clinics for puberty blockers unless a ‘best interests’ order for the child in favour of the treatment has been made.

It also ordered GIDS to review all current patients under 16 it had referred for puberty blockers, with lead clinicians either making a best interests application to the courts to determine what should happen or safely withdrawing treatment.

Although NHS England has commissioned a full review of services for children and young people experiencing issues with their gender identity, for the foreseeable future such medical treatment via the GIDS clinic will not be an option for children under 16 without a court order.

This is an important judgment for social work. GIDS provides social work support and also liaises with social workers already working with the children referred to it, while many practitioners work with children with gender identity issues.

‘An experimental treatment with potentially lifelong consequences’

There were two factors that combined to play key roles in this decision: that the treatment is experimental in nature and, because of this, there are unknown and potentially profound lifelong consequences that a child will struggle to comprehend for their adult self.

In this article I will refer directly to the judgment throughout and attempt to outline why the treatment was determined to be experimental, and how the experimental classification impacted on the ruling of competence. I draw upon my 20 years of experience in working in research medicine and early-stage clinical trials, as well as my interest in the ethics of social science research, which I have written about previously.

Puberty blockers (PBs) are formally known as gonadotropin-releasing hormone agonists (GnRHas). This is important as this medication was originally developed for a different use to how it was being prescribed at GIDS. These drugs act by supressing the release of the sex hormones and are typically used to treat prostate cancer and breast cancer, and to assist in fertility treatments in women.  Controversially, GnRHas are sometimes used to chemically castrate male sex offenders in other countries.

In children, these drugs are used to treat a very rare condition called precocious puberty, in which puberty occurs early at around the age of six. GnRHas halt this premature puberty until the child has reached the appropriate developmental age of around 12 – hence the name ‘puberty blockers’.

The diagnosis of gender dysphoria in itself is somewhat contested, but one which the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines as a “difference between one’s experienced gender and assigned gender, and significant distress or problems functioning”.

GnRHas were being prescribed by GIDS as an ‘off-label’ treatment – meaning the medication is not being used for its licensed purpose – to treat gender dysphoria in adolescent children after the commencement of normally timed puberty. Off-label use of medication is relatively common, particularly for paediatric populations. The caveat, however, is that there should be justifiable scientific evidence that the treatment is safe and beneficial for the patient. The safety data here is paramount, as it helps prevent catastrophic unintended consequences of untested medications, as seen in the thalidomide scandal of the 1950s.

A lack of evidence

The court found that for PBs, the evidence for safety and efficacy was lacking. Indeed, the judges found the absence of data on the age distribution of patients (until 2019-20), the proportion of children referred to it for the treatment with an ASD diagnosis and the percentage who move on to take cross-sex hormones “surprising”.

Also, an interim report from a GIDS Early Intervention Study (which commenced in 2011) concluded that for 44 young people who received pubertal suppression, “there was no overall improvement in mood or psychological wellbeing using standardized psychological measures” (para 73).

The judges also noted an incongruence between the GIDS claim that puberty blockers were “fully reversible” and other evidence, including the NHS website’s section on the treatment of gender dysphoria, which states, “little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria” (para 67).

Therefore, due to the lack of both safety and efficacy data on the use on GnHRas for gender dysphoria, the court has considered the treatment to be experimental in nature.

For experimental medicines to become licensed, they need to progress through a strictly defined series of clinical trials, starting from small-scale safety studies and then increasing in size and complexity as the efficacy of the treatment is tested. The design of the studies is agreed in advance, including all the data to be collected, and the patients are carefully monitored. It is an issue which is currently writ large in the public imagination, as we watch the Covid vaccine make its way through these hurdles. To date, GIDS has been unable to produce data from the types of clinical trials that would set puberty blockers along the road to licensing for gender dysphoria. But it has also not produced sufficient scientific evidence to justify their use as off-label medication.

Gillick competence

The court stated explicitly that it was not addressing whether the use of PBs for gender dysphoria was effective, but whether a child could consent to such experimental treatment. Two key issues were defined by the court: whether Gillick competence could be achieved and whether the information being given was adequate (to enable Gillick competence).

Gillick competence is the legal test, in which a minor can consent to surgical, medical or dental treatment in the absence of a parent or guardian. The child needs to show “sufficient maturity to understand what is involved “ (Lord Scarman, 1986). Whilst case law has made clear that the child does not need to comprehend “all the peripheral detail”, they do need to be “able to demonstrate sufficient understanding of the salient facts” (Cobb J, 2019).

It is important to note that the demonstration of Gillick competence is crucial for these children, as GIDS guidelines state that although the parents or guardian must also be in agreement, they cannot give consent on behalf of the child.

The judges considered both evidence presented and case law, and as it is not within my expertise to cover them all, (Marina Wheeler QC gives a neat summary). I will instead restrict myself to medical aspects. One of the pertinent pieces of medical information given in evidence was that practically all children (although, as stated above, GIDS could not give exact data) who started on puberty blockers progress to cross-sex hormone (CSH) treatment (testosterone for females and estrogen for males). Therefore, it was considered relevant by the court that a child was able to understand both the consequences of PBs and CSHs for Gillick competence.

The issues of “lifelong” and “life-changing” implications were raised throughout the judgment. These included the possibilities presented in evidence by GIDS regarding “uncertainty of apparent long-term physical consequences of puberty blocking on bone density, fertility, brain development and surgical options” (para 62).

Understanding future impact

The judgment cites several pieces of evidence regarding the court’s concerns on a child’s ability to understand the impact on future fertility and sexual relationships. This includes the GIDS testimony that for children these implications will always involve “some act of imagination” (para 122) and a witness statement from a 13-year-old trans boy who wrote, “I haven’t really thought about parenthood…I just have no idea what me in the future is going to think”. Also, Kiera Bell, who brought the legal challenge, stated in evidence, “It is only until recently that I have started to think about having children and if that is ever a possibility.”

In determining competence, the judgment states that a child must not only have sufficient understanding of the factors relevant to the present, but also be able to objectively weigh information relevant to the future (para 124). Thus, although a child might understand the concept of fertility loss, it is not the same as understanding how this might affect their adult life (para 139).

Induced sterility is a principal ethical dilemma in paediatric cancer medicine, as the treatments given for advanced or complex tumours can render a child infertile. However, as the treatment is usually a final life-saving option, sterility, although distressing, is perhaps considered acceptable. The court also refers to this to emphasise the gravity of these types of decisions by stating that “apart from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway” (para 149), a statement which gives context to the court’s justification for the high bar it has set.

Therefore, although the court acknowledges that a lack of evidence in experimental medicine is not a barrier to competence per se, it is the combination of this with the potentially profound lifelong consequences that a child will struggle to comprehend that has led it to conclude that Gillick competence for a child under 16 is highly unlikely to be reached, no matter how much information and support is given.

This judgment also gives social work pause for thought. Social workers, by virtue of the profession, are interested in issues of social justice and welcome diversity and difference. However, just as for the medical profession, we do need to ensure that foremost, we do no harm.